Tolerance or Bigotry
Two years ago, I wrote a piece for this blog about my decision to have an abortion. It was the most difficult decision I’ve ever made, and the most difficult piece I’ve ever written. Abortion is a common procedure. An estimated one in three British women and one in four American women will have an abortion by the time they’re 45, yet most women who have terminated a pregnancy keep their decision secret, driven often by a sense of guilt and shame. I would not have shared the story of my own abortion but for the threat posed to abortion rights by the Trump administration’s nomination and ultimate confirmation of Supreme Court Justice Brett Kavanaugh, who had previously argued in a dissenting opinion in the DC Court of Appeals that a young woman did not have a right to ‘abortion on demand’, and that the majority had ignored the government’s ‘permissible interests in favouring foetal life, protecting the best interests of a minor, and refraining from facilitating abortion’.
As I type, members of the Senate Judiciary Committee are making their opening statements in the confirmation hearings of Trump’s third appointee to the US Supreme Court, Amy Coney Barrett. The Democratic senators are highlighting the threat to the Affordable Care Act if Barrett is confirmed, hammering home that the court is scheduled to hear Texas v. California on 10 November, a week after the presidential election. The case could invalidate the ACA, automatically removing the protections for patients with pre-existing medical conditions; the prohibitions on charging women more than men, and on life-time caps on reimbursement for medical bills; and the mandate to provide contraceptive coverage to women. Senator Patrick Leahy shared the stories of two of his constituents, both women, who had benefited from the ACA. Real women’s health and safety, he argued, would suffer from Barrett’s confirmation.
Neither Leahy nor any of his colleagues emphasised that real women’s health and safety would also be harmed by the overturning of Roe v. Wade were Barrett to be confirmed. Democratic senators made two lone references to reproductive rights: Richard Blumenthal highlighted the threat to ‘a woman’s right to decide when and how to have a family’ were Barrett to be confirmed, and Sheldon Whitehouse made a brief reference to the late Ruth Bader Ginsburg’s role in defending ‘women’s reproductive rights’ in her dissenting decision in Gonzales v. Carhart (2007). ‘Legal challenges to undue restrictions on abortion procedures,’ Ginsburg wrote, ‘do not seek to vindicate some generalised notion of privacy; rather, they centre on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.’
Abortion rights are women’s rights. And opinion polling shows that the majority of Americans support those rights, or at least support maintaining the right to abortion enshrined in Roe v. Wade. Yet Barrett has been unambiguous about her belief that the court overreached in Roe, putting those views in writing in 2006, 2013 and 2016. In recent weeks, the Trump administration has been coy about whether Barrett’s confirmation would lead to Roe being overturned. In the first presidential debate, Trump denied that Roe ‘was on the table’, and Pence claimed in the vice presidential debate that he could not presume to know how Barrett would rule in a case revisiting Roe. On the campaign trail in 2016, however, Trump asserted that his ‘judges will be pro-life’, and there is no reason to think Barrett would not make good on this pledge.
Why aren’t Democratic senators making more of Barrett’s views on reproductive rights? As with so much else in American politics, the answer lies in the country’s historically ambiguous relationship with religion. The US Constitution enshrines the separation of church and state, yet religion plays an outsize role in American politics. Any judicial decision Barrett may take on abortion would doubtless be framed in non-religious language, but it is clear her views are largely informed by her Catholicism. ‘The dogma lives loudly within you,’ the Democratic senator Diane Feinstein said when Barrett was up for confirmation to the Seventh Circuit Court of Appeals in 2017.
During their opening statements, the Republican members of the Judiciary Committee made much of the idea that, in questioning whether Barrett’s faith will affect her decisions, the Democrats are attacking ‘religious liberty’. Ben Sasse, Ted Cruz and Josh Hawley all hammered hard at this point, with Hawley suggesting that his Democratic colleagues were trying ‘to bring back the days of the religious test’ for Catholics. Joe Biden has fallen into the trap. ‘No one’s faith should be questioned,’ he said today. ‘Let’s keep our eye on the ball. This is about whether or not in one month Americans are going to lose their health insurance.’
Probing Barrett on whether she would seek to shape the laws that govern all Americans – Catholics, Protestants, Jews, Muslims, Hindus, atheists and everyone else – in accordance with her personal religious beliefs is not bigotry, it is tolerance. Biden is a practising Catholic. If elected, he would be only the second Catholic to sit in the Oval Office. In all probability, he would not have wanted his wife or daughters to have an abortion. Yet he has never sought to impose his personal faith and convictions on the women of America, because he respects the separation of church and state.
The Catholic Church opposes abortion, even in cases where the foetus is fatally ill, as Pope Francis reiterated last year. Yet he has also gone farther than any of his predecessors in extending forgiveness to those who have had an abortion. I am a Catholic. I talked at length with my priest as I struggled with the decision to terminate my pregnancy. I cried as I confessed my abortion, and asked for and received absolution after the fact. My faith was central to my personal struggle about my own reproductive choice. No part of me thinks that my religious beliefs should have any impact on another woman’s right to make her own reproductive decisions.