A Cause for Alarm (or "The Case for Secularism")

The Pope made explicit today that Catholic politicians who vote in support of abortion rights, even while personally believing abortion to be immoral, are subject to excommunication and should be denied communion. This presents concerns for Catholic politicians, constitutional order, constituents, secularism, and, most startlingly, the Courts.

In the United States, legislators take an oath take uphold the Constitution of the United States. The Supreme Court, in carrying out its duty to "say what the law is," (Marbury v. Madison) has found that the Constitution protects a woman's right to an abortion. Might a legislator, then, while believing that abortion is immoral, still vote for a bill defining abortion rights as part of a duty to uphold the Constitution? The effect of the Pope's pronouncement, then, is to force Catholic legislators to choose between a duty to uphold the Constitution and their very faith. The "ideal" outcome for the Church, it would seem, is that Catholic legislators vote consistently with the precepts of the Catholic faith, at least with respect to abortion. But the era when the church could mandate to sovereigns how a country is to be run has come and gone; I, for one, have no desire to return to the Dark Ages.

Setting the constitutional issue aside for a moment, is it not the purpose of representatives in our republic to represent the views of their constituents? If Catholic politicians are to heed the demands of the Church, then three results are possible:

(1) In predominantly anti-abortion districts, there is no conflict;
(2) In pro-choice districts, Catholic representatives fail to represent the interests of their constituents; or
(3) In pro-choice districts, voters will choose to avoid election Catholic representatives.

The final two outcomes, which would be assured to occur in at least some instances, I hope we can all agree are intolerable. The only way to avoid this would be for Catholic politicians to disobey the law of the Church and risk excommunication. I find that to be equally unacceptable. Thus, in the political realm, the Pope's pronouncement creates an impasse with no entirely acceptable result possible. Thus, this makes for an excellent case study in the desirability of the separation of church and state.

But, as a more immediate concern, what of the courts? If a legislator voting in support of abortion rights on constitutional grounds may be excommunicated, then so, it seems, may a jurist doing precisely the same thing, including a Supreme Court justice. And what effect might this have on a justice's ruling? If presented with a case in which a particular ruling could result excommunication from the justice's church, it seems sheer fantasy that the justice's decision-making will be unaffected. This appears to be a classic conflict of interest. And this situation is far from unlikely - indeed, such a case has already occurred. It is interesting, though not necessarily telling, that the five justices voting to uphold the Partial Birth Abortion Ban Act were the five Roman Catholic justices. So what is the solution? Certainly, it is not to inquire into a potential justice's religion - that is unconstitutional and for good reason. Is it for justices to recuse themselves on cases involving abortion or other teachings? That would result in FIVE justices recusing themselves, justices whom, while I often disagree with them, play an important role on the court and can bring a legitimate judicial philosophy to the table. No, the solution is for justices to remain consistent with oaths to uphold the Constitution, but the only way for the public to be confident they are doing so is to remove significant barriers; that is, for the Church to withdraw from the secular affairs of the state.

[Edit: A bit of elaboration on the final sentence appears prudent. When I state the Church should withdraw from the secular affairs of the state, I mean that a religious institution should not attempt to control the making or interpreting of secular laws. This is not to say that a religious institution should refrain from engaging in discourse of the issues underlying the laws, nor am I saying lawmakers should not be informed, at least to some extent, by their moral and/or religious convictions in the process of lawmaking. Put simply, a religious institution should not endeavor to control the lawmaking process, though it is certainly welcome to contribute to discourse of the issues before the lawmaking process.]

Congress and the PBAA

Before going any further, it's important to understand what this act does and does not do. This act does not prohibit abortions based on the term or stage of the pregnancy during which they are performed (the Supreme Court decision seems to allow for that to happen, but we'll get there). What it does is to forbid a particular method of performing an abortion, known as an "intact dilation and evacuation" (intact D&E) procedure.

Congress elected to ban this particular procedure because it declared it "gruesome" and inhumane" and declared that it is "never medically necessary." But let us pause. Are we okay with Congress regulating the medical field based upon such circumstances? As a preliminary matter, let us dispense with the "inhumane" argument. If the abortion of a fetus is inhumane in one instance, it is inhumane in all instances. That is a larger question about abortion, not one specific to this procedure. Next, it is important to note that other D&E methods, not banned by the act, are no less gruesome. But is gruesomeness a sufficient ground for banning a medical procedure? Indeed, I think most of us would find any surgery quite "gruesome" - the slicing open of human skin, etc. The point is, in medicine there is a balancing test. Yes, the actions are gruesome, but we undertake them anyway because there are more compelling interests at stake.

And this brings us to the question of whether this procedure is ever "medically necessary." Note that Congress did not declare that the procedure was "never medically beneficial" or even that it was "never the best medical option." No, instead Congress declared that it was never medically necessary, which renders meaningless its exemption for the life of a woman. (Surely "necessary," if it is to have any meaning at all, must mean "necessary" to the life of the mother.) If a declaration of no medical necessity is all that is required, Congress would thus be empowered to regulate nearly anything in the medical field which it disfavors - end-of-life decisions, sex reassignment, and almost all types of abortion come readily to mind. This should give us all pause.

As a final point, Congress's greatest failure in passing this bill was to omit an exemption for the health of a woman. Other methods of abortion can pose risks of serious complications in some women. This may not be frequent; indeed there appear to be less than 5,000 of the banned procedures per year. If continued pregnancy poses a serious threat to the mother's health, should she not be able to have an abortion? Should the specific procedure used not be the safest possible one as determined by a certified physician?

Without going into it in great depth here, there is also a fascinating question, already widely debated in conservative circles, as to whether Congress, as opposed to state legislatures, may pass this type of legislation. Our federal government is one of enumerated powers (if broadly construed enumerated powers). But to construe its Commerce Clause powers this broadly may be to abandon any notion of "enumerated powers."

I will address the Supreme Court decision in a later post.

It Begins

I had held out hope, but I suppose we all knew this day would come. The Supreme Court, today, upheld a federal law banning a type of abortion. Yes, the Supreme Court upholds federal laws all the time. But this one was widely expected to be struck down because similar bills passed at the state level had previously been held to be unconstitutional. In general, if an act is unconstitutional as impinging upon the rights of the people, it doesn't much matter WHO passes the unconstitutional law, it remains unconstitutional. That is why commentators anticipated this federal law, which was a response to the court's ruling, to similarly be struck down. That was before, of course, the composition of the court changed; more specifically, that was before Justice O'Connor was replaced by Justice Alito. Both Alito and Roberts voted to sustain this law.

Today's decision raises two separate issues: (1) the political wisdom of the Act itself and (2) the wisdom of today's decision by the Supreme Court. These will be the subjects of a future post, once I have had time to parse the opinion itself.