Mirror of Justice

In what was undoubtedly the intellectual low point in the Supreme Court's oral arguments in Dobbs v. Jackson Women’s Health on Wednesday (here), Justice Sonia Sotomayor suggested that the State’s interest in the life of a human being developing in utero is inherently religious.  In questioning Mississippi’s Solicitor General Scott Stewart, she asked (pp. 29-30):

How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it … because it assumes that a fetus's life at -- when? You're not drawing -- you're -- when do you suggest we begin that life?

Put to one side Sotomayor’s half-witted suggestion that the question of when the life of a human being begins is only philosophical – that it is not a biological question which science has already settled.  Never mind that she is quite confident that science can answer the question of when a human life ends (pp. 20-21).  Never mind that the biologists’ amici brief in Dobbs (here, filed on behalf of neither petitioner nor respondent) makes clear that the overwhelming view of biologists around the world (including those who favor abortion) is the view that human life begins at fertilization and that this view “can only be supplanted by an alternative view if there are paradigmatic shifts to axiomatic concepts within biology” (p. 4).

To correct Sotomayor’s wrong, but oft repeated accusation, Justice Samuel Alito asked Stewart “[A]re there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?”  Stewart noted, sensibly enough, that “there's a wide array … of people of kind of all different views and -- and of no faith views who -- who would reasonably have that view, Your Honor” (p. 32).

Stewart’s observation that support for unborn human life can be found among the non-religious should be sufficient to answer the charge that this view in unavoidably religious.  But this charge against the defenders of unborn human life long precedes even Roe.  The proponents of abortion have long sought to discredit the pro-life movement as a sectarian effort to impose religious beliefs on a pluralistic society that includes many non-believers.

Like an old joke that falls flat whenever it is told, but that some people insist on telling and retelling, again and again, the reasons why it is little more than an ugly accusation – a mean-spirited and profoundly unfunny smear – must be spelled out.

Indeed, because Sotomayor’s claim is so confused, yet so frequently articulated, and is likely to be heard again and again with even greater frequency in the future (regardless of what happens in Dobbs), it is worthwhile to examine the charge more closely now.

In an article published in 2013 (here), I engaged in a line-by-line analysis of Justice John Paul Stevens’ abortion opinions in Thornburgh, Webster and Casey demonstrating the vacuous nature of the claim that laws seeking to afford some protection to the human child developing in utero are religious and so invariably violate the Establishment Clause of the First Amendment.  In that article, I noted that in Thornburgh (476 U.S. at 778) Stevens does not defend his claim that the State’s interest in the developing human “increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to surroundings increases day by day.”  He simply regards it as “obvious.”  But this is naked assertion.  To defend this claim would require Stevens to confront his own value preferences in favoring certain characteristics as significant, and recognizing that these preferences are no more or less “religious” than those he dismisses with that label.

If describing a claim as “religious” means that the claim depends upon value judgments that are ultimately unprovable from an empirical point of view, then the perspective that regards the unborn as something of incalculable worth is no more or less “religious” than the perspective that regards them as being of no value whatsoever—a trivial item of refuse easily discarded and soon forgotten. (p. 839)

John Noonan first made this point in his book, A Private Choice (1979), in responding to Larry Tribe’s 1973 Foreword in the Harvard Law Review.  There is no reason to exempt the selection of those criteria that would exclude fetuses and embryos from consideration as beings of moral worth and dismiss as theological and illicit those criteria that include fetuses and embryos as such beings. Rather, an argument must be made that certain criteria are inescapably “religious” and others properly “secular.”

Sotomayor’s questions indicate that she is oblivious to all this.  Her questions rely upon the same unstated and undefended assumptions.

It is possible that the question “Should X be considered Y?” is inherently religious because answering it necessarily relies upon religious premises or the exercise of religious judgment. 

For example, consider the following question: “Should the Gospel of Thomas be considered the inspired word of God on par with the Gospels of Matthew, Mark, Luke, and John?  Should Christians include it within the canon of New Testament texts?”   Whether the question is answered in the affirmative or the negative – whether concluding that the text is canonical or apocryphal – answering the question requires the exercise of theological judgment. 

The same could be said about the judgment involved in the classification of other things: “Should what looks to be a piece of bread be considered the Body and Blood of Christ?”  “Should a cow be thought of as a sacred animal that should not be slaughtered for food and should be allowed to wander free?”  “Should a kirpan dagger be treated as a sign of faith that must be worn at all times?”

But the question as to whether the enity in the womb is a "person" is not of this sort. In the debate over abortion, the claim that the entity developing in the womb is or is not a “person” is normative (i.e. a rights-bearer, a subject of concern, respect, and protection by the State) rather than descriptive (e.g. a being that is sentient, feels pain, is self-conscious, or has the capacity for reason), but it is not religious.

It is not “religious” to argue that a human being of a young age (e.g. an infant or toddler) should be regarded as a “person” and so enjoy the same respect and protection as a human being of a more advanced age (e.g. an adolescent or adult) who is regarded as a “person.”  And the judgment that an entity is a human being – an organism that is a member of the species homo sapiens – is not normative at all but biological (i.e. conceptual and empirical).

Of course, one could use religious reasoning and employ religious premises to argue that a given entity ought to be regarded as a “person.”  One could argue that a given being is a “person” infused with an immortal soul by God.   One could argue that the entity in the womb bears the image of the divine and is precious in the eyes of God.

But the proponents of legal protection for the unborn – both in terms of personhood and in some status short of that – do not do so on the basis of religious premises. 

If the claim implicit in Sotomayor’s questions is to be anything more than an ugly slur, then she must show that the view that favors protection for the unborn relies upon religious premises.  This is precisely what she and others have failed to do.  They are instead content to repeat a bad joke – to tell it again and again knowing that it appeals to the prejudices of its audience.  But the real laughingstock in law is those who abandon reason, rely on accusation, and trade in religious prejudice.