The Supreme Court has turned the Constitution into a Religious Text

††††††††††† During the famous Kennedy - Nixon presidential campaign in 1960, one of the main arguments in favor of Nixon was that Kennedy was a Catholic. It was received wisdom that, as a Catholic, Kennedy would have to follow the church's teachings when they conflicted with the law of the land. Starting with the nomination of Geraldine Ferraro for Vice-president in 1984, Catholic politicians who support abortion rights have been regularly castigated by clergy and threatened with being denied Communion.

††††††††††† In 2004, Cardinal Raymond Burke, the former St. Louis archbishop, said he would not give Communion to Democratic presidential nominee John Kerry. In 2007, Bishop Thomas Tobin asked Congressman Patrick Kennedy, the son of Senator Edward Kennedy, not to take Communion because of his support for abortion rights. In 2008, Bishop Joseph Francis Martino of Bidenís hometown of Scranton, Pennsylvania, said Biden would be denied Communion in the Scranton diocese over his support for abortion rights.

††††††††††† Immediately after Biden won the presidency, the US Conference of Bishops approved a teaching document about the role of the Eucharist and Catholic politicians who support abortion rights. It raised the possibility of denying Communion to Biden, a regular church-goer and the second Catholic president.

††††††††††† As recently as April 7 of last year, Speaker of the House Nancy Pelosi received a letter from Salvatore Cordileone, the archbishop of the Diocese of San Franciso, saying she must either repudiate her support of abortion rights or stop speaking publicly about her Catholic faith, and that if she didn't, she would not be allowed to receive Communion.

††††††††††† One can certainly accuse some members of the Catholic clergy of being against the separation of church and state without being accused of religious bigotry. It is also undeniable that the Catholic church does not believe in the equality of the sexes, as it doesn't ordain women priests.

††††††††††† On September 12, 1960, Kennedy spoke before the Greater Houston Ministerial Association about his religion and the separation of church and state. He said, "I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the president (should he be Catholic) how to act... But let me stress again that these are my views--for contrary to common newspaper usage, I am not the Catholic candidate for president. 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. 

††††††††††† "Whatever issue may come before me as president--on birth control, divorce, censorship, gambling, or any other subject--I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise."

††††††††††† Kennedy won the presidency by the narrowest of margins. But today, 63 years later, the fears of electing a Catholic president have been realized in the Supreme Court's withdrawal of a woman's right to an abortion.

††††††††††† Chief Justice John Roberts attended La Lumiere, an elite private Catholic boarding school. Brett Kavanaugh and Neil Gorsuch are graduates of Jesuit Georgetown Preparatory School in Bethesda, Maryland. Georgetown Prep is all boys and costs $42,000 a year for a day student, over $60,000 for a boarder. It is the only Jesuit boarding school in the United States. (Jerome Powell, Chairman of the Federal Reserve Board is also a Georgetown graduate.)

††††††††††† Clarence Thomas attended St. Pius X High School for two years before transferring to St. John Vianney's Minor Seminary on the Isle of Hope. He also briefly attended Conception Seminary College, a Catholic seminary in Missouri.

††††††††††† Amy Coney Barrett attended St. Mary's Dominican High School, an all-girls private Catholic school. Sonia Sotomayor attended Cardinal Spellman High School in New York. Four of these private Catholic high school graduates: Gorsuch, Kavanaugh, Thomas, and Barrett, are four of the five votes the Court used to get rid of the right to an abortion.

††††††††††† The fifth vote was from Samuel Alito, also a devout Catholic. Alito, one of only two justices who went to a general admission high school, joined an organization at Princeton that was opposed to allowing women into the student body. That makes six of the nine justices who are graduates of private Catholic high schools.

††††††††††† In 1973, when Chief Justice John Roberts graduated from high school, there were 1 million Catholic high school students out of a total of 15 million, about 6%. Today the percentage is 3%. So, to have a Supreme Court where 2/3rds attended Catholic schools shows some kind of undemocratic bias in the selection of Justices.

