"Re "A Sharp Turn for the Supreme Court on Abortion" :
I am a rheumatologist caring for a patient whose lupus nephritis is flaring. Her creatinine is rising as her platelet count falls, and she has failed to improve with pulse methylprednisolone and intravenous cyclophosphamide. I am contemplating using rituximab. I would like to refer this case to the United States Supreme Court for its guidance.
-Letter to Editor, New York Times, printed, April 24, 2007
The following is the first installment of a three part sub-series regarding the influence of non-mainstream, ultra-traditional Catholics now sitting on the US Supreme Court.
If we ever needed proof of the existence of an ultra-orthodox Catholic mindset on the U.S. Supreme Court, Gonzales v. Carhart demonstrated it in spades.
Please observe that I use the term "ultra-orthodox Catholic" as opposed to "Catholic" presence on the current Supreme Court. And contrary to highly charged partisan spin, by U.S. Senator Orrin Hatch (R-Utah), this has nothing to do with anti-Catholicism, but much to do with a select band of strict traditionalists who wish to impose their factious beliefs on both the majority of disagreeing Catholics as well as the aggregate majority of Americans of other beliefs.
Beyond the creeping erosion of Roe, there is the disturbing reliance upon traditionalist Catholic teaching on grey area issues, such as a pregnancy endangering the life of the mother. As Justice Ginsburg noted in here dissent:
Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.
Where does this leave a Jewish woman whose life is endangered by a pregnancy? By the Supreme Court's reasoning in Carhart, the Jewish teaching of saving the mother's life in such circumstances is not respected. Vatican teaching is completely different. Instead it prohibits any abortion procedure that would be required not only if the choice is between the life of the mother and the fetus, but also where if no procedure is performed, a stillborn would result. That is an extreme teaching that many mainstream Catholics reject outright.
Different Interpretations of Catholicism
But the same cannot be said of my more ultra-traditionalist co-religionists; a group of Catholics that Justices Roberts Scalia and Thomas continually describe themselves. And I believe that this was evident by their collective reasoning in deciding Carhart. A very anti-feminist, almost Aristotelian-Thomistic tone is omnipresent in the decision -- something easily recognizable in the thought process of my more reactionary-minded Catholic brethren. Although formulated in a more sectarian description, this "defective and misbegotten" female outlook was also picked up by Dorothy Samuels, who writing in the April 27, 2007 edition of the New York Times keenly observed:
The biggest surprise - a shocker, really - was the majority's use of the opinion to enshrine into Supreme Court doctrine the rhetoric and tactical positioning of the anti-abortion movement. Most notably, it served up the patronizing fiction that the court was acting for women's own good to protect their mental and moral health.
Like some other provocative aspects of the majority opinion, the insulting rationale that criminalizing a medical procedure would protect women appears nowhere in Justice Kennedy's dissent in the 2000 case.
The Five Justices
And that brings us to a review of how the five Catholic Supreme Court Justices interpret their faith and more importantly, its place in a pluralistic society. Unlike more mainstrean and liberal Catholics, traditionalists generally wish to revert to a pre-Vatican II practice of the faith.
One key aspect of this outlook is the revocation of Dignitatis Humanae: that everyone has a right to religious liberty, a right that is grounded in the essential dignity of each individual. While the Church still viewed itself as the vessel of "the truth," it wisely concluded that individuals must be free to seek the truth without coercion. In its place, they desire reinstitution of the teaching that secular states should base their laws upon Vatican morality--an institution that itself has become increasingly orthodox since the ascendancy of Pope John Paul II.
We start our review with Justice Anthony Kennedy. Although conservative, he usually displays more of a libertarian streak. And although Catholic, there is nothing in his background that he is outside the mainstream.
With the departure of Justice Sandra Day O'Connor from the high court, Kennedy has become the swing vote. While he swung in support of upholding Roe in the Casey decision, with Carhart he has swung in the opposite direction. It could be that with O'Connor's departure and the arrival of both Roberts and Alito that he is being more influenced by his much more traditionally minded colleagues. This seeming change of heart combined with a court in flux leaves the objective observer to wonder where he now stands on choice.
In turning to his co-religionist colleagues, simply defining Justices John Roberts, Antonin Scalia, Clarence Thomas and too a lesser extent, Samuel Alito merely as "Catholic" does not tell the whole story. They adhere to a more severe, less independent form of Catholicism than most American Catholics--certainly more to the right of the mainstream of most of my fellow co-religionists. Former Supreme Court Justice William Brennan could be aptly described as "Catholic" -- but these justices are more accurately Catholic Right. At least three of the Justices have-to varying degrees ---links with the very conservative and secretive Opus Dei, a lay (non-clerical society) group that has the status of "personal prelature," an entity that answers only to their prelate in Rome
A review of Justice Alito's background shows no connections to Opus Dei or similar organizations. In fact, his primary home parish in New Jersey is actually very mainstream. He sometimes attended Mass at St. Aloysius in Caldwell, New Jersey. And while Alito could not be classified as ultra-orthodox, his position on abortion is just what the Catholic and other Religious Right wants in a Supreme Court justice. Still, it does appear that while some on the Left questioned an Alito-Opus Dei link, they were one nomination battle too late; those were issues that should have been raised with John Roberts.
