Defending the Vulnerable Requires More Than a New Supreme Court Justice

Last week, Freedom Road (a justice-oriented consulting group) released a statement calling for a “pause” on the culture war. Occasioned by the nomination of Brett Kavanaugh to the Supreme Court, it zeroes in on the problem of abortion and poverty and calls on evangelical women in particular to advocate for a “moderate independent justice” to replace Anthony Kennedy.

It asserts the primacy of anti-poverty efforts in reducing abortion, perhaps best summarized by the final statement from Peggy Crane:

“As a follower of Jesus and as a lawyer, I am deeply concerned about the appointment of a justice to take the place of Anthony Kennedy on the United States Supreme Court.  I believe that our call as believers is to love and welcome the poor, the orphan, the immigrant, and other marginalized people. Unfortunately, over my 17 years of practice I have watched conservative justices, supported by conservative, evangelical voters, dismantle laws intended to protect those very individuals whom Jesus was most concerned for, and uphold laws and orders that disadvantage – and even keep out – those same people. I have watched as many believers have encouraged these results because they believe overturning Roe v. Wade is the most important thing the Court could do – even though data show a reduction in poverty is the only effective way to minimize abortions. Thus, many evangelicals have supported a strategy that ultimately will lead to an increase in abortions because of the destruction of a safety net for poor and marginalized people.

The Supreme Court should not be a political body used as a weapon in the current culture war happening in the United States. Instead the Supreme Court should be an objective, unbiased, moderate body that ensures the equal protection of all Americans.  The only way to ensure this protection is to appoint a moderate, centrist judge to take Justice Kennedy‘s seat. I urge the Senate to refuse to confirm any justice who does not meet this criteria.”

The press release included statements from a number of evangelical women and several other notable evangelical leaders, including many that I’ve looked up to and learned from for a long time. It is thus with great trepidation that I register my concerns with this statement and the reasoning behind it. I agree with many of their concerns about the nature of the Supreme Court, the degrading nature of the culture war, and the urgent requirements of justice and righteousness in our governance, and I want to see these concerns parlayed into meaningful political and social change. In many ways, “pressing pause on the culture war” and calling for a more “moderate independent justice” is not radical enough.

Abortion and Economics

A great deal of this statement’s force hinges on the argument that reducing poverty necessarily reduces abortions. Unspecified “data” is cited several times for this claim in several quotes, but it is not clear what data is being referred to. Poor women in America are disproportionately more likely to have abortions and have come to make up a greater share of women who have abortions over the last few years, but that does not support the claim that “a reduction in poverty is the only way to minimize abortions.” Abortion has declined precipitously in recent decades—but it is difficult to tell to what degree that can be attributable to changes in poverty in America (which has fluctuated over the same time period), increase in the use of more effective contraceptive methods (which are probably also partially responsible for the decrease in the teen birth rate over the same period), or an increase in various state-level restrictions on abortion (which have increased through a variety of legal and political strategies). The most comprehensive recent study on the subject mentions expansion of healthcare access through the Affordable Care Act, not poverty, as an important factor.

Among other developed nations, it’s unclear where the correlation between abortion, law, and poverty lies. It is worth noting, for example, that most European nations only permit abortion on demand up to 12 weeks and even Sweden, with its generous welfare state, has a very high abortion rate (25.35 per 1000 women versus America’s 12.1 per 1000 women). Even the very pro-choice Katha Pollitt disputes this argument. Furthermore, places like Iceland have nearly eliminated Down Syndrome from among their population through abortion, thus putting the lie to the idea that a better model of state support will ensure that these children will be welcomed in life. Even if it were a sure thing that reducing poverty necessarily reduced abortion, that would still leave hundreds of thousands of babies aborted by middle-class or upper-class women and babies who were aborted because of some real or suspected medical abnormality in the lurch. Some laws are necessary to prevent abortions and protect human life.

While I suspect that reducing poverty in America will indeed reduce abortion, that is neither a particularly strong argument alone for reducing poverty nor an argument against overturning Roe v. Wade. Reducing poverty in America would also presumably improve the rate at which we incarcerate people, but we would never say that criminal justice reform should be tabled in favor of exclusively pursuing poverty reduction.

Rather, as we seek to pursue a common good for all, we want to argue for reducing poverty or expanding healthcare access on their own merits, and presume that people who are more healthy and flourishing are able to make more responsible decisions. If abortion is a demonic system that makes people believe that they must kill another human being in order to have a better existence, then throwing a few more dollars at the problem is not enough. We have a moral responsibility to address the problem holistically—which includes the law.

Prudence and Jurisprudence

The pro-life obsession with overturning Roe v. Wade is indeed something of a myopia. It is comparable, I think, to the recent enthusiasm for abolishing Immigrations, Customs, and Enforcement—a legal step that is far from comprehensive, but necessary for the overall project to succeed and radical enough in its symbolism to represent a potent change. It is difficult to know what exactly will happen if it is overturned, but the most likely scenario over the next 10-15 years is simply one where progressive states where many abortions already happen keep abortion legal, conservative states ban it completely, and a few in-between states keep on with the status quo present now.

Any further fortune-telling on the matter is merely speculation. However, if a more conservative justice is appointed to the Supreme Court and Roe v. Wade is overturned, the last argument left for voting Republican on a federal level is gone for conservative evangelicals. There’s no need to hold one’s nose and vote for whatever crony capitalist, warmonger, or dog-whistle virtuoso crawls out of the swamp and promises to cut taxes. Congress would have the same likelihood of passing any further legislation on abortion as it has over the last several decades, and a healthy federalism might have a chance to flourish—thus freeing the Supreme Court from its arbitrary role “as a weapon in the current culture war.” If we don’t want the Supreme Court to be the focal point of American political squabbles, it is hard to imagine that a “moderate independent justice” like Anthony Kennedy (who voted in favor of Trump’s travel ban!) would do the trick.

