After Roe v. Wade, Hope for Life and a Nation’s Soul

A prematurely leaked U.S. Supreme Court draft may send a polarized nation to the brink of civil war, but Roe v. Wade is not the first precedent to be overturned.

May 11, 2022 by Fr. Gordon J. MacRae

KA-BOOM! For many months, the U.S. Supreme Court has been examining a case from the State of Mississippi. It is one of the most widely anticipated abortion rights cases in decades, and it could result in the termination of a federal constitutional right to abortion established in the 1973 decision in Roe v. Wade.

In early May, a draft opinion authored by Justice Samuel Alito was leaked to and published by Politico. It is the first time in history that a draft of a pending Supreme Court decision was leaked to the media before it made its way through the Court’s decision-making process. The leaked draft leaves a distinct impression that the Court is (or was) about to overturn Roe V. Wade. The leak was an earthquake for government, the Supreme Court, and advocacy groups on both sides of the abortion issue.

Chief Justice John Roberts immediately requested an investigation of the unprecedented leak. I hope that by the time this is posted, the perpetrator(s) and process through which it was leaked are exposed. Explosions of furor over this in Washington are not exaggerated. The integrity of justice, the Supreme Court, the Separation of Powers, and government itself are at stake.

And there was another, simultaneous explosion, a nuclear one with a mushroom cloud spreading across this divided nation. The leaked news that Roe v. Wade may now be overturned has created a tidal wave of protest outside the Supreme Court and in cities across the land. On the left, the partisan protests are taking an unfortunate tone of vile hostility toward the pro-life movement, toward politicians who have been in sympathy with it, and toward Catholics who have traditionally been a driving force behind the Right to Life.

We should be proud of our defense of life while also avoiding any rhetoric of “we won and you lost!” The only potential winners here are the unborn who may have a chance to live if this leaked document becomes our reality. That is still likely months away.

President Joe Biden, who ran for office on a pledge to unite this polarized nation, has stoked the raging fires by denouncing the Court and calling for abortion rights to now be encoded in federal law. He knows full well that this is highly unlikely in the current divided House and Senate so his rhetoric can only be interpreted as an effort to ratchet up dissent and chaos.

In 2006, as Senator Joe Biden he backed an amendment to overturn Roe. Two years later, he became Vice President in the Obama White House. I can only interpret his radical flip, and his current hostility to the Right to Life, as evidence of a widely held belief that someone else has been doing his thinking for him on this and other crucial issues facing Americans. This is not a good time for the United States to have a puppet presidency.

The leaked document does not represent a final position of the Court, but it appears to have been written for the majority opinion. Whether leaking it was an attempt at sabotage remains to be seen. But the text of Justice Alito’s majority decision draft gives much hope to the pro-life cause.

A Misguided Emphasis on Precedent

The leaked draft affirms that the Constitution makes no reference to abortion and that no such right is implicit in any of its provisions. The draft states that there is no history or tradition that protects abortion as a right with a Constitutional guarantee of due process. This mirrors the position of the late Justice Antonin Scalia who held that the only such right found in the Constitution is the one that the (7-2) majority Court in Roe invented and inserted there in 1973. The draft concludes that “Roe was egregiously wrong from the start, its reasoning exceptionally weak, and with damaging consequences.”

In defending Roe, a lot of ink and rhetoric have been spilled over a legal principle known as “Stare Decisis,” a Latin term literally meaning “to stand by things decided.” The legal principle compels a court to stand by precedents for matters in which the same legal points arise in litigation. You likely heard the term, “respect for precedent” a lot in the Senate hearings vetting recent nominees to the U.S. Supreme Court.

Without exception, the precedent case referred to in these hearings was the 1973 decision in Roe v. Wade. The ruling barred states from adopting restrictions on abortion before the third trimester which was the point at which the Court determined in 1973 to be the time of viability of life outside the womb. The scientific evidence no longer supports that determination.

The principle of “Stare Decisis” does not mean that a precedent is set in stone with no avenue for reconsideration just because it is a precedent. There have been ten cases in U.S. Supreme Court history that have widely become known as “Landmark Precedents.” One of them is Roe v. Wade which had the effect of bitterly dividing the nation into two warring camps thus giving birth to the Pro-life Movement. Each year since 1975, two years after Roe, hundreds of thousands of U.S. citizens descend upon Washington for the National March for Life.

Another precedent also bitterly divided the nation setting in motion the events which led to the Civil War. That case was Scott v. Sanford, an 1857 landmark decision and the one that has been most compared by judicial scholars to the flawed judgment in Roe v. Wade.

