The justice is a bit of a bully. She may, for all I know, be the nicest of people in normal life, but not on the court. Sonia Sotomayor became a little famous in pro-life circles last week for one of her comments in the oral argument in Dobbs vs. Jackson Women’s Health. She tries to protect legal abortion by claiming that any idea of when the unborn child is alive comes from religion and therefore not something the court can recognize. The pro-life arguments and the biological facts don’t matter. 

It’s a tiresomely typical move. Almost anyone (left or right) engaged in an argument wants to find an objective standard that everyone accepts by which to dismiss the other’s claim. But pro-choicers do this as a matter of habit. You start to say, “The child has his own unique DNA from the moment of con ...” and they howl, “Separation of church and state!” It’s a form of bullying.

It works this way. The move saves you the bother of arguing and spares you the risk that you might lose the argument. It lets you claim an absolute victory and not the limited victory you have even when you win an argument. When you win an argument, the people on the other side can reject your victory and keep arguing. They can’t keep arguing when you find a way to rule them out entirely.

Sometimes you can find a standard, and sometimes you can’t. If you can’t, and you want to win, and you’re not too scrupulous about how you do so, you insist that your standard is objective even though it isn’t. 

Decades ago, modern secularism settled on the cry “Separation of church and state!” as a way of banishing certain claims from public life. Secularists declare this an objective standard set by the Constitution that gives Americans the rules for our public life.

That would be fair, were it true. It isn’t. The Constitution demands no such exclusion of religious belief from our political life. Robert George explains this well in a recent interview. Whatever the separation of church and state means, it does not mean the separation of theology and state.

The comments come near the end of a not entirely coherent exchange between the justice and Mississippi Solicitor General Scott Stewart. I couldn’t have done it myself, but I would expect a lawyer in that position to be better on his feet. Or to have included another lawyer who is. 

We were not well-served, at least in that part of the arguments. (To be fair to Steward, in other aspects of the case, he was hampered by the kind of argument he had to make, as the philosopher Hadley Arkes explains. He had to argue from “text, structure and history” and ignore the real question of “moral substance.”)

Sotomayor asks: “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?” (I think she means not “when life begins,” but when the fetus becomes an individual person who has or might have the right to live.)

She then asks Stewart, “When do you suggest we begin that life?” That is, when does the unborn child become a creature who cannot be killed? Stewart starts to respond and the justice cuts him off, saying, “Putting it aside from religion.” In other words, you will argue on my grounds, not yours, and you will let me define for you what your grounds are. We could all win every argument we have if we could only tell the other side what it can say.

Sotomayor’s dismissal of the argument for the unborn child’s rights isn’t the end of the bullying. The justice counters Stewart’s argument by saying that restricting abortion would let the state tell women they must suffer and perhaps die to have children. 

“So when does the life of a woman and putting her at risk enter the calculus?” she says. The Mississippi law puts poor women “at a tremendously greater risk of medical complications and ending their life, 14 times greater to give birth to a child full term, than it is to have an abortion before viability. And now the state is saying to these women, we can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what?”

It’s a real question, a good question, but she seems to think it a conclusive argument. It’s useful to her side, certainly. She is saying that you pro-lifers want to impose your own idiosyncratic ideas, ones you can’t bring to the public square, on vulnerable women to their serious harm. Don’t even try that.

That completely avoids the crucial question of who the child is. It also diverts attention from that question by condemning the child’s defenders for wanting women to die. Whether the unborn is a human being with human rights doesn’t matter. If you think it matters, you’re not only cruel but you’re violating the separation of church and state.

Justice Sonia Sotomayor doesn’t argue fairly. In line with many pro-choicers, she tries to bully her way past the arguments for the unborn child’s right to live. The tragedy is that the defenders of the unborn have answers to all her questions, very good ones — better ones, I think, than hers. They deserve to be engaged, not bullied out of the public square.