I notice Geoff Stone's rather odd claim on the University of Chicago Faculty law blog that the result in the new partial birth abortion case, Gonzales v. Carhart, is at least partially explained by the majority justices' catholicism. Put aside the fact that we ought to be past trying to categorize people's legal beliefs by their religion. Let's also put aside the fact that, mysteriously enough, the same justices don't seem to stick to "catholicism" on other topics on which the church is equally committed (and that one of the great anti-Roe stalwarts, the former chief justice, wasn't Catholic. Could it be that he had some other basis for opposing Roe, one which the current majority shares?). If the five Gonzales justices were, in fact, Popish automatons, one would figure a completely different result in death penalty cases, for example. Or, even more pointedly, legal homosexuality. Let's not even get into the fact of Justice Thomas's consistent fight to restrain Congress's commerce clause power - I suppose one can dismiss the penultimate Catholic shibboleth's ( I assume Scalia is Stone's violator in chief) suggestion that the law was unconstitutional on those grounds as essentially meaningless in the context of Raich.

Rather, what's odd about Stone's claim is something he himself noted in his post ; in short, that:

[T]he prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortions.

Precisely. In other words, the simple fact is that the partial-birth abortion ban is more or less irrelevant to the church's interest in prohibiting abortion. Indeed, as church leaders immediately (and obviously) pointed out, both the law and the court's decision expressly countenance all sorts of other kinds of abortion, including the lethal injection of the fetus in utero, the subsequent sawing of it apart, and, in fact, the sawing of the fetus apart while alive (to whatever extent the reader believes that word to be appropriate). Gonzales, in other words, is basically inconsistent with even the vaguest idea of "Catholic" theology or doctrine in the way that Stone seems to understand it. In fact, as if to underline the point, Gonzales was written by the same man who helped to write Casey - the same Casey that sounded the death knell for catholic hopes of reversing Roe (Roe, of course, being a decision the "church" actually does care about). Are we to believe that Kennedy (the same Kennedy, again, who just recently established a constitutional right to private sex in sweeping, grandiose language) has undergone some sort of spontaneous religious conversion, and then decided to expose his new fundamentalism in a case with no significant consequence for his supposed ideology? This all seems like a lame way to expend one's fanatical bullet, if you ask me.

All this is especially odd when you realize that much simpler explanations exist. Kennedy thought that Casey and Roe allowed for some restrictions on constitutionally protected abortion, and thought that this case crossed that line. The other four justices, expressly appointed for their more conservative ideology, followed that conservative ideology in writing an opinion that limits a right that is more or less obviously not constitutionally based. Is that something to attack? Sure, if you don't like the conservative judicial philosophy. But is it a religiously based opinion? It just seems kind of unlikely.