Tuesday, May 01, 2007

Do we need to worry?

There has been some talk, after the supreme court recently upheld a ban on partial-birth abortions by a 5-4 majority, that the five Catholic members of the court are making judicial decisions based on their religion. While the argument certainly can be made on its face, there is no evidence that this is true in any real sense. To me, the split in the court is not on religious grounds, but rather on differing interpretations about the scope of privacy allowed by Roe v Wade. To wit, 5 members of the court believe that a ban on partial-birth abortions is allowable under the framework set by Roe, and 4 do not. Nothing more, nothing less. Of course, if you read the opinion, it surely doesn't look that simple (and it isn't), but at the very least the decision was made arguably on constitutional grounds, and any debate is based there, not on religion.

There are certainly some troubling elements in this decision; the fact that at least part of the reasoning is based on the notion that a woman might later regret her decision certainly bears no resemblance to constitutional doctrine. However, to say that the 5 Catholics are toeing the Roman party line makes no sense... The court does not support Rome's just-wage initiative; the court (and in particular its Catholic contingent) is decidely pro-death penalty (which the Church is decidedly against); and the court has upheld the rights of homosexuals to engage in consensual sex. Justice Kennedy (a Catholic) also upheld abortion rights in Planned Parenthood v Casey.

It seems, then, that the recent concern that the nine are allowing their religious convictions rule their decisionmaking is much ado about nothing. Is that to say that the justices are not influenced by their moral or religious convictions? I think it would be foolish to claim otherwise. However, regardless of what I or anyone else thinks of the current members of the court, it's safe to say that they are not agents of Rome, intent upon forcing Catholic doctrine on American jurisprudence. Whatever motivates them, it's far more complex than that.


Thus Spake Shmoo said...

Really the partial birth would be a 4-4-1 opinion if the pro-choice forces formed a different argument. But they won't because that would increase the rights of states to regulate.

Reread Thomas's opinion. Clearly he things that PB bans violate the commerce clause (CON LAW week 6-7 or so) ... There is a good law review article out there called "taking federalism seriously" that is a great read.

Sorry i haven't noticed your blog until now. Not having internet access the second and third year of cooley cut down on my blogging...
(i'll also post a brief comment on what you said about Thompson) - it will be brief because graduation is tomorrow ...

Enki said...

I did read Thomas' opinion, and much to my chagrin I tend to agree with him. I just didn't really talk about it in my post because it was less a reaction to what the court did, and more a reaction to what the pundits were saying about the decision.

Grats on graduation :)