††††††††††† Anyone who thinks that overturning Roe was based on the law is living in a dream world, as is the Supreme Court. The Court has been trying to take away the right of women to control their own reproductive choices for years. To do so, they have had to twist the law into religious doctrine.

†††††††††† The Catholic Church is run entirely by men, most of whom have no children and are voluntarily celibate. Their personal knowledge of and understanding of what it takes to father and raise a child, not to mention bear one, is minimal and purely theoretical.

††††††††††† The first sentence of the Dobbs decision overruling Roe is "Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life." The only problem is that it's not a moral issue for the Court, it's a religious one.

††††††††††† The Supreme Court is not opposed to killing. It supports the death penalty. So, the issue is why the Court supports killing in death penalty cases but opposes it in abortions, overlooking, for argument's sake, the obvious fact that most people consider the fetus in the first trimester to be part of the mother and not a human being at all. The Supreme Court is saying abortion ends an innocent, as opposed to a guilty, life. Once it is born, according to Catholic doctrine, it is tainted with original sin and needs to be baptized to protect its immortal soul. The insertion of "innocent life" in the Dobbs decision shows the religious intent of the Court to make Catholic doctrine the law of the land concerning abortion. Innocent is a religious, not legal, argument in the absence of due process. Why didn't the Court just say "Abortion ends a life", or " a potential life." Innocent is an irrelevant, extraneous term. Guilt or innocence is irrelevant. From the standpoint of abortion, either it's a life or it isn't. Adding "innocent" shows the true religious intent of the decision because it's meaningless. What would a guilty fetus be?

††††††††††† In the famous Burwell v. Hobby Lobby case in 2014, the Court gave religious rights to a corporation while simultaneously taking a slap at the Affordable Care Act. The ACA required profit-making corporations (corporations are fictitious individuals created by the state) to offer birth control to their employees in their health plans. In holding for Hobby Lobby, the Supreme Court, gave religious rights to for-profit secular corporations. While there is a religious exemption in the Affordable Care Act, the decision written by Justice Alito, who also wrote the decision invalidating Roe, found that the Religious Freedom Restoration Act gave private, profit-making corporations the right to impose their religious beliefs on their employees.

††††††††††† The religiosity of the Court's Dobbs decision is most manifest in the case of rape. Rape is a capital crime. Between 1930 and 1972, when the Supreme Court outlawed the death penalty for non-murder crimes, 455 people were executed for rape in the United States (89.1% were Black). The Dobbs decision overruling Roe means that states are free to deny women an abortion even when they have been raped. This puts the Supreme Court on the side of the criminal and against the victim. Anyone who thinks that life begins with rape has a completely biological idea of what constitutes life and, ironically, no understanding of the love and spirituality necessary to conceive and raise a child who will grow into a healthy, moral adult. Richard Posner, a famous Federal Appeals Court Judge who wrote 40 books, including The Economics of Justice, considers a woman's egg to be her property which, in the case of rape, is being stolen from her.

††††††††††† The truth is that Americans hold conflicting views on who is a person whose life is protected by the Constitution. The anti-abortionists hold that a fertilized zygote is a person, I guess because that's when they think it acquires a soul. A soul is a religious concept absent from the law. The pro-choice supporters think it is the mother who is a person, and her right to live and control her life takes precedence over theoretical possibilities.

††††††††††† Bringing a child to term is hard, painful, and life-threatening work. Mothers must make many personal sacrifices in order to bring a healthy child into the world. There is no way to compel someone who is forced to have a child to eat the right foods and stop drinking and doing drugs while pregnant. History has shown that when third parties inject themselves into this most personal and emotional of all decisions, whether it's euthanasia enthusiasts in the United States and Nazi Germany in the 1930s or the now regretted one-child policy in Communist China, disaster is sure to follow.

The Role of History in Supreme Court Decisions.

††††††††††† The Court decided that the difference is whether the right to obtain an abortion is "rooted in the Nationís history and tradition and whether it is an essential component of 'ordered liberty.'" The Court found that the right to abortion is not deeply rooted in the Nationís history and tradition because 3/4ths of the states considered it a crime in 1868 when the Fourteenth Amendment was ratified.

