In late July the U.S. Supreme Court’s in-box was clogged with dozens of secular and religious briefs that oppose its 1973 Roe v. Wade decision, which established women’s right to abortion, further defined in the 1992 Planned Parenthood v. Casey case.
Next up, watch for briefs that back the high Court’s existing abortion-rights regime, which are due by mid-September. There should be keen journalistic interest in which religions decide to bless “pro-choice” policies and why, with likely contentions that 1st Amendment religious liberty requires legalized abortion even as other Christian and Jewish thinkers disagree.
The media are well aware that the Court’s upcoming decision in the Dobbs v. Jackson Women’s Health case (docket #19-1392) will be epochal, and the new briefs show the issue is as politically contentious as ever.
Dobbs involves rigid abortion limits even before fetal “viability” as legislated by Mississippi.
In response, fully 25 of the 50 states, all with Republican attorneys general, are asking the Court to scuttle Roe and Casey. Also, 87% of the Republicans in the U.S. House and Senate, from 40 states, want the two decisions overturned “where necessary” while lower courts clean up legal muddles. Also filing on this side are 396 legislators in 41 states.
Briefs also come from “pro-life” or religious physicians, nurses, and attorneys, “pro-family” organizations, and notable intellectuals like John Finnis of the University of Oxford, Robert George of Princeton University (click here for his recent tweetstorm), and Mary Ann Glendon of Harvard Law School.
Also Dr. Ben Carson, the world-renowned pediatric neurosurgeon and Donald Trump Cabinet member. He argues not from his Seventh-day Adventist faith but from embryology, saying the existence of a “new unique human life” at conception is “objective scientific fact. ” He considers life to be a “natural right” that “does not depend on theology.”
Writers will find a similar approach in the most important religious organization brief. It argues mostly from general and secular legal principles with only secondary emphasis on religious traditions such as the Second Vatican Council’s decree that abortion, like infanticide, is an “unspeakable crime.” This brief (.pdf here) was formulated by the U.S. Catholic bishops’ conference (contact General Counsel Anthony Picarello at 202-541-3300 or apicarello@usccb.org), aided by church-and-state legal scholar Carl Esbeck at the University of Missouri 573-882 6543 or esbeckc@missouri.edu).
Joining in the Catholic brief are the assembly of canonical Eastern Orthodox bishops (that rarely enters Supreme Court cases), and three entities that well represent conservative Protestantism, the Lutheran Church-Missouri Synod, National Association of Evangelicals and Southern Baptist Convention public-policy agency. (Likeminded officials of The Church of Jesus Christ of Latter-day Saints and Orthodox Judaism did not join this brief, nor has Islam participated.)
The brief raises the following secular contentions:
* Abortion is unlike most personal decisions because another life is at stake.
* The Constitution nowhere recognizes a right to abort.
* The 14th Amendment “due process” basis for Roe is invalid because when it was ratified 30 of the 37 states outlawed abortion.
* The Court offered no reason for drawing lines at fetal “viability.”
* The test of avoiding an “undue burden” on mothers is subjective and “unworkable.”
* Abortion jurisprudence has been confusing and unstable for decades.
* Medical ethics should protect life and disallow inflicting unnecessary pain as abortion does by week 10 of pregnancy.
* Such issues are not the business of courts but should be settled by “the People through their elected representatives.” Otherwise, courts appear “political,” which lowers their esteem.
The Mississippi dispute all but overshadows the coming Supreme Court term’s case of Carson v. Makin (docket #20-1088). At issue is whether Maine violates the U.S. Constitution by funding students at private schools — but not if a school provides religious instruction.
Other church-state issues in the pipeline that may eventually reach the Supreme Court: Government’s power to protect national security secrets when Muslims protest that the F.B.I. targeted them for refusing to spy on fellow believers. A Catholic hospital’s claimed right to refuse transgender surgery. A Catholic agency’s bid to avoid New York State’s mandate that medical insurance cover abortion. And an Apache campaign to preserve a sacred site set to become a copper mine.
FIRST IMAGE: Graphic from the Family Research Center news blog.
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