In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called "partial birth abortions" (properly described as "intact dilation and evacuation" or "intact D & E") despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.
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What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is "immoral" and may be prohibited even without a clear statutory exception to protect the health of the woman.
By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman "to determine her life's course" is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith.
In 1972-73, I had the privilege of serving as a law clerk to Justice William Brennan, then the Court's only Catholic justice. It was in that year the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayers, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.
As the Court observed fifteen years ago, "Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.