Linda Greenhouse’s Thanksgiving Day op-ed in the New York Times, “Sex After 50 at the Supreme Court” is a telling piece: telling about the thinking as well as the politics that inform it.
Greenhouse’s essential argument is this: Fifty years after the Supreme Court endorsed legal contraception in Griswold v. Connecticut, “sex, women, and religion” remain at the center of fundamental civilizational clashes the nation’s highest court is once again being asked to resolve. Two cases accepted for oral argument this term—Zubik v. Burwell and Whole Women’s Health v. Cole—embody, writes the Times’s long-time Court reporter, “a struggle over modernity, a battle for the secular state in which women can make their choices and design what Justice Ginsburg calls their life course, free of obstacles erected by those who would impose their religious views on others . . .”
In Zubik the Court consolidated several cases related to its 2014 Hobby Lobby decision: Can the Obama Administration compel employers to provide “contraceptives” (really, abortifacients) to their employees under Obamacare? Cole is an appeal of a lower court ruling upholding a Texas law that requires abortion clinics to maintain the same standards as other healthcare facilities. The “conjunction of the two issues,” Greenhouse believes, “deserves more notice than it has received.” Her Times op-ed is clearly a call to arms, the first salvo in what will undoubtedly be an incessant reiteration over the next year of the “war against women” meme—a war that can only be avoided by ensconcing Hillary Clinton in the White House.
Let’s be clear about the upcoming spin: Abortion is not about theology but it will be caricatured as a question of “belief.” The scientific truth about when life begins will be recast as opinion. Any facts concerning fetal development will be diligently censored (especially if the 114th Congress gets around to taking up the “Pain Capable Unborn Child Protection Act” again).
Greenhouse cites with approval John Paul Stevens’ opinion in Webster v. Reproductive Health Services (492 U.S. 490), a 1986 abortion case challenging state restrictions on abortion. In the preamble to its regulatory statute, the Missouri Legislature found that “the life of each human being begins at conception.” The Court majority avoided deciding on whether the Legislature could make such a finding, but Justice Stevens, in a separate opinion, stated that the finding had “a theological basis,” that it lacked “any secular purpose,” and was, therefore, unconstitutional.
Stevens’ jurisprudence frequently embodied the most hostile possible reading of religion under the First Amendment (see Robert F. Nagel’s “Justice Stevens’ Religion Problem,” a rigidity for which Greenhouse apparently longs. “Abortion opposition,” she writes,
has been Republican Party dogma for so long that it’s easy to regard the position as simply a natural part of our domestic politics. But its origins are religious to the core, and so is the source of its current energy, even if judges are too diffident to base their decisions on that fact, or even to comment on it. The last justice to do so was the invaluable John Paul Stevens, whose consistent voice in favor of a robust understanding of the First Amendment’s Establishment Clause I miss more with each passing year.
Expect Greenhouse et al. to keep insisting that legal contraception itself is imperiled by religious zealots “who find in recent Supreme Court decisions encouragement that this time they might get their way.” The simultaneous presence of Zubik and Cole on the Supreme Court’s docket is an open invitation to trot out warmed-over images of Sandra Fluke being deprived of birth-control pills. The fact that the Obama Administration is wielding the mighty cudgel of the State against an order of nuns will be conveniently overlooked. In the midst of a campaign in which “income inequality” is also likely to be a prominent meme, the strawman of the big-bad-rich-employer-taking-away-poor-women’s-contraceptives lends itself easily to the class conflict shtick. Never mind that the “big-bad-employer” is the Little Sisters of the Poor, a 176-year-old religious order dedicated to taking care of impoverished elderly patients.
Pro-lifers obviously need to talk and talk back, relentlessly and consistently. They must, of course, be prepared to reckon with the kind of mainstream media blackout that has censored videos about Planned Parenthood’s trafficking in unborn baby body parts and even the butchery of Kermit Gosnell. But they also need to avoid getting tripped up in media squirrel holes. Cole is about holding abortion clinics to the same standards any other medical facility must meet: Why, they should ask their opponents, should abortion clinics be an exception? Why is it unreasonable to expect an abortionist to have hospital admitting privileges somewhere within thirty miles of his clinic?
Pro-lifers need to realize that Americans are generally pretty ignorant about the abortion debate. Most do not know that a handful of carpetbagger abortionists travel the country to ply their trade and that this is why having a local hospital connection is really so “onerous” for them. And they also don’t know much about the assault on conscience rights that is taking place in our country today, from nurses being coerced into assisting at abortions (or risk losing their jobs and licenses) to florists and photographers being prosecuted for not providing services for gay weddings. Zubik is about conscience rights. Better to talk about that then get bogged down in a debate over fertilization versus implantation. While that discussion needs to occur, it does not lend itself to “sound bite” discourse.
I do suggest, however, that in a larger and more consistent way we engage Greenhouse on her own terms: This is a “struggle over modernity.” Does modernity mean ignoring the first question on which all civil rights depend: When does one become a member of the community of rights bearers? Will that question, which concerns the aged and the sick and the disabled as well as the unborn, be excluded from public discussion and resolution, relegated to a private realm of “theology?” Will religion and religiously-inspired norms—including “thou shalt not kill”—be purged from all public forums? Will “modernity” ultimately be determined by five (or even seven or nine) unelected justices who may or may not appreciate how the age-old sanctity-of-human-life ethic still undergirds our culture—and their office?
It’s interesting that Linda Greenhouse’s brief for a “secular state . . . free of obstacles erected by those who would impose their religious views on others” appeared on Thanksgiving, a day that clearly testifies to America’s origins being anything but robustly secular.
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—John M. Grondelski (Ph.D., Fordham) is former Associate Dean of the School of Theology, Seton Hall University, South Orange, New Jersey (USA).