Yesterday the Supreme Court heard argument in Dobbs et al., v. Jackson Women’s Health, a case involving an abortion clinic’s challenge to a Mississippi law prohibiting abortions after 15 weeks gestational age absent medical emergencies or severe fetal abnormality. The Court granted cert on the singular question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” During an early exchange with Mississippi Solicitor General Scott Stewart, Justice Sotomayor challenged the state’s claim that it had legitimate state interests in protecting fetal life: “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it --”

The Justice continued, “--because it assumes that a fetus's life at --when? You're not drawing --you're --when do you suggest we begin that life?” Before Mr. Stewart could respond she added “Putting it aside from religion.”

Mr. Stewart responded by noting that the Court has long recognized that the unborn life at issue in abortion cases is, at a minimum “a human organism.” He continued, “And I think the philosophical questions Your Honor mentioned . . . those are all reasons to return this to the people because the people should get to debate these hard issues, and this Court does not in that kind of a circumstance.”

Justice Sotomayor immediately shifted the conversation from her first suggestion that Mississippi’s efforts to protect unborn children were necessarily grounded in religious beliefs, raising the specter of Establishment Clause violations. Instead she accused the state of “forcing women who are poor --and that's 75 percent of the population and much higher percentage of those women in Mississippi who elect abortions before viability --they are put at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability.”

Setting aside the Justice’s dubious claims about the extent of poverty of women seeking post 15-abortions, and inaccurate statistic about the comparative safety of abortion after 15 weeks gestation versus carrying a pregnancy to term, the juxtaposition of the state’s concern forunborn children (purportedly illegitimate), with concern for poor women seeking post-15 week abortions (apparently permissible if not desirable) suggests either an inarticulate claim of religious hypocrisy or someone floundering to find a successful line of attack.

Justice Alito attempted to sort the ambiguity, or at least clarify the existence of secular support for protection of the unborn by asking “General, are there -­are there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?”

While the Solicitor General’s response could have more neatly disposed of Justice Sotomayor’s implicit religious establishment claim, he recognized the false nature of her charge that the law was impermissibly religious. “I --I believe so. I mean, I think there's a wide array, I mean, of --of --of people of kind of all different views and --and of no faith views who --who would reasonably have that view, Your Honor. It's --it's --it's not tied to a religious view and I don't think, were it otherwise, this Court's jurisprudence would --on this issue would run right into some of its religious exercise jurisprudence.”

Notwithstanding criticism of other aspects of Justice Sotomayor’s questioning and comments, in critiquing the Mississippi law as an establishment of religion, she is simply echoing charges made by abortion advocates since the Court created the right to abortion in Roe v. Wade. As Justin Murray noted in Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases:

 

The core justification that Blackmun provided for refusing to say when life begins is, implicitly, an Establishment Clause argument that blends together the three objections introduced in Part I. He emphasized the religion-related divisions surrounding the issue of fetal personhood (a political-divisiveness argument), the profound ethical and anthropological content of that issue (an ultimate-concerns argument) and, to a lesser extent, the impossibility of resolving it with secular methods of reasoning (a faith-versus-reason argument).

 

Professor John Breen offers a different analysis.

Although Justice Blackmun’s majority opinion referred to religion on several occasions, these references were not central to the Court’s holding. The Court did not base its decision on either free exercise or establishment clause principles. Rather, the Court’s references to religion were part of Justice Blackmun’s strategy in writing an opinion that “place[d] some emphasis upon[] medical and medical-legal history” and what Blackmun understood “that history [to] reveal[] about man’s attitudes toward the abortion procedure over the centuries.”

Breen goes on to note:

[D]espite the continuous effort to portray the pro-life position as inherently religious, and thus illegitimate as a basis for law, the claim has received little traction in the courts. The most notable exception to this has been the opinions of Justice John Paul Stevens in three cases: Thornburgh v. American College of Obstetricians and Gynecologists, Webster v. Reproductive Health Services, and Planned Parenthood of Southeastern Pennsylvania v. Casey.

 

Justice Sotomayor’s attempt to resurrect what Breen and other legal scholars have characterized as a “major ploy in the ongoing abortion controversy [by] supporters of abortion rights to smear opponents as acting out of religious bigotry,” is deeply troubling, especially given many political leaders’ continuing claim that protecting unborn children would be imposing their “personal religious beliefs.” While we sadly have come to expect such behavior from our political class, one would hope for better from a sitting Supreme Court justice.

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