Giving Catholic Cover to Roe v. Wade

The late John T. Noonan was, in many respects, a man of the Catholic left. He provided intellectual support for the argument that the Church had changed its teaching on usury, at least in part so that the Church could accommodate a world that was becoming capitalist. Noonan argued that this meant that the Church could also change its teaching on contraception. Noonan also defended Notre Dame’s decision to give an honorary degree to Barack Obama, whose administration was the most pro-abortion the country had yet seen.

But Noonan never compromised his belief that Roe v. Wade was a perversion of the United States Constitution, an illegitimate decision with deadly consequences for millions of unborn Americans. Noonan’s A Private Choice: Abortion in America in the Seventies remains, to my mind, the single best critique of Roe and its impact on American life. Noonan summarized that impact with memorable concision: “No plague, no war has so devastated the land.” The magnitude of the carnage has only grown Noonan wrote his book in 1979. Indeed, even if one implausibly assumes that 90% of the abortions performed in America since 1973 would still have occurred without the Supreme Court’s approbation, the remaining number still dwarfs the number of Americans who died in all the nation’s wars and pandemics put together.

There is little doubt that Roe v. Wade is at the heart of the Democratic opposition to President Trump’s nomination of Amy Coney Barrett to the Supreme Court. Indeed, Democratic Vice Presidential candidate Kamala Harris, chosen by Biden to oversee Democratic opposition to Barrett, offered Barrett’s presumed opposition to Roe as one of the two principal reasons to oppose Barrett’s nomination.

This is consistent with how Senate Democrats have treated Republican nominees to the federal bench, going back at least to Robert Bork. Indeed, Senator Diane Feinstein famously told Barrett, when she was nominated to the Court of Appeals for the Seventh Circuit, that “the dogma lives loudly within you.” Not to be outdone, Senator Richard Durbin asked Barrett at the same hearing if she was an “orthodox Catholic,” and Harris herself expressed concern that another judicial candidate was a member of the Knights of Columbus.

Democrats can live with Catholics of the Joe Biden variety. Biden, after all, has followed his party’s long march toward abortion absolutism, moving from being an opponent of abortion to being an opponent of federal funding for abortion to being a candidate unwilling to support any restriction at all on a practice that the Catholic Church condemns unequivocally. But Democrats worry about Catholics like Amy Coney Barrett. After all, one look at Barrett’s five natural children, one of whom has Down Syndrome, and her two adopted children leaves no doubt Barrett takes the Church’s teaching on abortion as seriously as did the Associate Justice for whom she clerked, father of nine Antonin Scalia.

Democratic opposition to Barrett is understandable, flowing as it does from the party’s belief that abortion is at the very least a fundamental right that may not be restricted in any substantive way. But what are we to make of Catholics like the ubiquitous James Martin, S. J. and Villanova theologian Massimo Faggioli, both of whom have argued that it is legitimate for Democrats to raise questions about Barrett’s faith and its impact on her views concerning abortion?

It is hard for me to see this as anything other than an attempt to provide Catholic cover to Roe v. Wade. If Martin and Faggioli and their allies had any real interest in providing legal protection to the unborn, they would not use their talents to justify opposition to Barrett’s nomination, when that nomination offers a real chance to replace a justice unwilling to limit even partial birth abortion with a faithful Catholic judge who has impressed even ideological foes with the sincerity of her faith and the decency of her life.

Martin and Faggioli cannot evade the fact that if Barrett’s nomination is rejected and Joe Biden gets to fill the vacancy created by Ruth Bader Ginsburg’s death, he will pick a new Associate Justice to the Supreme Court as committed to abortion absolutism as every Democratic justice has been since Byron White, put on the Court six decades ago by John F. Kennedy. If Martin and Faggioli actually wanted to see the unborn given protection under American law, they might point out that Democratic Senators can vote for the eminently qualified Barrett before November 3 and still vote for Joe Biden on November 3. Only three Republican Senators, after all, voted against the confirmation of Ruth Bader Ginsburg.

But neither Martin nor Faggioli are suggesting that it might make sense for liberal Catholics to support Amy Coney Barrett’s nomination because of her position on abortion before voting for Joe Biden in spite of his position on abortion. Instead, it seems the overwhelming priority for both men at the moment is to give Catholic cover to the Democrats opposing Barrett while Barrett herself is tossed to the wolves.

Which is a shame, since there is little that would benefit American politics more than the overturning of Roe v. Wade. That decision was more than a death sentence for millions and an egregious exercise in “raw judicial power,” as Byron White noted in his powerful dissent in 1973. It has also distorted American politics. Without Roe, Supreme Court nomination battles would be far less vicious, faithful Catholics attracted to Democratic economic and social policies would no longer feel compelled to vote Republican, and federalism would be allowed to do what it was designed to do and help Americans tolerate each other better. The overturning of Roe would not produce the “back alley abortions” Teddy Kennedy falsely charged Robert Bork of favoring but a political equilibrium in which states would enact abortion laws that reflected the views of their citizens. With Roe gone, even Americans upset by their state’s laws on abortion would at least have the satisfaction of being able to vote for candidates able to pass and repeal laws dealing directly with abortion.

Of course, those who believe that abortion is a fundamental right might object, but no Catholic may hold such a belief, even if he is a theology professor or celebrity Jesuit. As John Paul II explained in Evangelium Vitae, “Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.” But we will never reach this happier destination where Americans are free to grant legal protection to the unborn so long as the abortion absolutists who control the Democratic Party know they can rely on the likes of Martin and Faggioli no matter what.

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