A Poser For His Holiness

     [As it’s Sunday, and as abortion has been much in the news of late, I thought I’d resurrect this old piece from Eternity Road, which first appeared there on November 7, 2005 -- FWP]

    

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     Your Curmudgeon had more or less resolved to take Mondays off from blathering here, but he can't help himself if an item should leap out at him and demand his attention.

     As is generally known, Pope Benedict XVI has taken a very hard line against Catholic politicians who, for whatever reason, vote to uphold laws or court decisions that have legalized abortion. During the 2004 presidential campaign, Cardinal Francis Arinze issued a directive, which lay Catholics supposed to have the authority of the pope behind it, forbidding Catholic priests to offer the sacrament of Communion to recognized pro-abortion-rights Catholic politicians -- a directive that hit presidential candidate John Kerry, a nominal Catholic, right in the kishkas.

     Your Curmudgeon, no friend of Kerry's, wrote in opposition to that order at the time. He's still opposed to it. Today, with the imminent elevation of Samuel Alito to the Supreme Court, which will give it five Catholic Justices for the first time in the nation's history, a number of persons are all but slavering over the prospects for a near-term reversal of the seminal pro-abortion-rights decision, Roe v. Wade. After all, the pope has threatened Catholic politicians who could do something to end legal abortion with excommunication, so they'll either have to bend or leave the Faith. Right?

     Let's postulate for the moment that the Vatican's position will stand henceforward. What did Roe v. Wade really do? Think carefully before you proceed to the next paragraph. Most people don't know. Like as not that includes you.

     The general belief is that the Roe v. Wade decision legalized abortion in these United States. In point of fact, the majority of the states had already legalized abortion within their borders, at least in certain circumstances. What Roe v. Wade did was to strike down states' laws against abortion in the first two trimesters of gestation as unConstitutional. In other words, the decision federalized the subject, withdrawing legislative discretion over the subject from the purview of the states.

     The reversal of Roe v. Wade would return discretion over abortion law to the state legislatures: no more, no less. It is therefore conceivable that, were the decision reversed, many -- perhaps even all -- the states would perpetuate the legality of abortion under all circumstances.

     "Well, so what?" many would say. "If that's all the Supreme Court can do, then let it do that -- and a Catholic Justice could be expected to do at least that much, if he's a sincere Catholic." Right?

     The problem here is lack of vision. For the very same mechanism that moved the Court to grab for unConstitutional power over state law in Roe v. Wade could easily produce the following scenario.

     Imagine that you're one of the Catholic Five. Imagine further that you're a strict constructionist, who insists that the text of the Constitution means what it says and not something else. Well, as it happens, that document does not grant Congress the power to define local crimes -- that is, felonies and misdemeanors whose commission, investigation, and prosecution are confined within a single state. (That's why the Supreme Court struck down the attempt by Congress to enact a federal law against rape a few years ago. Congress tried to fan-dance it as a matter of "interstate commerce," but at the last, the Court decided that that was just too silly for words.) So the reversal of Roe v. Wade could well be followed by the continuation of legal abortion in all fifty states. After all, the earlier laws have been struck down; the state legislatures might well decide not to re-enact them. What then?

     Imagine further that four of your fellow Justices are willing to undertake another anti-Constitutional power grab, but this time in the opposite direction. That is, they're willing to read a federal power to criminalize entirely local acts into the Constitution for the purpose of banning abortion everywhere. They want to know if you'll stand with them.

     What do you do?

     The Constitution hasn't been amended, nor does the Court possess the power to change it by fiat. The state governments have declined to act. But your reading of the matter, which is entirely consistent with 228 years of American history, is that, deplorable as the situation is, the Court lacks jurisdiction over the subject.

     But there's that leeeetle matter of excommunication...

     A Justice caught on the horns of that dilemma would be compelled to choose between his acceptance by the Church and his oath of office, which he swore before God. His personal convictions about the horror of abortion would be entirely irrelevant.

     Don't dismiss the scenario as contrived. Once there are five Catholics on the Court, it will become quite real. After all, what's obligatory for any one of them would be obligatory for all of them, wouldn't it? Nor would abortion be the last subject on which such pressure is felt. The Church has wandered far afield in these latter days, making pronouncements about "social justice" and "environmental stewardship" that could easily be made into levers on Catholic politicians, just as the Church is doing with abortion.

     Does a pope -- does the Church -- have any business putting a man in such a cleft? Granted that, as a private institution, it has the legal right to set whatever rules for membership it pleases. Is this the sort of pressure it wants to put on Catholics in public life? Pressure enough to prevent good Catholics from running for office at all? Pressure enough, given the Church's exhortations to create a "preferential option for the poor," to leave a Catholic voter unable to support either candidate for most positions in most elections?

     Remember how the opponents of John F. Kennedy muttered that, were he elected president, the White House would thereafter be taking orders from the Vatican? Do America's Catholics really want to give America's non-Catholics reason to believe that? Does the Vatican?

     Food for thought.

     "Render unto Caesar the things that are Caesar's, and unto God the things that are God's." -- Jesus of Nazareth