††††††††††† While it is true that 3/4ths of the states banned abortion, it is also true that the majority of those states (23 out of 32 or 71.8%) included an exception if the life of the mother was at risk. If the Dobbs majority had been intellectually honest as lawyers, its decision would have had to include the right to an abortion when the life of the mother is endangered by her pregnancy. It didn't follow its own logic because it was loath to permit any kind of abortion to have Constitutional sanction. Dobbs is a religious, not a legal decision. States are now free to ban abortion at all stages of pregnancy.

††††††††††† Is there anyone who would be opposed to abortion to save the life of the mother? You bet. My wife's grandmother, a devout regular churchgoer, had four children. After the fourth, her doctor said that if she had a fifth, she'd die. So she went to see her priest to ask his advice. "So die," is what he said. Was it really moral to leave her four children motherless to fulfill some philosophical idea of sin? Real life is too complex to conform to any absolutist philosophical stricture.

††††††††††† Similarly, my wife's cousin's rationale for why a woman should be forced to bear the child of her rapist is,"it wasn't the fetus's fault."

††††††††††† The truth is that many men have no understanding of pregnancy and childbirth. In contemporary America, the male role is as sperm donors and breadwinners. Traditionally, women have gone off by themselves to give birth.†††††††††††

††††††††††† In 1787, when the Constitution was ratified, there were 4 million people living in the United States, 900,000 of whom were slaves. Life expectancy was 38 years because of the high mortality rate of children. Adults and children died all the time. This is not exactly right. Once a person reached five years of age, they could expect a more or less normal lifespan.

††††††††††† The Colonial Assembly that met in Philadelphia on September 5, 1774 published a declaration of the rights of the subjects of Great Britain in the Colonies, a preliminary draft of the Declaration of Independence. In it, the North Carolina Delegation Resolution #1 read, "That they (British subjects in the colonies) are entitled life, liberty, and property." This became life, liberty and the pursuit of happiness in the Declaration of Independence two years later. But the intent is clear. Property rights are fundamental in the Constitution. Some scholars, like James W. Ely, Jr., think the property right is the guardian of every other right.[1]

††††††††††† Yes, abortion was illegal in 3/4ths of the states when the Fourteenth Amendment was passed, making the Constitution binding on the states. What is wrong with the Court's argument is they make it seem that abortion was illegal out of concern for the life of the fetus.

††††††††††† In the New Jersey Constitution of 1776, both women and free Blacks could vote as long as they owned ₤50 of property and had been residents for 12 months. In 1807, a "reform" bill abolished the property requirement for white, tax-paying men but took the vote away from Blacks and women. What was changing?

††††††††††† In 1803, Denmark was the first nation to outlaw the international slave trade. Britain followed in 1807, and the United States in 1808. At the same time, Eli Whitney's cotton gin which was invented in 1797, turned the American South into King Cotton, which required copious amounts of manual labor.

††††††††††† One reason abortion was illegal was that the female offspring was property, the property of the enslaver, or the property of the father or husband. The people who wrote the Constitution, all men, some of whom were slave owners who fathered children with their slaves, made sure the Constitution protected their property rights. The idea that people who were willing to see their own offspring endure a life of bondage would care about the unborn is too ludicrous for serious debate. Are we now to seriously entertain the implied argument of the current Supreme Court majority that people who supported the legality of slavery, the rape of their slaves and wives, their right to marry off their daughters without their consent, and the right of Masters to split up slave families through sale, outlawed abortion because they cared about the unborn? [2]

††††††††††† The people who made abortion illegal saw nothing wrong in allowing the children of slaves to be sold away from their parents. Margaret Garner, the inspiration for Toni Morrison's book Beloved, was a slave who killed her own daughter and tried to kill her sons and herself rather than allow her family be re-enslaved. It is likely that other slaves tried to abort their children rather than go through the pain and risk of childbirth just to see their children enslaved or sold away. Slaves were people, after all, even if slaves are rarely depicted as such in discussing history. Even accepting the Court's dubious morality claim, is it immoral to abort the fetus of a child who will be born into slavery? It is intellectually dishonest for the Court to claim the ban on abortions in antebellum times was a moral act when applied to slaves.

