Accidental Blogger

In Carhart II, on Wednesday the U.S. Supreme Court for the first time since Roe v. Wade upheld an abortion-restrictive law which contained no exception for the health of the mother.  Justice Kennedy’s majority opinion is flatly indefensible; the "analysis" is pathetically dishonest (and maybe also incompetent), and the result is, of course, atrocious.  The possible good news?  In response to the Court’s signaling of its intention to shrink abortion rights in the post-O’Connor era (not to mention the inevitable overturning of the Roe line of cases with the addition of one new conservative Justice), there is a push in Congress to codify women’s choice.

For analysis and criticism of this decision, see Lyle Denniston here and here, Jill Filipovic here, Marty Lederman  here, Jack Balkin here and here, and even the notoriously conservative and anti-choice Michael Paulsen attacking the Court’s absurd mistreatment of precedent here.

And then check out Rick Garnett’s post at PrawfsBlawg, in which he expresses disappointment that commentators have suggested that it is more than just coincidence that the five anti-choice votes come from Catholics.  Now, I don’t ordinarily go after the blog posts of law professors–not even unabashed Christofascist Notre Dame professors who may or may not be visiting at Chicago–but seriously, Professor Garnett–Rick–can I call you Rick?–cry me a river you poor, oppressed, white, non-Mormon, Christian, affluent male.  (Incidentally, maybe it’s just because I’m from New England where most Christians are Catholics, or maybe it’s just because I’m not living in the 18th century, but I don’t think that Catholics are singled out in this country by people who will give Christians a pass–it’s a "supernatural thinking" thing, not an "allegiance to this particular branch of supernatural thinking which is no more or less absurd than any nearly identical but differently titled supernatural thinking" thing.)  Garnett writes:

It is, increasingly, thought to be enough to discredit an argument or position — any argument or position — merely to note that the person who makes it is a religious believer, and to write off any moral argument with which one disagrees as "religious."  (This practice, of course, does not run both ways:  arguments against torture, the death penalty, race discrimination, and income inequality are "secular"; arguments against partial-birth abortion or the creation of embryos for research are "religious.")  It appears, increasingly, that arguments whose trajectory is not in line with the standard liberal / autonomy / choice line are not only rejected, but declared not to be permissible arguments.

But Rick, arguments against abortion and stem cell research are religious arguments.  The arguments are made in secular terms, but the "baby murderer!" cry is based solidly in supernatural thinking.  Tell me, how many atheists strenuously object to the things to which you object?  I’ll get to the last sentence in the above paragraph later, in the context of a particularly revealing comment.

Following the jump: "words are meaningless! (when I want them to be)" and more.

And now, apparently, even words whose use suggests the embrace of certain premises are out of bounds.  In Justice Ginsburg’s dissent, she took the time to complain that there was something improper, and threatening, about the majority’s use of words like "abortion doctor" and "unborn child"; but, of course, the use of these words represents an argument.  To rule out the words is to rule out, as illegitimate, the argument they reflect.

Conclusory language = argumentation?  Hooray question begging!  Oh, wait, you’re saying they reflect unspoken arguments.  Namely, that abortion is bad, that physicians who perform abortions are not real doctors, and that fetuses are human beings/persons/babies–the argument doesn’t even need to be made in this scheme!  So if, say, I repeatedly refer to our friend Rick as a Christofascist, he can’t complain about my use of that language in the course of my analysis–which only silently incorporates the underlying argument that he is a Christofascist and the normative objection to Christofascism–because then he would be ruling out arguments, and not just rhetorical flourishes designed to score cheap points through the cultural work performed and the meaning conveyed by the use of that mere word.

Interestingly, in comments Garnett reaches a point which one would not expect a reputable scholar to endorse.  (If I had a way with words, I might call him a fringe lunatic, as Brian Leiter has notoriously described Justice Thomas.)

Matt, I am certainly familiar with the claim that it is wrong to coerce people through law on the basis of "certain contentious views about metaphysical or transcendental matters" that "they cannot reasonably be asked to submit to." In my view, the claim has little force, even in the abstract.

So in the main post, Garnett was worried that by merely noting a person’s religiosity, any illiberal argument  would be dismissed by ad hominem as an "impermissible argument," presumably because it impliedly rests on the assumption that it’s an attempt to force religion onto the rest of us.  But then he rejects, concretely and abstractly, the proposition that it is wrong to coerce the behavior of others based on religious beliefs!  Supernatural beliefs are, let me get this straight, a perfectly legitimate basis for the coercion of other human beings?  I just thought of another description, which again I cannot take credit for: "psychopath."  (Derived from the late Kurt Vonnegut’s description in A Man Without a Country of George W. Bush as a "PP," or psychopathic personality.)

What can we learn from all of this?  Abortion has a way of prompting irrationality and/or dishonesty from the anti-choice crowd.  And that papists gotta stick together, because the godless left is a powerful supermajority institution in this country which we all need to watch warily.