Column: A sin, a crime

For the Valley News
Published: 11/7/2020 10:10:05 PM
Modified: 11/7/2020 10:10:03 PM

Now that Judge Amy Coney Barrett has been seated on the U.S. Supreme Court, her open embrace of the Roman Catholic teaching that life begins at the moment of conception raises an urgent question about her judicial philosophy.

I don’t mean whether she will vote to overturn Roe v. Wade, for that is a question that she has repeatedly and predictably refused to answer. But to the best of my knowledge, no one on the Senate Judiciary Committee or anywhere else has raised a far more fundamental question: Does she recognize the distinction between sin and crime?

From anyone appointed to serve on a court whose sole duty is to judge every case in light of the U.S. Constitution, an affirmative answer should be automatic. Since the very First Amendment to the Constitution grants freedom of worship, it also allows us to violate the First Commandment by worshipping anything or anyone, including Satan.

Though Justice Barrett probably disapproves of Satan-worship, she has never advocated repeal of the First Amendment, so she presumably accepts the principle that even grievous sins may be legal. But has she ever explicitly stated that she recognizes the difference between sin and crime? As a former distinguished professor of law at a leading Roman Catholic university, is she thoroughly familiar with Roman Catholic teaching on this difference?

If so, she should know that sin and crime were clearly distinguished by two of the greatest philosophers in the history of Roman Catholicism: St. Augustine of Hippo and St. Thomas Aquinas.

In the 13th century, Aquinas damned prostitution as a “sin committed directly against human life” and therefore a “mortal sin,” binding the soul to spiritual death. But he also thought civil authorities should tolerate it — as a way of containing lust. And on this point he quotes Augustine, who declared in his late 4th century De Ordine (On Order): “If you do away with harlots, the world will be convulsed with lust.” (Summa Theologica 2-2.10.11).

Whether or not prostitution should be legal (as it is now in Nevada), Aquinas and Augustine both understood the difference between sin and crime, between divine law and human law. Since human law aims not to promote eternal salvation but to ensure temporal order, it cannot, says Aquinas, “forbid all vicious acts” (Summa Theologica 1-2.96.3). In our own time, likewise, the Catholic Church finds homosexuality sinful, but the Vatican has just confirmed what the Pope recently told an interviewer: that same-sex unions — civil unions — should be legal.

To some extent, Barrett probably accepts this point. While she no doubt believes that adultery, idolatry and divorce (plus remarriage while one’s spouse is still living) are all mortally sinful, as the Catholic Church teaches, she has never indicated that she would vote to allow any state to criminalize these acts.

Would she vote to re-criminalize abortion — more precisely, to hold that state laws against it are constitutionally permissible? Though she has not yet clearly said yes, consider what she said when asked about Roe v. Wade at the Senate confirmation hearings for her previous judgeship in 2017. “All nominees,” she said, “are united in their belief that what they think about a precedent should not bear on how they decide cases.” So, in deciding whether to overturn Roe, Barrett would ignore nearly 50 years of Supreme Court rulings that have affirmed a woman’s right to terminate her pregnancy. They would have no bearing on her decision.

Freshly joined by Barrett, then, suppose a majority of the court decides to jettison its precedents on abortion. Since any woman who has an abortion is just as responsible for it as the individual who performs it, women would have to be prosecuted. But how many juries would convict a woman for exercising what the Supreme Court has repeatedly defined as her constitutional right? When has the court ever revoked a right that it had previously upheld for nearly half a century? Recriminalizing abortion would subject our judicial system to a truly unprecedented havoc. In terms of what both Augustine and Aquinas have written, it would violently disrupt temporal order.

Yet supposing Barrett concludes that recriminalizing abortion is worth disrupting that order. As distinct from Roman Catholic teaching, what are the constitutional grounds on which any government can forbid the termination of a woman’s pregnancy? The late Justice Antonin Scalia, Barrett’s revered mentor, regularly decried Roe v. Wade because, the great originalist claimed, it conjured up a “right to privacy” that can nowhere be found in the original text of the Constitution. Where then does that text define the zygote — a fertilized egg — as a person? Where does it grant a fetus the rights of a person?

As a Roman Catholic, Justice Barrett is perfectly entitled to believe that terminating a pregnancy is mortally sinful. But unless she can demonstrate that laws against it do no harm to the constitutional rights of women, I believe that she is bound to respect the fundamental distinction between sin and crime — for precisely the reasons stated by Augustine and Aquinas.

James Heffernan lives in Hanover.

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