On a recent episode of Amicus, Dahlia Lithwick spoke with Katherine Franke, director of the Center for Gender and Sexuality Law at Columbia University and faculty director of the Law, Rights, and Religion Project at Columbia Law School, about what’s at stake in the Supreme Court’s new abortion case, Dobbs v. Jackson Women’s Health. The two discussed how a secular framework is being applied to religious argument, the Roberts court’s highest priority, and what will ensue if this case leads to the toppling of Roe v. Wade. This conversation has been edited and condensed for clarity.
Dahlia Lithwick: I want to start with the obvious but somehow unspoken observation that the Dobbs argument we heard recently is about gender and abortion—and also religion. But we only talk about gender and abortion—and never religion. We have Justice Samuel Alito leaping in to ask, “Are there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception, or at some point other than viability?” So the argument becomes: There are secular philosophers and bioethicists who take this position. This isn’t about faith at all.
For an awful lot of Americans, the debate about Roe and Planned Parenthood v. Casey is a religious conversation most of the time. It would be constitutionally intolerable if this were a religious conversation, so the arguers have to swath it in secular language. I’m wondering if you agree that we are talking about one thing, and we’re not talking about the other thing that is really the thing we should be talking about.
Katherine Franke: Well, the thing we should have been talking about was women’s lives, which was painfully absent in so many ways, other than occasional remarks from Justice Sonia Sotomayor. But by and large, the arguments from every other member of the court—and certainly from the Mississippi attorney general—ignored that this is a vital issue for women. Why do women get pregnant? Why do people need abortions? That’s the first thing that was absent and that we need to talk more. The other thing is religion: We can now be at a point in 2021, with a decision coming out in the summer of 2022, where it is the official policy of the United States Supreme Court—and more than a majority of state legislatures—that life begins at a certain time. That is absolutely a religious decision, but one that is now passing as secular in nature.
I find that so troubling when it’s held up against the ways in which explicitly religious values are being used as a cudgel to undermine probably the most fundamental public value, which is public health. The Dobbs case comes on the heels of the COVID cases last summer, where governors across the country were scrambling to deal with this horrendous pandemic, imposing reasonable limitations on the ways in which we all operated normally. Religious organizations on the right objected to being held to account for the same kinds of burdens all the rest of us were facing. Those cases went to the Supreme Court, and the courts used them to recognize that religious liberty is a more important value than public health. So between those COVID cases and what we see in Dobbs, I am prepared to say the Supreme Court is the greatest threat to public health that we have present in the United States during a deadly pandemic.
There’s a two-tier way that this court analyzes rights—that religious liberty and property rights are at the top, and a lot of other things, including public health and gender issues and immigrants’ rights, are down at the bottom. This is beginning to be a referendum on what the majority of the court deems an emergency.
What this court is doing is explicitly tiering constitutional rights. Part of how they’re doing that is by saying, When we look at the text to the Constitution, we don’t see the word abortion, we don’t see the word privacy, we don’t see the word gay, but we do see the word religion, and we do see the words gun and militia. There are top-tier rights that get priority treatment, religious liberty being the most important it seems. I think gun rights are probably going to be right up there with it, once the court issues the gun case decision in the spring or the summer. And then other rights are second-tier rights, which can be respected when they don’t come in conflict with other top-tier rights. I mean, I hope that’s where we end up, although after the arguments, it may be that they don’t exist at all.
I think that’s absolutely right. Justices Gorsuch, Alito, Thomas, and Kavanaugh to some degree have been ringing this bell that we are in the midst of a constitutional emergency in terms of threats to the rights basically of certain Christians. The way they have pulled this off is worthy of note. When the Framers wrote the Bill of Rights and additional amendments to the Constitution—in which they crafted limits on state power over rights to free speech, religious liberty, equal protection, rights to bear guns, rights to counsel in criminal trials—they understood those rights as bearing a complex relationship to one another, and that they had to be balanced and managed in a kind of synergistic ecology. No one of them was any more important than any other. In a particular court case, one could be seen as more important or, at least, might win that day, but the others would be able to come back and fight another day after that.
If you think about same-sex marriage—the Obergefell decision, Lawrence v. Texas—those were cases in which there wasn’t a conflict with another right. But when those rights come into conflict with these top-tier rights, religious liberty being most important, then they have to yield. This is a radical new way to think about what it means to be a people governed by limits on government: that some people enjoy greater freedom and equality than others do.
Mississippi Solicitor General Scott Stewart told the justices that Roe and Casey “haunt” our country and “poison” the law. Then he said that Roe and Casey’s core holdings, according to the courts, are that “people can protect an unborn girl’s life when she just barely can survive outside the womb, but not any earlier, when she needs a little more help.” I’m just wondering, rhetorically, what that move is—to start talking about Roe and Casey as being about an unborn girl. That’s not actually what those cases are. It again seems like it’s putting this deeply faith-based spin and then leaving it there for the court to object to—but nobody objects to the unborn little girl.
It’s a faith-based spin, but it’s also a kind of patriarchal paternalism. The other part of Casey is the court making up this myth that there are many women who have abortions who come later to regret them, and so for that reason, it’s good that various states actually impose a kind of supervision on that decision, and then decide what kind of information you might need about a waiting period or fetal pain.
