Friday, Feb. 20, 2009

Catholic Judges and Abortion: Did the Pope Set New Rules?

By Douglas W. Kmiec

Much has been made of the statement on abortion that Pope Benedict XVI issued earlier this week after meeting with Nancy Pelosi. But the Vatican's choice of words as they related to the Speaker of the House was quite predictable, given her pro-choice stance and her position as a high-ranking Catholic Democrat. The Holy Father simply made clear their differences on the issue and reminded the American politician of her responsibilities as a Catholic to protect life "at all stages of its development."

What was quite surprising, and overlooked, had to do with a different branch of the U.S. government. If you read it carefully, the statement is actually quite radical — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion. (See pictures of Pope Benedict XVI's trip to America.)

As a lifelong Catholic, Pelosi could not feign surprise at being called upon by the Church to use her gift for persuasion to restrict abortion legislatively, or at least not to be its advocate. But until now, the Church had not formally instructed judges in a similar fashion. As written, the Pope's statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts.

"His Holiness," the statement read, "took the opportunity to speak of the requirements of the natural moral law and the church's consistent teaching on the dignity of human life from conception to natural death which enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work in cooperation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development." (See the top 10 religion stories of 2008.)

To get a sense of just how sharp a break with the past this is, all one has to do is take a look at what Supreme Court Justice Antonin Scalia, himself a Roman Catholic, wrote in 2002 in an essay in First Things. "[Abortion involves] ... private individuals whom the state has decided not to restrain. One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws society has failed to enact," he wrote. "Thus, my difficulty with Roe v. Wade is a legal rather than a moral one ... [I]f a state were to permit abortion on demand, I would — and could in good conscience — vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."

Until the Pelosi statement, the prior instruction from the Church's Congregation of the Doctrine of the Faith and encyclical writing seemed to confirm Scalia's reasoning. There was an implicit understanding that the Church's admonition to its faithful to change the law permitting the choice of abortion had to be understood and applied in light of the scope of office. Catholic legislators make policy and could be so instructed, but judges, as Scalia wrote, had "no moral responsibility for the laws [their] nation has failed to enact."

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It is, of course, quite possible that the Holy Father was not intending to impose a new moral duty on Catholic jurists at all, and that in the rush of the event, someone in the Vatican press office mistakenly included the judicial terminology. But taken at its word, the Pope's new admonition to "jurists" to undertake an activist, law-changing role suggests that the concept of Originalism (adhering to the textual meaning of laws at the time of adoption) subscribed to by Scalia and often by three of the four other Catholics on the Supreme Court (Clarence Thomas, Samuel Alito and John Roberts) is a morally deficient method of constitutional interpretation.

No doubt Scalia would insist that since abortion is not in the constitutional text, disavowing an abortion right would square Scalia and the other Catholic jurists with the Church. But not so fast; Scalia says abortion can be legislatively permitted or not as the people choose, and he will enforce whatever is democratically chosen. That's hardly what the Church is hoping from Catholic jurists, is it? (Read "Obama Tries to Renew Faith in a Faith-Based Office.")

If the Holy Father is pointedly telling not only Congresswoman Pelosi but also judges that they must use their office to undo the legal protection for abortion, how is this consistent with their judicial oath, or with the fact that the Constitution in Article VI puts religious belief off-limits for selection or qualification for office, including judicial office? In particular, precisely what is a Catholic jurist to do when confronted with the application of laws restricting abortion that, as interpreted by the courts in rulings like Roe v. Wade, would be unconstitutional? If a Catholic judge invalidated laws restricting abortion in conformity with the constitutional precedent, he or she would presumably be cooperating with the evil of abortion. On the other hand, if a Catholic judge ignored the precedent — perhaps seeking to avoid Church sanction, such as the threats of communion denial aimed at pro-choice Catholic lawmakers by some bishops in the past election — there would likely be increasing claims of religious bias. (See pictures of Barack Obama behind the scenes on Inauguration Day.)

In 2002, when discussing the death penalty and his faith, Scalia expressed relief that the Church had yet to find the death penalty categorically immoral since that was neither his personal conclusion nor the Originalist position on the Constitution. "I like my job, and would rather not resign," he wrote in 2002. "[I]n my view, the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty — and if that fails, lead a revolution. But rewrite the laws he cannot do." (Read "The Supreme Court's Group Hug.")

Why does Scalia recognize a duty to resign were the law of the Constitution dealing with the death penalty to become inescapably at odds with Catholic teaching, but not in like circumstance for abortion? For Scalia, it is the difference between two qualitatively different constitutional claims — a textual one (the death penalty being clearly anticipated by the Constitution) and a nontextual one (abortion). But under Rome's new direction to jurists to get busy correcting the law, that interpretative nicety won't cut it. The duty for Scalia and the other Catholic jurists turns on what faith requires, not what the text does or does not explicitly say. No more Pontius Pilate.

Might there be a different, less intrusive course for the Church? Yes: clarify the Pelosi statement by continuing to observe the difference between a jurist and a legislator. That may be awkward from the standpoint of the unyielding lines of moral rather than political principle, but it has the merit of following the instruction of St. Thomas Aquinas, who argued that "all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

Few are pleased with the abortion jurisprudence as it is. But imposing moral duties on Catholic jurists that are incompatible with their envisioned judicial role in a democracy is hardly likely to make it better.

Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can a Catholic Support Him? Asking the Big Question about Barack Obama (Overlook/Penguin 2008).

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