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A bad faith argument

Justice Sotomayor’s attempt to discredit a “religious view” on abortion


In this artist sketch, Justice Sonia Sotomayor (second from left) and the other justices listen to Mississippi Solicitor General Scott Stewart during oral arguments in Dobbs v. Jackson Women’s Health Organization on Dec. 1. Associated Press/Illustration by Dana Verkouteren

A bad faith argument
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Most legal experts agree that Roe v. Wade and Planned Parenthood v. Casey are on life support. Together, those two U.S. Supreme Court decisions sustain the abortion empire in America. But a case out of Mississippi threatens to pull the plug on both.

By design, Dobbs v. Jackson Women’s Health Organization presents a direct challenge to Roe and Casey. The question before the court is simple: Does the U.S. Constitution prohibit states from restricting abortion before fetal viability? Roe and Casey say yes. Restrictions prior to viability, which the court placed at 24 weeks, unduly burden women seeking abortions, according to the court. The Mississippi law, which protects unborn children from nearly all abortions after 15 weeks, says no. A state can protect unborn humans prior to viability. Herein lies the problem: The court cannot reasonably uphold a Mississippi law that protects the unborn after 15 weeks without striking Roe and Casey, which say you can’t protect these children until after 24 weeks. If the court strikes those cases, the alleged constitutional right to an abortion is no more.

That’s precisely the outcome pro-life advocates hope for and what pro-abortionists dread. Given what’s at stake, don’t expect everyone to fight fair. One way we saw an imbalance in the type of argument allowed before the high court was one justice’s delegitimization of a religious argument.

Consider Justice Sonia Sotomayor’s questioning of Mississippi Solicitor General Scott Stewart during oral arguments in the Dobbs case last month:

“How is your [state’s] interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Sotomayor’s “religion” objection to the pro-life argument parrots the most popular talking point from street-level abortion advocates. A Supreme Court justice ought to know better.

Calling an argument “religious” is a dodge, not a refutation.

First, arguments are either sound or unsound, valid or invalid. Calling an argument “religious” is a dodge, not a refutation. Pro-lifers argue it’s wrong to intentionally kill innocent human beings, and abortion does that, therefore, it’s wrong. If Sotomayor thinks she can refute that argument with evidence, pro-life advocates welcome the challenge. But it won’t do for her to dismiss it with a label.

Second, how does it follow that because people disagree on when life begins, there is no right answer? People once disagreed on slavery and women’s rights. Does that mean there was no truth to be known on those matters? Moreover, if disagreement means there are no right answers, Sotomayor’s own argument is refuted because pro-lifers disagree with it. The question of when life begins is not a theological question. It’s an empirical one, and the evidence from the science of embryology is clear: Justice Sotomayor didn’t just come from an embryo; she once was an embryo.

Third, the clear implication of Sotomayor’s question—that the Mississippi law wrongly imposes a religious view and thus is unconstitutional—is mistaken. Pro-life advocates aren’t imposing their views. Rather, we’re proposing them in the hope that we can persuade our fellow citizens to vote them into law. That’s how a constitutional republic like ours works, and that’s precisely what is happening in Mississippi. Pro-life advocates, working through their elected representatives, have a right to participate in their own government just like everyone else does. They’re not looking to establish a theocracy they impose on non-Christians, only a more just society for the weakest and most vulnerable members of the human family.

Fourth, it is no more religious to claim that unborn humans prior to viability have value and a right to life than to claim they don’t. Both claims answer the same exact question: What makes humans valuable in the first place? That philosophical (and theological) question has no neutral ground. Either you believe that every human being has an equal right to life, or you don’t. The pro-life view is that humans are intrinsically valuable in virtue of the kind of thing they are. The pro-abortion view is that humans have value only because of an acquired property like self-awareness or sentience. Notice that both positions—pro-life and pro-abortion—use philosophical reflection to answer the question: What makes humans valuable in the first place? Thus, if the pro-life view is disqualified for asking theological questions, so is the pro-abortion one.

Dismissing arguments with a phony appeal to religion is intellectually dishonest. Anyone who cares about the rule of law has one question regarding Dobbs: Does the Constitution forbid restricting abortion before viability? Justice Sotomayor should stick to that question rather than arguing in bad faith.


Scott Klusendorf

Scott Klusendorf is the founder and president of Life Training Institute, which was established in 2004 to challenge and equip pro-life advocates to persuasively defend their views in the public square.


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