Is An Influential Pro-Life Judge Really a Religious Judge?

Commentator focuses narrowly on religious aspect of Alabama justice's "threat" to Roe

WASHINGTON — For many social liberals, pro-life leaders are really religious leaders: Anyone who seeks to overturn Roe v. Wade is a Christian conservative at heart.

For Pro Publica reporter Nina Martin, Judge Tom Parker of Alabama is a case in point.

In a story excerpted in The New Republic, Martin wrote that Judge Parker’s emergence as the top legal theorist for “personhood” is rooted in a theological vision. The judge, she notes, cited God or the Bible at both his judicial swearing in and a speech he gave to a now-defunct conservative Christian group in 2005. Martin writes:

At Parker’s swearing-in, he made it clear that he had sought the bench to continue his old boss’s spiritual fight.

“The very God of Holy Scriptures, the Creator, is the source of law, life, and liberty,” he declared to an audience that included his eight unsmiling fellow justices.

The atmosphere at Parker’s Witherspoon appearance was far warmer, and his remarks there were even more candid. A DVD of the session shows him gripping the lectern, dressed in a gray suit and blue tie, as he railed against the perceived sins of jurists at every level. “It’s the judges who have legalized abortion and homosexuality … They are shaking the very foundation of our society.” Parker made it clear that he had no intention of letting legal precedent get in his way. “We cannot fall under that trap,” he insisted. “We have to stand for what’s right."

Yet Martin concedes that Parker’s legal arguments against Roe are sound, as they build on secular legal precedent:

Step by step, Parker lays out his evidence: laws that give inheritance rights to unborn children, laws that ban pregnant inmates from being executed, laws that give fetuses legal guardians for the purposes of protecting their interests, laws that allow parents to sue for damages if fetuses are injured or killed as the result of negligence or some other wrongful act. Several pages of the concurrence consist almost entirely of lists of statutes from around the country conferring fetal rights. “Today, the only major area in which unborn children are denied legal protection is abortion,” he concluded, “and that denial is only because of the dictates of
Roe.”

Parker’s arguments worry Martin: the Supreme Court might adopt his reasoning that the unborn are persons after all:

This past spring, as if to punctuate its reasoning, the Alabama Supreme Court confronted a virtually identical case, and, with Parker again writing the majority opinion, reached a virtually identical conclusion. In
this concurrence, Parker called on the U.S. Supreme Court to resolve the matter of full fetal rights once and for all. The Court will soon have its chances, if it wants to take them. The U.S. Court of Appeals just upheld a set of abortion regulations in Texas that have shut down most of that state’s abortion clinics, the appeal of which the justices could well agree to hear.

But Martin’s story leaves key questions unanswered. Could not a religious skeptic or a secular judge make convincing arguments to overturn Roe? Was Supreme Court Justice Byron White’s dissent in the 1973 case that the court’s decision was a "an exercise in raw judicial power" rooted in a theological vision or simply a secular reading of the Constitution?

Mark Stricherz covers Washington for Aleteia. He is author of Why the Democrats are Blue.