††††††††††† It also shows the contingent nature of the morality of abortion. Sixty percent of women getting abortions in the United States today are already mothers. Half of those, 30%, of all abortions, already have two or more children. Does anyone really think that a woman who already has two children but feels she can't handle a third for whatever reason is being immoral by aborting her fetus and that some third party who will bear no responsibility for providing for and raising the child cares more about her unborn child than she does?

††††††††††† The Court in Dobbs hasn't abandonned that paternalist approach in justifying the absence of the right to abortion. It cites laws "which generally allow women to drop off babies anonymously and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home."This overlooks the fact that childbirth is a life-threatening medical condition. Forcing someone to give birth is involuntary servitude which is banned by the Thirteenth Amendment. Also, there is no such thing as anonymity since the discovery of DNA, and any responsible parent or child would seek to determine the medical history of their biological parents if only to understand their own healthcare needs and risks. But more importantly, the Court's logic can be considered supporting child trafficking after siding with rapists. The Supreme Court is saying the state is within its rights to force women to give birth to supply babies to the adoption market. The mention of adoption as a justification for banning abortions belies the Court's claim that it may not consider the real-world effects of its decisions. "We do not pretend to know how our political system or society will respond to todayís decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly." The Dobbs decision allows states to tell pregnant women "so die."

††††††††††† Here, the pro-choice forces demonstrate their incompetence by not introducing legislation requiring the state to pay for the medical care, upkeep, and child-rearing costs for any woman denied an abortion who is forced to carry the child to term.

††††††††††† So, according to the Court majority, the unenumerated rights in the Constitution had to be present in the mid-nineteenth century, when women and Blacks were not allowed to vote or own property. They weren't allowed to sit on juries. They could be raped by their husbands or given away in marriage by their fathers. Like slaves, women had no rights. The children of slaves were the property of their masters.

Why Roe was Overturned

††††††††††† The Court's decision to overturn Roe is a perfect example of how the Court lies. And I don't mean like when Brett Kavanaugh during his confirmation hearing said that Roe was "settled law" and then voted to overturn it, or when Amy Coney Barrett said she believed in stare decisis and then voted to overturn Roe. I mean lying in its decisions. It held "The nature of the Courtís error [in Roe], like the infamous decision in Plessy v. Ferguson, was also egregiously wrong and on a collision course with the Constitution from the day it was decided."

††††††††††† Plessy v. Ferguson, the case that permitted segregation as long as the facilities were equal, took away from Black people clearly enumerated rights in the Constitution. When Plessy was argued, the Blacks claimed that being separated made them second-class citizens. The Court said no, that if they felt disrespected by being separated, it was a psychological problem of the Blacks, pointing to the purported equality of facilities. That decision was wrong in substance as well as the law. Segregation was wrong, period.

††††††††††† To compare Brown v.Board of Education, which overturned Plessy, with the Dobbs decision overturning Roe shows the clever dishonesty of the Court by raising a trivial legal argument to the level of a serious centuries-long denial of rights. Alito says they were both on a collision course with the Constitution from the beginning. Plessy overruled clear provisions of the Constitution. So, what was the problem with Roe?

††††††††††† It was mechanical, not substantive. The fight over abortion, from the Court's perspective, is just a fight over exactly when a fetus becomes viable, which is when the state has a compelling interest. The Justices can find no Constitutional basis to justify the trimester scheme in Casey. Part of its reasoning for overturning Roe is that progress in medical care has changed the point of viability of the fetus. Notwithstanding medical advances, lungs don't develop until 21 weeks. The defects in Roe are legal procedure, not substantive because the Justices say the decision should be left to the states, not that abortion is illegal, as is racial segregration in schools.

††††††††††† Even though Plessy was obviously wrong from the start, the Warren Court that overturned it was composed of a former Governor, three former Senators, and two former Attorney Generals, one of whom had been a prosecutor at the Nuremberg War Crimes Trials. It was a unanimous 9-0 decision.