I think this is just the next step in that process of, “Here’s the state helping those little innocent future girls just as the state was there to help those already-born girls who were going to make a decision that they would later regret.” There are so many things offensive about that, but one of them is that Roe v. Wade was decided on the idea of the integrity of a person’s ability to make a decision about something as important as a pregnancy with their doctor. We often frame it as a privacy case, but it’s also a liberty case. The woman or pregnant person is an agent in Roe whose rights are protected up to a certain point. By the time we get to Casey, the pregnant person is a potentially irrational vessel for a future person, and really needs the paternalistic guidance of the state in order to make a decision she might later regret. So I think that language about protecting future girls—the seeds were already in Casey.
I know it didn’t escape your attention that Mississippi Solicitor General Scott Stewart was the guy who famously defended the Trump administration policy that wouldn’t have allowed a pregnant migrant teen out of a shelter even when the government was not going to pay for her abortion. She was not going to be transported by the government. At that time his argument was that the government could not facilitate an abortion, that to merely open the door to the shelter in which this migrant teen was being held would be facilitation—which, again, strikes me as a purely theological claim. Tell me if I’m overreading it.
This goes back to where we started: that religion is always already on the scene, even in spaces we wouldn’t understand as religious. I think part of the underlying problem here is that starting in the Reagan era, with a shrinking public sphere and government, what we also saw was almost an evaporation of the idea of a public morality. Prior to Reagan, we had these deep ideas about justice. Even during the LBJ period, we created a social welfare system that was about taking care of one another as a public responsibility, and then a civil rights infrastructure. These were public projects that people felt collectively committed to. That has all withered, and we have delegated to the private sector—largely religious or faith-based organizations—the job of thinking morally, and now all the government is there for, all the public sector is there for, is a coordination function.
When you have the thick morality of religion up against a thin administrative state that doesn’t have any commitment to a good society, the public sector will always lose. I think that’s why we lost the COVID court cases: Religion is so much more important than whatever kind of collective morality we might be able to muster around protecting public health. Religion has captured so much of what we even might think of as secular public health values.
Can you talk briefly about the other side of the coin? Because I suspect you get this question as often as I do, which is, “Hey, Katherine, my religion says I’m actually allowed to have an abortion up to and including the viability line if it’s a threat to my health.” Or, “My religion says that in cases of rape and incest, abortion is absolutely allowed.” Why is the conversation so profoundly asymmetrical that we don’t even hear religious liberty claims from people who don’t want to be constrained by six-week or 15-week bans?
You’re absolutely right. There are many people of faith, many faith traditions, and many health care providers of faith for whom providing the full spectrum of reproductive health care is consonant with their faith, if not determined by it. Generally, media coverage of religious liberty is framed around the religious right. But what’s really interesting about the pre-Roe period is that there was a robust clergy consultation service that helped facilitate abortions. There were Jews, Christians, Muslims, multidenominational groups of faith leaders committed to helping get access to abortion for whoever needed it as an article of their faith. That withered somewhat once abortion became legal because that wasn’t needed as much.
There is a long tradition in this country of faith-based activists, health care providers, and others advocating for the full range of reproductive health care. I will share with you confidentially, and your listeners, that we are working on reinvigorating lawsuits challenging bills like SB8 with religious liberty claims and reinvigorating the clergy consultation service. The right doesn’t get to own religion, and it certainly shouldn’t when it comes to the law.
There are other church-and-state cases barreling toward the court. I wonder if you could talk for a minute about what folks should be looking out for in the world of religious liberty in collision with civil rights.
I think it’s important for journalists and other people who are reading the court carefully to pay attention to the degree to which the court is engaged in storytelling. When it decides these religious liberty cases, it does so by telling a very rich story about the history of the United States: the fundamental importance of religious persecution at the founding, how religious liberty was a fundamental value from the founding onward, and how virtuous faith-based people are. By contrast, when, say, gay people come to the court seeking equality, as was the case in the last term, you get sterile, logical, boring, technical reasoning. There’s no rich story of a history of equality, or the history of persecution of lesbians or gay men or queer people or trans people.
I would expect this dynamic in the abortion cases. We won’t hear a story about why it is that some people are faced with a decision to terminate a pregnancy. Instead, we will hear a different kind of story about the care of state legislatures for women’s health and their care for these future girls. These are signals of what the court cares about, in terms of what storytelling it does and what kind of reasoning it deploys.
I also think what comes next depends a little bit on whether the court goes big or goes small in this decision. When they hand down the decision in Dobbs, and if it’s a sweeping Clarence Thomas sort of opinion where SCOTUS basically wipes abortion rights from the Constitution, the Alliance Defending Freedom will have a complaint filed the next day challenging Obergefell. That side is ready, and it’s well-resourced with smart lawyers. Our side is never that ready. The other side is teeing up, the next round of cases that will expand and build on whatever it is the court decides in Dobbs.
The day that decision comes down, more than half the states have statutes that will spring into action rendering abortion a crime. The pro-choice movement will have to move into our own form of action, of helping move people around the country from states that are conscripting women into forced parenthood to states that are not doing so. The activism will be in the streets for sure, but it won’t be enough, unfortunately.