Amanda Andrade-Rhoades/AP Photo
Anti-abortion demonstrator Joan McKee holds up a rosary during the Women’s March, which largely focused on abortion rights, in front of the Supreme Court in Washington, January 22, 2023.
Earlier this month, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in Alliance for Hippocratic Medicine v. FDA. The appeal challenges a lower-court ruling striking down the FDA’s decades-old approval of mifepristone and the drug’s interstate shipment. The appellate judges asked predictable questions about whether the plaintiffs had standing to sue, the FDA’s powers, and the 1873 Comstock Act. But they failed to drill into the other shocking prospect Judge Matthew Kacsmaryk’s trial court ruling in the case had raised: the possibility of a new conservative Christian rule of law.
Kacsmaryk’s mifepristone ruling repeatedly affirms conservative Christian faith commitments. His opinion calls fetuses “unborn humans” and “unborn children,” and suggests, via approving citation of other conservatives’ ideas, that those unborn people deserve their own constitutional rights. Reinforcing these religious and pro-life bona fides, the opinion disparages some physicians as “abortionists,” and connects pro-choice to eugenicist positions. Embracing pro-life “abortion regret” rhetoric, the opinion’s casual, if confident, paternalism indicates that women’s interests are best served by denying them choices about their own health, bodies, lives, and futures.
Though these juridical “tells” seem like important topics for appellate discussion, the Fifth Circuit judges hearing Alliance for Hippocratic Medicine made no serious inquiry into them. In other circumstances, or with other judges, these evasions might have been surprising. Appeals courts review lower courts’ rulings for legal errors, and if these tells indicate Kacsmaryk’s ruling was ultimately based not upon secular, public reason, but a conservative Christian worldview, that would be grounds for reversal. At least so long as rule-of-law norms still require judicial opinions to be founded in politically liberal reason that everyone can reasonably accept.
If Kacsmaryk’s Alliance for Hippocratic Medicine opinion is, indeed, founded in conservative Christian positions, however, it may reflect and advance a kind of “integralist” project. “Integralist” in practically treating conservative Christian views and values as fundamental, both prior to and constitutive of our long-standing basic rule-of-law norms and conditions. Operationalized, Kacsmaryk’s opinion looks to follow an evangelical canon, construing established legal doctrines and positive law rules—or some of them, in the abortion realm—in a conservative Christian light, no matter their underlying secular rationalist purposes.
Seen in these terms, Kacsmaryk’s opinion conforms to a certain aspirational—or fearsome—understanding of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling. Among many faithful conservatives with pro-life commitments, the hope is that Dobbs prefigures future judicial development of a broadly conservative Christianized rule of law that will return American law and life to their religious roots.
This project may have only begun with Dobbs returning established constitutional rights like abortion rights to the realm of democratic politics. Many faithful conservatives hope and sense a larger governance project is afoot, one in which judicial authority reflects a conservative Christian will to power and to rule. This project isn’t only about judicial opinions carving out special exemptions from existing laws for Christian conservatives, understood as a minority group deserving protection against secular liberal majoritarianism. Kacsmaryk’s opinion rings the bell for a minoritarianism desirous of exceptions, but also for the broader right to govern consistent with conservative Christian beliefs when and if those in power choose.
Relevant inquiries into Dobbs would have shown that Dobbs formally disavows any grounding in conservative Christian views and values.
Kacsmaryk’s Alliance for Hippocratic Medicine opinion thus underscores the urgency of getting clear on how Dobbs actually relates to these larger rule-of-law prospects. If Dobbs either enacts them or foretells their realization, then Dobbs may give Kacsmaryk’s ruling some legal footing for what it says.
Understanding all this helps to explain why it’s so striking that the Fifth Circuit judges didn’t seriously dig into Dobbs and its teachings, the elephant in the courtroom, during oral arguments in the case. No matter, though. Like Kacsmaryk’s opinion, the appellate judges’ questions in different ways seemed to presume Dobbs’s sympathies for faithful Christian conservative positions. Those positions kept resurfacing during oral arguments in discussions about whether the plaintiffs were the right people—with legal standing—to bring this suit.