††††††††††† The Dobbs decision overturning Roe was decided by 5-3-1, all lawyers with no significant accomplishments to their names, other than having the proper political pedigree and young age to be appointed for a lifetime to the bench. They have spent their whole life playing telephone with other lawyers. Logic would seem to dictate that a Supreme Court, the final arbiter of all conflicts in the government from which there is no appeal, should be populated by renowned people of unquestioned integrity with diverse experiences and widely recognized prior accomplishments. Nine lawyers from three law schools who no one outside the legal profession had ever heard of before they became justices doesn't warrant throwing out Stare Decisis, the core function of the law.

††††††††††† Oliver Wendell Holmes, Jr., one of America's greatest Justices, said about the law. " The life of the law has not been logic: it has been experience. The law embodies the story of a nationís development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

††††††††††† The Court's majority in Dobbs said the exact opposite: "But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the publicís reaction to our work."

††††††††††† The Court's claim of impartial interpretation of the law is belied by its rewriting of the Second Amendment. (See

Stare Decisis - The Role of the Court

††††††††††† Stare Decisis is Latin for "to stand by things decided." It is the core function ofall courts. It serves several purposes. It "protects the interests of those who have taken action in reliance on a past decision. It reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation. It contributes to the actual and perceived integrity of the judicial process, and it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past."

††††††††††† So, overruling precedent is a serious matter, given the interdependence of judicial decisions. The Court is supposed to provide certainty, stability, and justice. The Dobbs decision has done the opposite. The Court rarely overturns precedents, so what prompts it to do so?

††††††††††† The previous major decisions that had to be overruled were Dred Scott, Lochner,and Plessy. Dred Scott was a slave who sued for his freedom after being brought to a free state. Rather than limit itself to the question at hand, the freedom of Dred Scott, the Court gratuitously went further, declaring that Black people could never be citizens and ruling that the Missouri Compromise of 1820 was unconstitutional. Dred Scott was overruled by the Civil War and the passage of the 13th, 14th, and15th amendments.

††††††††††† Joseph Lochner was a baker in Utica, New York, who worked his employees for more than 60 hours a week in violation of New York's 1895 Bakeshop Act. The Court in Lochner famously ruled that the labor restrictions were a violation of a worker's right of contract protected by the equal protection clause of the 14th Amendment. In other words, New York's law took away from bakers the right to work more than 60 hours a week.

††††††††††† The Lochner doctrine was used in the 1930s to invalidate much of the New Deal during the Depression. The Court ruled that minimum wage laws for women and children were unconstitutional because they deprived workers of their right to work for less. After Roosevelt's 1936 landslide and his disastrous attempt to "pack" the Court, Justice Owen Roberts switched sides to uphold a Washington State minimum wage law, consigning Lochner to the dustbin of history.

††††††††††† An interesting side note about the double-edged nature of stare decisis is that some of the "four horsemen" who were the conservative anchor on the Court, old men who had served decades on the bench, could see that their jurisprudence was not helping to remedy the horrendous unemployment and economic problems facing the nation. Some, specifically George Sutherland, who had been a Senator, and Willis Van Devanter, who had been more concerned with judicial procedures than deciding cases and was seriously ill, wanted to step down to make way for new blood. As men of high honor, their very identities as Supreme Court Justices compelled them to adhere to stand by things decided ‒ stare decisis. They couldn't very well start voting in contradiction to ideas they held and acted upon their whole lives. They had made decisions that they couldn't go back on.

††††††††††† Federal court judges have a mandatory retirement age with a pension plan.†† Supreme Court justices, appointed for life, have no retirement plan. Congress determines their pay after leaving the bench. In 1932, as the economic crisis deepened, Supreme Court justices' retirement pay was cut in half. It was restored in 1934, but as the Court started declaring its New Deal legislation unconstitutional, Congress got mad and decided to punish the justices by cutting their retirement pay again, creating a financial incentive for the justices to stay. Realizing its error, Congress quietly passed a bill allowing Supreme Court justices to retire at full pay, just like the rest of the federal judiciary. Van Devanter then retired on June 2, 1937. That broke the logjam, and Sutherland followed six months later.

