Abortion Ruling Sparks a Backlash for Catholic Justices

Observers raise questions about justices' faith after abortion ruling.

February 9, 2009, 4:13 PM

April 24, 2007 — -- The Supreme Court's landmark abortion ruling last week has triggered an anti-Catholic backlash, with critics pointing to the Catholic faith of the five justices in the majority and suggesting their religious views influenced their decision in the case.

The allegations have outraged Catholic organizations and conservative commentators, who have called the criticism bigoted and intolerant.

In the days after the court's 5-4 decision upholding the federal Partial Birth Abortion Ban Act, a number of liberal commentators homed in on religious views of the justices in the majority who had voted to uphold the act.

Talk show panelist Rosie O'Donnell was among the first to make the point.

"You know what concerns me?" O'Donnell asked last week on ABC's "The View." "How many Supreme Court judges are Catholic?"

"Five," said host Barbara Walters.

"Five," O'Donnell said. "How about separation of church and state in America?"

Walters counseled against drawing conclusions, saying, "We cannot assume that they did it because they're Catholic."

But O'Donnell had more to say.

"If men could get pregnant," O'Donnell said, "abortion would be a sacrament."

The comments sparked immediate outrage. Nationally syndicated radio talk show host Laura Ingraham has led the battle against O'Donnell, urging listeners to e-mail ABC to protest what she calls O'Donnell's "anti-Catholic bigotry."

"'The View's' Rosie O'Donnell continues on her tear down the path of the Rich and Unhinged, this time with an anti-Catholic rant against the Supreme Court," Ingraham wrote on her Web site. "Could she ever get away with denigrating the Muslim faith this way?"

At issue in the court's decision last week was the constitutionality of the Partial-Birth Abortion Ban Act, which Congress passed in 2003 with bipartisan support. In all, 17 Senate Democrats voted for it, as did 47 Senate Republicans. Congress passed the law after the Supreme Court in 2000 struck down similar laws in about 30 states.

Sandra Day O'Connor, who retired in 2005, cast the deciding vote with liberals in the 2000 case. Replacing her with Justice Samuel Alito made the difference in last week's decision, which said the legislature -- expressing the will of the people -- could seek to protect and promote the life of the unborn.

Alito became the fifth Catholic on the court when he took O'Connor's place in early 2006. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas also are Catholic, as is Justice Anthony Kennedy, who wrote the decision.

Kennedy emphasized in the decision that the justices were interpreting a federal law that would not prevent any abortions. Congress concluded the partial-birth procedure was never medically necessary, because other procedures were available to doctors performing abortions.

Reaction to the decision immediately focused on whether the newly constituted court was poised to overturn Roe vs. Wade, the landmark 1973 decision that gave women the right to choose an abortion to terminate a pregnancy.

Kennedy, however, suggested the court was not in a position to overturn Roe. He refused to overturn Roe the last time the court considered it in 1992, and his decision last week indicated he had not changed his mind on that broader issue.

O'Donnell wasn't the only one to suggest religion had influenced the justices' approach. The Philadelphia Inquirer published a cartoon Friday entitled "Church and State" that featured the five Catholic members of the court wearing bishop miters.

Joseph Cella, president of the Catholic-based organization Fidelis, called the cartoon "venomous, terribly misleading and blatantly anti-Catholic."

"The Supreme Court did not 'follow marching orders' from the Vatican or the bishops in the United States," Cella said. "Instead, the court deferred to deliberative judgment of the people's elected representatives protected by the Constitution."

But academics, including the former dean of the University of Chicago Law School, also have said the Catholic faith of the five justices influenced their thinking in the case Gonzales vs. Carhart.

"All five justices in the majority in Gonzales are Catholic," wrote Geoffrey Stone, now a professor at the law school, in a faculty blog. "The four justices who either are Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling to ignore."

Stone said it was "sad" that the justices in the majority had "failed to respect the fundamental difference between religious belief and morality."

University of Chicago Law School professor Richard Garnett wrote a critical response, saying Stone "misses the mark" in suggesting the justices imposed their religious views on people who do not share their beliefs. Garnett earlier had strongly criticized the Inquirer cartoon.

Garnett said what troubled him was the claim that the justices voted to uphold the ban because they are Catholics "and not because they think, as intelligent and engaged lawyers, that the Constitution does not disable legislatures entirely from regulating what most people (not just Catholics, fideists, and sexists) regard as a particularly gruesome abortion procedure."