Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.
In Spanish bullfighting, before the bull faces off against the sword-wielding torero, he is speared with lances by horse-mounted picadores and stabbed with banderillas. In the final stage of the bullfight, the severely bloodied bull remains defiant and confident that he still has a chance against the torero. But while a bull might occasionally succeed in goring an unlucky matador, the ultimate outcome of the bullfight is predetermined. The bull will inevitably leave the match as rabo de toro. It’s not a fair fight.
So too for Catholics and other proponents of the common good under contemporary U.S. constitutional jurisprudence. Time and time again, we put our hopes in vindicating the rights of the unborn, natural marriage, and the rights of the Church by advancing clever arguments within the scope of the Supreme Court’s purportedly neutral liberal procedural standards. While our opponents solemnly invoke the merits of the secular state, we sheepishly try to explain that our religious symbols aren’t actually religious at all. While the liberals invoke equality and dignity, we are caught on our back foot trying to explain why an institution obvious to all peoples throughout all of history is “not irrational.” Most recently, in today’s decision, June Medical Services v. Russo, the four-Justice plurality focused on the burden imposed on the supposed “right” to abortion, while we were forced to explain that there were neutral reasons for imposing restrictions on abortionists (i.e. reasons that have nothing to do with the fact that they are committing abortions). The goodness of abortion was assumed. While the Supreme Court gave pro-lifers an opportunity to be heard, defenders of the unborn had to foreswear any openly pro-life arguments as the price of admission. Given this dynamic, it’s not surprising that we lose.
There are many good lawyers doing their best to advance the common good within the skewed strictures imposed by the Supreme Court. They should be applauded. But as long as these falsely “neutral” standards remain, we will keep losing. Today’s latest defeat in June Medical should strengthen our resolve to reject the inevitable immolation that awaits us in the arena of liberal neutrality and, instead, consider how we can advance the common good on our own terms.
Yves Casertano