In 1846, Dred Scott, a slave living in St. Louis, Missouri, sued contending that he, his wife, Harriet, and their two daughters were legally entitled to their freedom because their “owner” brought them to Missouri which was a free state. After being tried in Missouri state courts and in federal circuit court, the case went before the U.S. Supreme Court in 1856. In 1857, the Court issued its 7-2 split decision rejecting Dred Scott’s claims.

Writing for the Supreme Court majority, Chief Justice Roger Taney, like Joe Biden a self-identified Rosary-carrying Catholic, ruled that “blacks, even when free, could never be citizens of the United States” with rights to sue in federal courts. In his written decision — one that no person of just mind and well informed conscience could hold today — Justice Taney concluded that “blacks are so far inferior that they had no rights which the white man was bound to respect.”

The Taney decision for the Court majority — which, like Roe v. Wade, was also split 7-2 — also determined that the portion of the Missouri Compromise of 1820 that banned slavery in territories north and west of the state of Missouri was unconstitutional. The outcome of Dred Scott v. Sanford led directly to the Civil War.

To claim today that “precedent” alone should be the determining factor in such a case is tantamount to stoking the embers of that war. On January 1, 1863, President Abraham Lincoln’s Emancipation Proclamation ended slavery and paved the way for the Fourteenth Amendment which recognized the rights to life and liberty for all Americans. Those who would cling to “Stare Decisis” as an impenetrable judicial boundary are left today in a misinformed judicial quandary.

As the final fate of Roe v. Wade looms, I urge readers to arm themselves with some truths beyond the hysteria of protests covered 24/7 by cable news. I would like to ask you to read at least one or more of the posts linked at the end of this one, to share them, and to pray ardently for the cause of life and the integrity of this nation.

Be prepared to duck because a political storm is rising. There is on its horizon a distinct impression that the integrity of America and the cause of life are not at all beyond hope.

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Please also read and share:

Joe Biden, Cardinal McCarrick and the Betrayal of Life

Biden and the Bishops: Communion and the Care of a Soul

The Last Full Measure of Devotion: Civil Rights and the Right to Life

Joe Biden, Cardinal McCarrick and the Betrayal of Life

Joe Biden is only the fourth Catholic presidential nominee in U.S. history but his pro-abortion stance leaves him in broken communion with his profession of faith.

Millions of American Catholics who uphold the Right to Life as a foundational human right in accord with Catholic teaching and the Bill of Rights were disappointed in recent weeks. Supreme Court Chief Justice John Roberts sided with the four liberal justices in a matter of life and death. The question before the Court was whether a Louisiana law requiring abortion practitioners to have admitting privileges at a local hospital was unconstitutional.

In the split (5-4) decision in favor of abortion providers, Chief Justice Roberts voted with the majority in a matter from which he had earlier dissented. This may not be the setback some in the pro-life movement have feared. The Court’s ruling in support of the precedent set in Planned Parenthood v. Casey did not address the precedent itself which inserted into the Constitution a right to abortion. This is a distinction that I wrote about early this year in “March for Life: A New Great Awakening.”

The timing of publishing this decision — in the final months of a highly charged presidential battle for the soul of America — reminded me of something that unfolded in these pages during the 2016 election. At that time, I wrote a post entitled “Wikileaks Found Catholics in the Basket of Deplorables.”

Among a vast media leak from the Hillary Clinton campaign back then was a set of email exchanges between Clinton campaign manager John Podesta and some progressive U.S. Catholics. The leaks exposed a plan to recreate U.S. Catholicism into an entity more appealing to the Democratic Party and its ever descending slide toward the left.

The central tenet of that plan was to move American Catholics away from any identification as a “Roman” Catholic Church into a state of mere symbolic authority from Rome. The result would be something more akin to the U.S. Episcopal church and its open embrace of identity politics, reproductive rights, same-sex marriage, transgender ideology, and a much-weakened moral voice in the public square.

Climate change, open borders, and a global identity were to be the new moral imperatives. Abortion without limits would quietly fall without challenge into the politically correct category of “settled law.” It is easy for the living, while descending toward the left, to compartmentalize their consciences and deny a right to life to the most vulnerable among us.

Back in 2016, Pope Francis raised an alarm among conservative Catholics and the pro-life mission when he was quoted in the media as suggesting that the Church cannot speak only about abortion. The left arm in Catholicism seized upon that, but since then Pope Francis has offered some clarity. You may not know about it because the mainstream media only hypes his more trite sayings such as “Who am I to judge?”