Jake wrote a piece against the culture war a few weeks ago that is worth revisiting in light of Freedom Road’s statement:

Regrettably, the culture wars that we have spent much of the past 35 years waging have tended to force people toward becoming ideologues. Conservative writers who were once interesting have become boring and tedious as their #OwnTheLibs mentality takes hold of their mind. Genuinely smart left wing writers lose all sense of proportion when it comes to talking carefully about religious conservatives.

[…] Thus the culture war traps us in an endless cycle of tedious and pointless debate, as the left advances an agenda detached from any sort of positively defined telos and the right simply defines its agenda as “maintaining whatever status quo symbol is under attack this week.” The possibilities of creativity, of expressing an idea independent of the culture war script, or of showing the world a still better way are all closed off from the start.

“Pressing pause on the culture war” sounds like it’s an idea independent of the culture war script, and calling for Christians to fast and listen to those affected by various policies being discussed is an unqualified good.

However, the call for a “moderate independent justice” tacks right along with the unending need for culture-war conflict, for such a justice would presumably act as Anthony Kennedy did and continue to hold the two poles of jurisprudence in tension, continually encouraging the scorched-earth thinking that dominates our political imagination. It is foolhardy to expect that moderate centrism will truly defend the rights of people of color and restore our body politic to health. We would never dare to say that we ought to “press pause” on immigration or healthcare reform if we thought lives were at stake; why should abortion be any different?

Culture war is inevitable as long as there are sharply disparate ideals of what it means to be human and to flourish; if a culture that disrespects human life in the womb or on the border has power, then it is worth fighting for that life. Thus, it is perfectly legitimate and good to raise real concerns about the issues of racial justice or disparate impact that might be raised by a more conservative appointment like Brett Kavanaugh; and conservatives who celebrate his nomination while ignoring these potential ramifications will only harm their own reputations and movements in the long term. To do so requires making arguments for the common good that Freedom Road’s statement calls for, and while this is undoubtedly more complex and difficult, it is also more effective and good in the long-term.

Changing the culture war mentality and breaking the mold of evangelical women as single-issue voters—both very worthwhile goals that Freedom Road aspires towards—means breaking the hold that moderation and independence have on our political imagination. It also means that we can transcend the idea that advocating for civil rights or poverty reduction can only come if we surrender on the issue of legal restrictions for abortion. If we’re going to be making statements in this era, let’s put some teeth on ‘em. What if we were wild-eyed and hopeful enough for extremist politicians and judges who believed in the value of all life? What if we called for a grand political bargain and demanded that Roe v. Wade be overturned alongside enacting Medicare for All? What if we genuinely believed that the state can provide material sustenance to all its citizens while protecting the most vulnerable persons among us?

Love and Politics

There can be no doubt that abortion is not merely a matter of economics or law. While many people argue for abortion based on making it available in edge cases (e.g. protecting the life of the mother, which ought to be preserved in any legislation banning elective abortion), the most passionate defenses of abortion appeal to the freedom it gives and speak of abortion as a right; what is simultaneously more freeing and more enslaving than the power to kill?

Like the love of money, racial injustice, and an obsession with guns, abortion is an American idol animated by the desire to liberate oneself from one’s obligations to the vulnerable. It a power that requires legal bulwarks, economic incentives, and spiritual broadsides to defeat. The process of dehumanizing and othering children in the womb is a spiritual one, and if we have any hope of defeating the power of false liberty we are going to have to fight on every possible front.

It would be a tragedy for Roe v. Wade to be overturned only to have the steady onslaught of atomism continue to liberate the national psyche from its sense of obligation to the vulnerable such that abortion was legalized again after another few years. Such a tragedy is inevitable if our machinations about Brett Kavanaugh don’t deal with the ramifications of his nomination for other vulnerable Americans. It is necessary that the pro-life movement have the cultural and social foundations to endure as long as America does, and its unceasing fealty to the Republican Party and now Donald Trump has done it no favors in this regard. It is hard to know where the politics of poverty reduction lines up here, but since no one on the national stage has yet to offer a platform that calls for legal restrictions on abortion and an expansive welfare state, it is at least worth a try. It would at least make all the “single-issue” abortion voters and pro-life Democrats put their money where their mouth is.

It can be simultaneously true that the pro-life movement has done much to support and love vulnerable women and children and yet is still far from where it needs to be in order to build a sustainable culture of life. Here, we run into the interconnected web of problems that accompany false liberty: in order to even be available in the lives of vulnerable pregnant women to support them, we have to be in relationship with them. Those relationships usually require proximity, and proximity requires resisting the urges to concentrate our wealth and power along with other wealthy people and deliberately making the choices that everyone else around us makes for the express purpose of avoiding chance encounters with vulnerable people. A different way of life is possible — and we are fortunate that among the signers of Freedom Road’s statement, we can find many excellent advocates for a way of life that better orders our freedom and our obligations to the poor.

I am wholly in favor of ensuring that everyone in the world has access to quality healthcare; I have spent my short career working towards this goal and writing about why this is a moral imperative for the state. I subscribe to many similar ideas about the crucial importance of poverty reduction. Yet I cannot accept the canard that other legal interventions against abortion can somehow be rendered unnecessary by reducing poverty, and it is a failure of both imagination and courage to suggest otherwise. Poverty and abortion are both the natural outworkings of evil systems that exploit and abuse human beings made in the image of God; simply replacing Anthony Kennedy with another justice like him will only keep the status quo of culture war where it is now and fail to transform the Christian political imagination as it needs to be transformed. Let us fast, pray, and listen, yes—but let us not accept a lesser solution.