However, Alito's mother's statement; "Of course he's against abortion " -- as well as the Religious Right's strong advocacy during his nomination foretold how he might decide a case such as Carhart. In fact, George Washington Law School Professor Jonathon Turley appears to be right on the mark in predicting, "There will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues."
Justice Clarence Thomas may have the closest ties to Opus Dei. His conversion was handled by Opus Dei priests John McCloskey, the highly visible American face of Opus Dei as well as Father Paul Scalia (Opus Dei priest and son of the Supreme Court Justice). Joining in the ceremony was the non-Opus Dei, but socially conservative priest Monsignor Peter Vaghi.
Thomas was raised Catholic. He attended a Benedictine seminary for time on a track to enter the priesthood, but left after encountering racist comments there. Upon his marriage to Kate Ambush, he began attending an Episcopal church. Thomas and his first wife subsequently divorced. Shortly thereafter his remarriage to Virginia Lamp, Thomas converted back to Catholicism, but his return was clearly with a stricter traditionalist bent. This is not only indicated by his Catholic reintrodoction by the aforementioned Father McCloskey, Monsignor Vaghi and Father Paul Scalia but his acquaintences since then.
As an example, Justice Thomas has made appeared at Tom Monaghan's Ave Maria Law School, delivering the school's first annual Ave Maria Lecture in 1999.
Chief Justice John Roberts' has somewhat ambiguous ties to Opus Dei, but whatever his exact relation to the secretive group, it is not difficult to conclude that he shares many of their religious outlooks. His children reportedly attend an Opus Dei school in Maryland; and perhaps more importantly, Roberts himself is quite close to the afore-mentioned Monsignor Vaghi.
(Roberts' wife, Jane, serves as legal counsel for "Feminists for Life of America," an organization that opposes abortion even in cases of rape, incest, severe birth defects or even to save the mother's life. Hmmmm.)
This brings us next to Justice Antonin Scalia. Is he an Opus Dei member? Probably not. There have been carefully worded denials on his behalf that do deserve to be taken at their word.
But that still does not mean that he is neither sympathetic nor uninterested in their agenda. Most likely, Justice Scalia is an Opus Dei cooperator--someone not officially a member, but sympathetic and supportive of its goals.
In fact, he attends St. Catherine of Siena Church in Falls Church, Virginia, St. Catherine's has a strong Opus Dei presence, complete with Sunday morning Latin Mass. It is the Washington, DC parish for many Opus Dei members and cooperators, such as former Senator Rick Santorum. Becoming "incorporated" as a "member" is a long and difficult process that may be impossible for either e federal judge or Supreme Court justice to complete. Furthermore, his aforementioned son Paul has been reported, to be a priest in the Order of the Holy Cross Opus Dei's priestly order as well as being affiliated with Fr. Frank Pavone's Priests for Life.
Consider this observation from Time:
For years, Catholics in Washington have kept informal count of possible high-profile Opus Dei members and sympathizers including Justice Antonin Scalia and almost-Justice Robert Bork, Senators Rick Santorum and Sam Brownback, columnist Robert Novak and former fbi head Louis Freeh. The tally was not totally arbitrary: Freeh's child went to an Opus Dei school, and his brother was a numerary for a while; Scalia's wife has attended Opus events, and the Justice is close to an Opus priest ...
And as Dianne DiNicola, founder of Opus Dei Action Network noted:
"Opus Dei is very good at going to people of influence and promoting their own agenda. And sometimes these people don't even know they're doing Opus Dei's bidding."
That happens as well at the level of the "co-operators," she says, who are described as "supporters" of Opus Dei's work. "Define what 'support' means," she says. "You have to ask them very specific questions to get any real answers. I think Opus Dei uses the co-operators for its agenda, and they ask them for money. I talked with one man, a former co-operator, who told me he finally saw through it, and it just turned him off." (ii)
To understand how Justice Scalia's orthodoxies may shape his legal reasoning, consider this statement regarding the death penalty:
"Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the church-going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next?" (iii)
Huh? If an innocent person is mistakenly put to death, he has nothing to worry about? Hey Justice Scalia, just one question -- while our victim is in paradise--unintentionally well ahead of schedule--what happens to his wife and kids here on earth? Who pays their bills or what do we tell his children when they cry for their daddy? This logic echoes the old Puritan test to determine if a person was a witch. Dunk the accused in water, if the water accepts her, she may drown, but at least she is not a witch. If she does not drown--let's kill the witch! Well, so much for the Catholic ultra-orthodox protecting the "dignity of life" or keeping society from descending down slippery slopes.
But why is this important? Simple; we have a president who while claiming to be a friend to American Catholics, is in fact only faithful to a sliver of a reactionary elite. And in personifying an even more exclusionary form of conservatism, caters to a portion of the America electorate that is clearly not the majority, let alone a cross-section. And in doing so, a highly subjective orthodox Catholic majority is increasingly being foisted upon Americans of all stripes, but even upon Catholics who do not accept such severity.
In light of all this, what should be done? Next week I will not only discuss the issues that need to be raised--particularly by mainstream American Catholics, but perhaps more importantly, how they must be raised.
(i) Newsweek, March 9, 2001
(ii) "The Real Story on Opus Dei," AP, Canada, 2006
(iii) Remarks by Antonin Scalia, "God's Justice and Ours," First Things 123 (May 2002): 17-21"
Note: Content reposted with the permission of the author.