MOJ friend and alum, John Breen, wrote the following:

"Thanks to Rick Garnett for posting Geoff Stone’s post regarding the Supreme Court’s decision in Gonzales v. Carhart.  Yes, Professor Stone published a “post” on the University of Chicago Law School’s faculty blog.  However, it would be incorrect to call what Stone has written an “argument” though it may bear some faint similarity to one.

"The structure of Professor Stone’s claim is as follows:  The Gonzales majority consisted of five Catholic justices; the moral judgment that partial-birth abortion is wrong cannot be supported by secular beliefs; therefore the five Catholic justices relied upon their religious convictions in deciding the case.  Of these three propositions, Professor Stone provides support only for the first, a modest accomplishment since the justices’ religious affiliations are a matter of public record.  He never provides support for his claim that the five justices in the majority in fact relied upon their religious beliefs.  Certainly they do not do so in any overt manner, invoking the Bible or the Catechism of the Catholic Church.  Thus, Stone simply assumes this to be the case.  In place of argument, Professor Stone offers us innuendo.  Likewise, Stone does nothing to show that opposition to abortion cannot be grounded in thoroughly secular reasoning.  This, we are to gather, is a self-evident truth.

"What is worse, Stone is extremely selective with respect to the inferences he urges his readers to make concerning the reasoning of the different justices.  Let’s be blunt:  It is a matter of historical record that the American Jewish Congress has long been a supporter of abortion rights.  Indeed, it assumed this position well before Roe was decided.  Why does Professor Stone not encourage his readers to infer that Justices Ginsburg and Breyer based their decision on religious premises?  Why should we not surmise from their religious affiliation, and nothing more, that they have likewise determined a legal question on the basis if their personal religious faith?

"Reading Professor Stone’s post reminded me of a passage from John Noonan’s under-appreciated book, A Private Choice (1979).  In it Noonan notes the habit of many in the media to identify “a person publicly opposed to abortion by his religion, if he happened to be Catholic” (p. 54) but to refrain from making this identification when the subject was some other moral issue such as opposition to the Vietnam War or care for the elderly.  Sadly, says Noonan, “just as a racist press once identified every thief if possible as black, so the press identified every public opponent [of abortion] if possible as Catholic” (p. 55).  I do not wish to accuse Professor Stone of stoking the still burning embers of anti-Catholicism in this country, but I am at pains to understand how Professor Stone’s commentary differs markedly from these journalistic practices of the past.  In making what Stone terms “a painfully awkward observation” concerning the Catholic identity of the five justice majority, we are left to conclude . . . what?  Again, if it is prove the religious basis of the majority’s decision, Stone still has much work to do.

"Rick Garnett is of course correct in his basic response to Stone, namely, that the moral value attached to all human life –whether in the early stages of development or in the twilight of existence— is not an inherently religious judgment.  Put another way, a judgment that attaches little value to a particular instantiation of human life shares precisely the same “religious” character as a judgment which attaches enormous value to the same entity.  Thus, Professor Stone seems not to fully comprehend the implications of his statement that the moral status of the fetus is a “rationally unresolvable question.”  Neutrality with respect to the value accorded fetal life is not an option.  Indeed, the Court in its abortion jurisprudence takes a definitive position with respect to this issue, a position which, if Professor Stone is to be believed, is not rational.  Indeed, if the answer to the question is not resolvable on rational, secular grounds, then the Court’s answer must be “religious” in its own way.

"Professor Stone ends his post by quoting the Court’s admonition in Casey that the role of the Court is “to define the liberty of all, not to mandate our own moral code” and asserting that the five Catholic justices in Gonzales chose “not to follow this example.”  Here his own normative commitment to the result in Roe and Casey and Stenberg blinds him to the irony of this admonition.  He cannot see that the basis of the decision in Roe and each of its progeny was the moral principles of the individual justices who decided these cases, and not the Constitution itself.  Proponents of the Court’s abortion jurisprudence have now had more than generation to put forth a convincing argument that the result in Roe was compelled by the text, structure and history of the Constitution, and they have failed – a point that the three justices in the plurality opinion in Casey as much admit.  Thus, Stone cannot argue that Ginsburg and her fellow dissenters merely relied upon what Stone terms “settled precedent” since that precedent in turn is based on the personal moral beliefs of the justices who created it.

"Finally we might ask this question: Why are supporters of abortion rights like Professor Stone so infatuated with this point of view, this desire to label the pro-life position as religious and irrational?  What explains their inability to see the pro-life position otherwise than through the lens of religious dogmatism, as anything other than an effort to oppress women and impose the tenets of a particular religious faith on an unwilling public?

"Let me simply suggest that what motivates this response is fear.  The proponents of this position are fearful that an intellectually honest debate about abortion —a debate confined to secular premises— would not be to their advantage.  That is, Professor Stone and many who share his point of view seek to avoid having such an argument by denying the rationality of those whom they oppose.  It is of course much easier to win an argument when the other side is silenced, when the legitimacy of one position is denied ab initio.  Sadly, when one side refuses to engage in a respectful and intellectually honest discussion of the topic, all that remains is a strategy of caricature and dismissal.   

"That this strategy is a common feature of what passes for “debate” on abortion in this country is surely a sad commentary on the state of American legal and political discourse.  What is especially disconcerting, however, is to see a chaired professor at the University of  Chicago – a venerable institution known for its unapologetic devotion to intellectualism – engaged in what can only be described as a public display of anti-intellectualism.  What is worse is to recognize that Professor Stone believes that he has actually made an argument."