††††††††††† In 1896, the Supreme Court ruled in Plessy v. Ferguson that distinctions based on skin color were not racist, upholding the legality of segregation laws under the police and health powers of the state. It has never explicitly been overruled. Fifty-eight years later, in Brown v. Board of Education, the Court ruled that separation is inherently unequal, so segregation in schools is illegal. The ruling set off a firestorm and didn't touch other forms of racial discrimination, like in voting or public accommodations. So, why did the court act?

††††††††††† The atomic bombs that were dropped on Hiroshima and Nagasaki ending World War II in the Pacific, were made mostly from uranium taken from the Shinkolobwe mine, the richest vein of the metal in the world, in Katanga Province of the Belgian Congo. With the anti-colonial movement gaining traction in Africa after the war, the United States saw the need to curry favor with the newly emerging independent nations if only to keep Shinkolobwe's ore out of Soviet hands during the Cold War.

††††††††††† The United States couldn't be seen to be a segregated country and expect the African nations to sign as supporters of ours in the contest with Communism.

††††††††††† So, what was the crisis that required the Supreme Court to reverse Roe v. Wade? There wasn't any. Like Dred Scott, instead of deciding the narrow issue of whether Mississippi's 15-week ban was constitutional, as Chief Justice Roberts did, the Court majority took the ball and ran it over the finish line to decide all kinds of extraneous things. Then, it used the political cop-out of saying that the decision applies only to abortion, as it did in Bush v. Gore , which is legal-speak for "this is a political decision."

Why Roe wasRight

††††††††††† The decision in Roe v. Wade was handed down on January 22, 1973, five days before the signing of the Paris Peace accords ending America's combat role in Vietnam and securing the release of its prisoners of war. It capped a decade that transformed the United States.

††††††††††† Per capita income in the United States increased by 50% between the end of World War II in 1945 and John Kennedy's election to the presidency in 1960. In 1963, it was possible to get a good job with only a high school diploma at a salary high enough to marry, buy a house and raise a family. By 1970, just seven years later, that would be a pipe dream. The Vietnam War exposed the internal contradictions of a society waging a major war, putatively for someone else's freedom, largely with draftees who couldn't vote, many of whom could still be denied service in restaurants and hotels merely because of their skin color. At the beginning of 1967, when the United States had 490,000 troops in Vietnam,it was illegal for Blacks and whites to be married and live in Virginia.

††††††††††† Competition from foreign imports and offshoring of manufacturing driven partially by environmental regulations brought middle-class income growth to an abrupt halt which was compensated for by women having to enter the workforce in droves. In 1950, 86.4% of men were in the labor force compared to 33.9% of women. In 2020, women in the labor force had risen to 60.3%, while men's participation rate had fallen by 1/6th to 70.3%.

††††††††††† Forcing people to bear children they couldn't afford or have time to raise merely to satisfy someone else's religious beliefs seemed to be clearly a violation of the First Amendment prohibition against establishing religion, although the Court did not cite those grounds. When everyone lived on a farm, children were an economic asset. Even a three-year-old can feed the chickens or watch the sheep. Current estimates are that it will cost $300,000 to raise a child born in 2022 to the age of 17.

††††††††††† The Dobbs decision is a disaster, not just because it will prevent a few poor women from getting abortions or because a few will die from lack of access to needed medical care. It is a disaster because it is clearly a religious decision based on the personal beliefs of the justices. While Dobbs may be limited to abortion, however vague a standard that may be, the mindset that crafted it looks set to remain for decades, allowing personal beliefs to trump science and equity in public policy. Worst of all, it further undermines the public's confidence in the impartiality of the law and the Court.

††††††††††† When Lochner was overruled, the Justices were forced to concede that the Constitution does not endorse any specific economic philosophy like laisser faire. The Constitution is not supposed to endorse any religious philosophy either. Interpreting the Constitution as a sacred text is a recipe for disaster because reality is more complicated and incomprehensible than any philosophy.

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Contact: Joshua Leinsdorf


[1] The Guardian of Every Other Right: A Constitutional History of Property Rights by James w. Ely, Jr.


[2] I am indebted to Elie Mystal's book Allow Me To Retort for help with framing this argument.[2]