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The Faith-Based Supreme Court

Call it the Catholic connection. As University of Chicago law professor Geoffrey R. Stone points out in a post at the American Constitution Society's ACSBlog, religious affiliation may be the key to explaining last week's Supreme Court decision in Gonzales v. Carhart, upholding a federal law prohibiting so-called partial birth abortions, otherwise known as "intact dilation and evacuation" or "intact D & E."

In its decision upholding the law, the majority noted that Congress had made several findings to support the legislation. The majority accepted those findings, even though, as Hazard writes, every other federal court that reviewed them found them to be "unreasonable, unbalanced, polemical, and unsupported by the facts." If so, how then to explain the decision? Hazard offers what he calls a "painfully awkward observation":

"All five justices in the majority in Gonzales are Catholic. The four justices who are either 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. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is 'immoral' and may be prohibited even without a clear statutory exception to protect the health of the woman."

For Hazard, who served as a law clerk to Justice William Brennan in 1973, the year he joined the majority opinion in Roe v. Wade, last week's decision stands in stark contrast to Brennan's struggle to separate his personal religious views from his responsibilities as a justice. As did Justice Ginsburg in her dissent in Gonzales, Stone quotes from the Court's 1992 decision Planned Parenthood of Southeastern Pa. v. Casey, where it said:

"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

To which Stone adds: "It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example."

Posted by Robert J. Ambrogi on April 23, 2007 at 06:08 PM | Permalink | Comments (3)

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