On the matter of life, however, Francis has been as unequivocal as his predecessors, articulating clearly his support for and continuance of the pro-life emphasis of Saint John Paul II and Pope Benedict XVI. Pope Francis affirms that the foundational human right is the right to life. He has stated that the right to life and transgender ideology are the most pressing moral issues of our time. To say that the Church should not speak only of these issues does not at all suggest what the 2016 Clinton and Podesta agenda suggested: that we just set them aside and not speak of them at all.

Joe Biden’s Catholic Communion

Among the moral issues of our time, Pope Francis agrees with the U.S. Bishops that the right to life is the most fundamental human right in Catholic moral teaching. This places Democratic nominee Joe Biden far outside the moral life and teaching of his professed faith. In response to the Covid-19 pandemic lockdown, Joe Biden said from his basement campaign forum:

“We need to ensure that women have access to all health services during this crisis. Abortion is an essential health care service.”

Joe Biden is only the fourth Catholic in U.S. history to become the presidential nominee of a major political party. All four have been Democrats. The first was New York Governor Alfred Smith who was easily defeated by Republican Herbert Hoover in 1928. Smith’s Catholic faith was widely seen as a cause of his defeat. The anti-Catholic political ice was not broken again until 1960 when John F. Kennedy became the first Catholic U.S. President.

Neither Al Smith nor President Kennedy faced a pro-life question because Planned Parenthood v. Casey had not yet happened. The matter of Catholic identity and abortion first arose in 2004 when Massachusetts Senator John Kerry became the nation’s third Catholic nominee for president exposing a wide contradiction between his professed Catholic faith and his public promotion of abortion rights.

Senator Kerry lost the election when President George W. Bush won a second term. Throughout his campaign, Kerry openly defied Church teaching on abortion. For that he was endorsed by the Planned Parenthood Action Fund. His open defiance launched a debate among bishops about responding to pro-abortion Catholic politicians who receive the Eucharist, the ultimate sign of communion with their faith.

The argument was based on Canon 915 in the Code of Canon Law which holds that those who “obstinately persevere in manifest grave sin are not to be admitted to Holy Communion.” For an analysis of how this has applied to Catholic political candidates, I rely on an excellent account in the National Catholic Register by Lauretta Brown: “Biden and the U.S. Bishops” (May 24, 2020).

The matter of promoting abortion while pretending to be Catholic has been raised anew in the candidacy of former Vice President Joe Biden. As a Delaware Senator and vice-presidential nominee on the ticket with Barack Obama in 2008, Joe Biden declared on Meet the Press that he “was prepared as a matter of faith to accept that life begins at the moment of conception.” He qualified his belief, however, by stating that he would not impose that belief by promoting laws that reflect it.

Archbishop Charles Chaput and Bishop James Conley published a rebuttal, stating that the beginning of life is a matter not only of faith but of scientific truth. Embracing objective truth has nothing to do with imposing it on anyone. The two bishops wrote:

“If, as Senator Biden said, ‘I am prepared as a matter of faith to accept that life begins at the moment of conception,’ then he is not merely wrong about the science of new life; he also fails to defend the innocent life he already knows is there.”

Mr. Biden was also criticized by Bishop Francis Malooly during the 2008 presidential campaign for his public misrepresentation of Church teaching on abortion. And he was criticized by Bishop John Ricard for receiving Communion during a campaign trip to Florida. This raised anew the debate among bishops about Communion for Catholic politicians who promote abortion.

Now Comes Cardinal Theodore McCarrick — Again!

Cardinal Raymond Burke, then Archbishop of St. Louis, was one of the first bishops to state in 2004 that he would deny Communion to Catholic candidate John Kerry due to his public stance on abortion. Many bishops joined him in support of that view. In June of 2004, the U.S. Bishops Conference released a document entitled “Catholics in Political Life.” It communicated the U.S. Bishops’ unqualified “commitment to the legal protection of life from the moment of conception until natural death.”

Previous to the publication of that document, however, Cardinal Theodore McCarrick, then Archbishop of Washington DC, was appointed by the bishops to chair a USCCB Task Force on Catholic Bishops and Catholic Politicians. McCarrick quietly lobbied other bishops to oppose denying Communion to pro-abortion politicians. There was significant foul play in McCarrick’s lobbying effort.

