One hundred fifty years ago, a woman named Myra Bradwell brought a Supreme Court case claiming a constitutional right to be admitted to the Illinois bar. She had passed the state’s bar exam with high honors, but the Illinois Supreme Court refused her application, saying that when the State Legislature gave the court the power to grant law licenses, “it was with not the slightest expectation that this privilege would be extended to women.”
The U.S. Supreme Court upheld the state court, with Justice Joseph Bradley writing in a concurring opinion that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”
“This,” Justice Bradley explained, “is the law of the Creator.”
The case of Bradwell v. Illinois is regarded today as a low point in Supreme Court history, at least by those of us who reject the notion of God as the ultimate personnel administrator. But it turns out that God has a role in the country’s civic life after all: that of supreme legislator.
Republican politicians used to offer secular rationales for their anti-abortion zealotry: They claimed that abortion hurt women or that abortion procedures demeaned the medical profession. In the early months of the Covid-19 pandemic, some opportunistic states imposed temporary bans on abortion, making the demonstrably false assertion that abortion patients would take up scarce hospital beds.
But now, sensing the wind at their backs and the Supreme Court on their side, Republican officeholders are no longer coy about their religion-driven mission to stop abortion. In May, when Gov. Greg Abbott of Texas signed S.B. 8, the vigilante bill that bans abortion after six weeks of pregnancy, he claimed that “our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion. In Texas we work to save those lives.” (There are actually fewer than one million abortions a year in the United States, but let’s not get picky with the facts.)
Two years earlier, signing a bill that criminalized nearly all abortions in Alabama, Gov. Kay Ivey called the measure a “testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.”
And this year, a Republican state senator in Arkansas, Jason Rapert, declared in explaining his sponsorship of a bill to ban nearly all abortions that “there’s six things God hates, and one of those is people who shed innocent blood,” as if it were self-evident that he was referring to abortion rather than to the “stand your ground” bill that he co-sponsored.
I could go on with this list, but these examples are sufficient to raise the question for those of us not on board with the theocratizing of America: Who let God into the legislative chamber?
The answer is that we did. Our silence has turned us into enablers of those who are now foisting their religious beliefs on a country founded on opposition to an established church.
The Supreme Court has come in for plenty of well-deserved criticism for last week’s midnight maneuver allowing Texas to enforce its new abortion law. The fact that the four of the court’s six Roman Catholic justices and a fifth who was raised Catholic but is now Episcopalian, all conservative, allowed a blatantly unconstitutional law to remain in place pending appeal has barely been noted publicly. (Chief Justice John Roberts and Justice Sonia Sotomayor, who are also Catholic, joined with two other justices in dissent.)
The five who voted for Texas (and the chief justice) were placed on the court by Republican presidents who ran on a party platform that called for the appointment of judges who would overturn Roe v. Wade. Those presidents may well have calculated that the religious background of their nominees would incline them to oppose abortion, sparing those presidents from asking a direct question that their nominees would be bound not to answer.
When Amy Coney Barrett was a law professor at Notre Dame, the university’s Faculty for Life, of which she was a member, unanimously denounced the university’s decision to honor then-Vice President Joe Biden, a Catholic, with an award recognizing “outstanding service to church and society.” The faculty group’s specific objection was to his support for the right to abortion. “Saying that Mr. Biden rejects church teaching could make it sound like he is merely disobeying the rules of his religious group,” the Faculty for Life’s resolution stated. “But the church’s teaching about the sanctity of life is true.”
Justice Barrett’s personal religious views are, of course, her personal business, but her support of this aggressive public intervention into a matter of public concern was fair game for questions, or should have been. It remained, however, far under the radar during the unseemly sprint to her Supreme Court confirmation.
Religion is American society’s last taboo. We can talk about sexual identity, gender nonconformity, all manner of topics once considered too intimate for open discussion. But we have yet to find deft and effective ways to question the role of religion in a public official’s political or judicial agenda without opening ourselves to accusations of being anti-religious.
The Mississippi abortion case the Supreme Court will hear this fall (the date has not been set) has attracted nearly 80 briefs in support of the state’s defense of its ban on abortion after 15 weeks of pregnancy and its request that the justices overturn Roe v. Wade. Well over half of the briefs are from organizations and individuals with overtly religious identities. Many of the remainder have more subtle affiliations with the religious right.
That shouldn’t be surprising. What reason other than religious doctrine is there, really, for turning back the clock on a decision that nearly a half-century ago freed women from the choice between the terror of the back alley and the tyranny of enforced motherhood? About one-third of Americans, according to a recent Gallup poll, want the court to overturn Roe. And yet, as we saw last week, the right to abortion is already functionally dead in Texas, and its fate may soon be left to the whims of Republican politicians everywhere else. It’s incumbent on the rest of us to call out those who invoke God as their legislative drafting partner.
The major step that Mexico’s Supreme Court took this week toward decriminalizing abortion in that country, which is predominantly Catholic, raises the head-snapping prospect of Texas women traveling across the border for legal abortions, as many did for illegal ones in the years before Roe v. Wade. The bishops denounced the court’s unanimous ruling, of course, but antipathy toward the church’s power over civic affairs is part of Mexico’s DNA.
In this country, the clash between church and state over abortion is an old story. Thirty-seven years ago, one of the country’s most prominent Catholic public officials, Gov. Mario Cuomo of New York, was caught up in a debate with the church over his support for using public money to pay for abortions for poor women. The Supreme Court had recently upheld the Hyde Amendment, which cut off federal Medicaid funding for that purpose. But states remained free to spend their own money, and New York had chosen to do so. On Sept. 13, 1984, Mr. Cuomo addressed the controversy, defending the state’s policy in a speech at Notre Dame that he titled “Religious Belief and Public Morality: A Catholic Governor’s Perspective.”
While he accepted the church’s teaching on abortion as a matter of personal belief, he said, “there is no church teaching that mandates the best political course for making our belief everyone’s rule.”
He went on:
The hard truth is that abortion isn’t a failure of government. No agency or department of government forces women to have abortions, but abortion goes on. Catholics, the statistics show, support the right to abortion in equal proportion to the rest of the population. Despite the teaching in our homes and schools and pulpits, despite the sermons and pleadings of parents and priests and prelates, despite all the effort at defining our opposition to the sin of abortion, collectively we Catholics apparently believe — and perhaps act — little differently from those who don’t share our commitment. Are we asking government to make criminal what we believe to be sinful because we ourselves can’t stop committing the sin?
(What was true in 1984 remains true; Catholic women obtain nearly one-quarter of U.S. abortions, roughly proportional to their representation in the population.)
“Persuading, not coercing” had to be the goal “in our unique pluralistic democracy,” the governor said. “And we can do it even as politicians.”
It was a remarkable performance, reminiscent of John F. Kennedy’s speech to the Greater Houston Ministerial Association during the 1960 presidential campaign, in which he sought to reassure skeptical Protestant clergy members about his candidacy. “I am not the Catholic candidate for president,” he told the ministers. “I am the Democratic Party’s candidate for president who happens also to be a Catholic. I do not speak for my church on public matters — and the church does not speak for me.”
A generation separated the Kennedy and Cuomo speeches, and a generation or more has passed since Mr. Cuomo’s declaration of independence at the University of Notre Dame. As the country lurches toward theocracy, we need voices like those more than ever.
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