Relevant inquiries into Dobbs would have shown that Dobbs formally disavows any grounding in conservative Christian views and values. Officially, Dobbs presents itself as a conventional secular decision conforming with traditional politically liberal rule-of-law conventions, as when it emphasizes its neutrality between the parties to the abortion wars. If you believe this—not everyone does—Dobbs’s self-stylings indicate it’s an ordinary rule-of-law ruling overturning Roe v. Wade, which it deemed a lawless precedent. Lawless, according to Dobbs, because neither the Constitution’s text nor the nation’s history or traditions give the Court the power to define, much less police, infringements of abortion rights.
This position defeats Kacsmaryk’s opinion’s conservative Christian rule-of-law reformation play. Dobbs is dramatic and transformational, but it doesn’t manifest or herald a conservative Christian rule-of-law kingdom come. Kacsmaryk’s opinion misidentifies Dobbs’s religious symbolism, and is thus primed for reversal, if not by the Fifth Circuit, then by the Supreme Court, at least if we can take the Supreme Court at face value in Dobbs.
That may be a big “if.” Whether or not the Fifth Circuit’s likely approval of Kacsmaryk’s opinion is based on the judges’ shared religious commitments, it may respond to the sense that Dobbs in fact reflects a different truth, the very truth—or anyway, possibility—that Kacsmaryk’s opinion effectively identifies: of conservative Christianizing transformations in the rule of law yet to be properly announced.
Without doubt, Dobbs gives conservative Christian positions, particularly those involving the right to life, a serious boost. Dobbs hands Christian conservatives, among others, a political right to rule again over women’s and other pregnant people’s bodies and lives. Legally transformative, this kindling of a godly political, and hence legal, kingdom is still very different from a larger conservative Christian rule-of-law world that judges are thereby empowered to enforce.
Kacsmaryk’s opinion forces the question of whether a majority of the Supreme Court believes there’s a meaningful difference between reauthorizing citizens and legislators to vote their conservative Christian consciences on abortion rights, and a ruling giving judges the same authority to vote the same positions from the bench, at least where abortion matters, like “medication abortion,” are concerned. In its unflinching subordination of multiple areas of law to conservative Christian anti-abortion logic, Kacsmaryk’s opinion is betting on judges’ right to evangelize the law.
Kacsmaryk’s opinion may correctly be tracking where the Supreme Court may be heading. Even if it does, the Supreme Court, for its own reasons, might still reverse the opinion if the Fifth Circuit doesn’t do so first. The Court might not wish to lose full control over both the calibration and timing of rule-of-law changes it may be feeling its way toward.
Novel in some ways, Kacsmaryk’s mifepristone ruling, in opening the door to a conservative Christian rule of law, breathes new life into an older and ongoing conservative legal project. Here is Russell Kirk, the thinker who did so much to influence 20th-century American conservatism, writing in a 1983 essay entitled “We Cannot Separate Christian Morals and the Rule of Law.” The essay concludes with a section headed “What Is Man?” Kirk writes:
How will this struggle over the nature of law … be terminated? Will the Christian sources of the law be effaced quite speedily … or will the Christian moral imagination and right reason rise up again in strength, even in our courts of law? No man can say. It would be easy to accept, with the Eastern sages in Chesterton’s poem The Ballad of the White Horse, “the inevitability of gradualism”—that is, the steady diminishing of religious remnants and the steady advance of the Dionysian. Yet that cannot be the way of the Cross.
“The men of the East may spell the stars,And times and triumphs mark,But men signed of the cross of ChristGo gaily in the dark.“Night shall be thrice night over you,And heaven an iron cope.Do you have joy without a cause,Yea, faith without a hope?”
In the domain of the law today … there is waged a battle between those who believe that we human creatures are made in the image of a Creator, and those who believe that you and I are not much more than fleshly computers. Even within the courts of law, created to help keep the peace, this war is fought to the knife.
Witness to the truth, my friends, and go gaily in the dark wood of our twentieth century.
The ongoing developments in Alliance for Hippocratic Medicine are powerful reminders of the dark wood we all inhabit in the post-Dobbs 21st century. In it, “signed of” not “the cross of Christ” as Kirk imagined, but the crosses of reproductive rights and justice, of women’s and other pregnant people’s sex equality rights, and of established secular and politically liberal understandings of the rule of law, we now await further word from the Fifth Circuit. Depending on what it says, we may also learn soon after what the Supreme Court thinks about whether the time for an openly conservative Christianized rule of law—“fought to the knife”—has arrived.
