Sunday, June 26, 2022
Sunday Reflection: Religion and Dobbs
The Dobbs case, which reversed the rule under Roe and Casey this week, begins with this false trichotomy:
"Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed."
It is false because it starts by defining groups according to when they think life begins, then pivots away to using other things to define the three groups, rather than using a consistent metric. The problem is that it defines different people by not only different views by views about different things. It's like saying "there are three groups of people when it comes to sports: people who like the New York Rangers, people who played hockey as a kid, and people who can only name some of the New York Rangers."
That subtle trick allows them to define the second and third group (who favor abortion at least in some circumstances) as fundamentally immoral: after all, unless we define them as NOT believing that life begins at conception, they believe in murder justified by other goals (such as full equality for women). That's pernicious.
In truth, if they are going to start by defining the first group as those who believe life begins at conception, they should have defined the three groups using the same metric, this way:
1) People who think life begins at conception
2) People who don't think life begins at conception
3) People who don't have a firm belief as to when life begins
That changes things, doesn't it? I'm in the third group. And, in my mind, when an important thesis is unknown, liberty should prevail.
By defining things the way they do, though, the Court pivots away from a central issue with abortion: that for many-- probably most-- of the people in the first group, their believe that life begins at conception is rooted in their religious beliefs, the same religious beliefs as the the six Supreme Court justices who were raised as Catholics and voted against the Mississippi clinic at the heart of the Dobbs case. (Justice Roberts voted to uphold the Mississippi law even though he did not vote to overturn Roe and Casey; it is also important to note that dissenter Sonia Sotomayor was raised as a Catholic).
Of course, the majority opinion was phrased in terms of legal theory, not religion. But faith seems to have correlated pretty consistently to the legal theories of those six jurists, doesn't it? It could just be a coincidence.
Right.
And that's the thing. If faith really is what believers like me say it is--a force that shapes one's worldview, opinions, and sense of what is important-- then of course their legal opinions follow the trajectory of their faith. Mine do; it is no secret that my belief that clemency is important and should play a greater role in criminal law is motivated by my faith.
Stare decisis? They relied on it to reject an equal protection basis for upholding Roe and Casey even as they set it aside to overturn those opinions. Nuances as to substantive due process? They don't parse that out very well-- and the Thomas and Kavanaugh concurrences seem to deny there is any such thing for rights not listed in the Constitution.
Faith is powerful. To those raised in faith, it does shape the deepest beliefs, and other things follow. If not, it's not faith.
In the end, there is a lot of "let's pretend" with all of this, with the central fiction being that any alignment between faith and legal theory is purely coincidental.
Comments:
Thanks for this analysis, Mark. I haven't been able to bring myself to read the decision yet.
At a basic level, I abhor the conservative majority's hypocrisy in deciding that the original Constitution allows all Americans (not just those in a "well-regulated Militia") to own guns and carry them widely--a right that's dubious at best, based on how the 2nd Amendment is written--yet they're fine denying rights that have already been granted. I'm not a legal scholar at all,, but still it seems pretty obvious their originalism is applied very selectively.
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A decision, rooted entirely in religious belief, in search of a legal basis?
I shall--only with your permission--send links to your commentary. Your description of a "false trichotomy" is incisive and, accordingly, of great value in framing the argument.
I shall--only with your permission--send links to your commentary. Your description of a "false trichotomy" is incisive and, accordingly, of great value in framing the argument.
Thanks for this analysis, Mark. I haven't been able to bring myself to read the decision yet.
At a basic level, I abhor the conservative majority's hypocrisy in deciding that the original Constitution allows all Americans (not just those in a "well-regulated Militia") to own guns and carry them widely--a right that's dubious at best, based on how the 2nd Amendment is written--yet they're fine denying rights that have already been granted. I'm not a legal scholar at all,, but still it seems pretty obvious their originalism is applied very selectively.
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: 1:45 PM
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