In 2004, The USCCB Task Force received a letter from Cardinal Joseph Ratzinger, then Prefect of the Congregation for the Doctrine of the Faith. This was a year before the death of Pope John Paul II and Cardinal Ratzinger’s election at the Conclave of 2005. As Task Force Chair, McCarrick received the letter from Cardinal Ratzinger on behalf of the other members. The future Pope Benedict’s letter was entitled, “Worthiness to Receive Communion: General Principles.” Here is one of its major points:

“[R]egarding the grave sin of abortion or euthanasia, when a person’s formal cooperation becomes manifest (understood in the case of a Catholic politician as his consistently campaigning and voting for permissive abortion and euthanasia laws) his pastor should instruct the person about the Church’s teaching and tell him not to present himself for Communion.”

However, in his own report Cardinal McCarrick misrepresented the Ratzinger letter and manipulated the Task Force findings and recommendations to the U.S. Bishops in 2004. He instead reported to the bishops that it was the Task Force Commission’s conclusion that denial of Holy Communion to Catholic politicians could further divide our Church and could have serious unintended consequences.” The report concluded:

“In light of these and other concerns, the Task Force urges for the most part renewed efforts and persuasion, not penalties.”

An official who assisted Cardinal Ratzinger in the writing of that letter tells me today that it carefully referenced Canon 915, instructing that those who obstinately persevere in manifest grave sin are not to be admitted to Holy Communion.

In revealing his Task Force Report to the U.S. bishops in 2004, Cardinal McCarrick attempted to hide the Cardinal-Prefect’s letter and his misrepresentation of it. The letter from Cardinal Ratzinger was later leaked by an unknown source exposing the manipulation, but only after the bishops accepted McCarrick’s more accommodating view — that pro-abortion politicians should be instructed but not penalized.

The Pro-Life Sensus Fidelium

What those “unintended consequences” cited by Cardinal McCarrick were can only be imagined. However, hindsight sheds some light on them. There are some who viewed McCarrick in the same way he apparently viewed himself — as a power-broker in the politics of both Church and state.

The full report on Theodore McCarrick’s rise and fall will likely soon be released by the Holy See. It will be interesting to see whether and how it reflects this, and reflects his manipulation of the U.S. Bishops’ collective approach to politicians who claim to be Catholic while dissenting with impunity from Catholic moral teaching on something as fundamental as the Right to Life.

In 2020, the U.S. Bishops formulated a new letter for Catholic voters that specifically cited the priority of life and abortion as “preeminent” priorities. It adopted the language of Saint John Paul II and Pope Benedict XVI with clarity about the central importance of life issues in the current political climate.

Meanwhile, Candidate Joe Biden continues to espouse his Catholic identity while moving even further left in his promotion of abortion rights up to and including late-term abortion. In recent months he has withdrawn his four decades of support for the Hyde Amendment, a 1974 bilateral agreement between parties that protected U.S. taxpayers from violating their consciences by government application of their tax dollars for abortions.

There are few steps left to take for a Catholic candidate who openly rejects the Right to Life and other tenets of Catholic moral teaching, but Candidate Joe Biden has discovered them. He has officiated at a same-sex “marriage” and promotes the full spectrum of LGBTQ+ ideology and identity politics. Most recently Mr. Biden has called for codifying the right to abortion in federal law. After a recent Supreme Court decision on religious liberty, he vowed to roll back rights extended to the Little Sisters of the Poor concerning forced contraception coverage.

Some courageous bishops would deny him Communion for the simple but grave fact that he is no longer in communion with his faith. Other pro-life Catholics have asked for his excommunication.

Canon Law limits such a step to those who actively perform or otherwise cause abortion.

Joe Biden’s unabashedly pro-abortion rhetoric and promotion may collectively rise to that standard. In such a case, the Sensus Fidelium may call for something as decisive as excommunication. It would not be a penalty, but a discipline, an invitation to tend to the state, not only of Mr. Biden’s politics, but of his soul.

And how utterly strange and unacceptable that the current Archbishop of Washington, DC, while remaining silent on the Democratic nominee’s pro-abortion politics, chose this moment for a public repudiation of the only major party candidate who has been unequivocal in his support for the Right to Life, his promotion of religious liberty, and his efforts to appoint pro-life judges to the federal judiciary.

I can only ask the same question that has been on the minds of many faithful Catholics in recent weeks:

What in Hell is going on here?

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U.S. Cardinal Theodore E. McCarrick of Washington and Bishop Wilton D. Gregory, president of the U.S. Conference of Catholic Bishops, look on during a news conference at the Vatican April 24, 2002. (CNS photo/Vincenzo Pinto, Reuters)