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Human rights begin in the womb, Cardinal Dolan says

Cardinal Timothy Dolan. / Stephen Driscoll/CNA

New York City, N.Y., Oct 23, 2021 / 14:45 pm (CNA).

The first step to ending all forms of violence in society— whether related to crime, racism, or poverty— is ending the violence of abortion, Cardinal Timothy Dolan of New York wrote in an Oct. 20 column. 

“I propose [violence] will not end until we stop the presumed untouchable radical abortion license that seems to have captivated a segment of our society,” Dolan wrote in his Catholic New York column.

“As Mother Teresa wrote, ‘We must not be surprised when we hear of murder, of killings, of wars, of hatred. If a mother can kill her own child, what is left for us but to kill each other?’”

In a politically and culturally divided society, the one thing that seems to unite all sides, Dolan wrote, “is the worry that our world has lost a basic respect for life.”

Dolan cited several compelling examples of lamentable treatment of human life, including the plight of millions of destitute refugees and migrants; the recent horrific scenes during the American withdrawal from Afghanistan; disregard by some for vulnerable lives during the coronavirus pandemic; violent crime, including the murder of George Floyd; the rise in suicides, especially among the young; and the frequent spectre, in so many places, of mass shootings. 

These examples, he wrote, show how “human life is now treated as useless, worthless, disposable.” He cited Pope Francis’ words on the subject, that such things are part of a “throwaway-culture.”

Dolan argued that laws allowing for the killing and dismemberment of innocent babies in the womb send a powerful anti-life message that threatens everyone. 

“Think about it: if the fragile life of an innocent baby in the womb of her/his mother— which nature protects as the safest place anywhere—can be terminated, who is secure?” Dolan wrote.

“If conveniences, ‘choices,’ or ‘my rights’ can trump the life of the baby in the womb, what human life is unthreatened?...When the law allows vulnerable life to be destroyed, forces health care workers to do it against their consciences, and demands that our tax money subsidize it, what message are we giving about the dignity of the human person and the sacredness of life?”

Dolan noted Robert F. Kennedy’s observation that “the health and moral fiber of society is gauged by the way we protect the most helpless and vulnerable.” 

“Who is more fragile and unable to defend herself/himself than the tiny infant in the womb?” he asked. 

“To suck that baby out of the womb, dismember it, or poison it is, as Pope Francis describes, like hiring a ‘hitman’ to assassinate a victim.”

Dolan urged all men and women, with faith or without, to speak up for the “defenseless” unborn babies and to denounce the “right” to abortion as “inhumane, violent, and contrary to human rights.”

Alta Fixsler dies in hospice

Alta Fixsler / EWTN News In Depth / Family Photo

Washington, D.C. Newsroom, Oct 23, 2021 / 13:36 pm (CNA).

Alta Fixsler, the two-year-old British girl whose parents fought to keep on life support, died October 18 after her life support was withdrawn. 

“Sad news, little Alta Fixsler’s life support was turned off this afternoon and she died at the hospice with her parents by her side,” said a statement from a representative for her parents, Chaya and Abraham Fixsler. 

Alta reportedly lived for over an hour once the machines were removed. 

Due to a severe brain injury suffered at birth, Fixsler was unable to eat or breathe without assistance and had spent her entire life at the Royal Manchester Children’s Hospital. Her parents, Hasidic Jews, objected to removing her from life support and fought to continue her care. 

Doctors had previously believed that Fixsler would only live for hours after her birth due to the severity of the injury. 

The Manchester University NHS Foundation Trust, which was responsible for her care, requested permission in May to remove Fixsler’s life support.

Fixsler’s case drew international attention as her parents sought to move her from the hospital in Manchester to receive experimental treatment elsewhere. 

A spokesperson for the Fixslers expressed disappointment at the October court decision that would eventually result in Alta’s death, and called for legislation to protect the rights of parents to make medical decisions for their children. 

"Despite our best efforts and deep discussions to continue Alta's critical care and give her the best possible quality of life, we are distraught at the decision taken by the court to end her life,” said the spokesperson. 

"We strongly believe that making life-changing decisions on behalf of children ought to be a parental right and it is important that we open up the debate around this. We call on the government to look at the current legislation and change it."

Her father, who is a citizen of both the United States and Israel, was granted a visa for his daughter in an attempt to take her to the United States for medical care. They were not permitted to leave the hospital. Her mother is also an Israeli citizen. 

The then-president of Israel, Reuven Rivlin, appealed to Prince Charles in June, saying her situation was “a matter of grave and urgent humanitarian importance.” 

“It is the fervent wish of her parents, who are devoutly religious Jews and Israeli citizens, that their daughter be brought to Israel,” said Rivlin. “Their religious beliefs directly oppose ceasing medical treatment that could extend her life and have made arrangements for her safe transfer and continued treatment in Israel.”

In May, the British High Court ruled against the Fixslers, saying that she should be receiving palliative care and have her life support withdrawn. The High Court said that “Alta is not of an age, nor in a condition to have knowledge of and to adopt her parents’ values.” 

In Judaism, any child born to a Jewish mother is automatically considered to be Jewish. 

Both the Court of Appeal and the Supreme Court upheld the High Court’s ruling that Alta’s life support should be removed, as did the European Court of Human Rights. Judges said that moving her from the hospital would bring “no medical benefit” and was risky. 

After losing their appeals, the Fixslers asked if they could take their daughter out of the hospital to die at their home. That, too, was denied, and a judge ruled that she was to die in a children’s hospice. 

A hospice, said the judge, "best accommodates Alta's welfare need for specialist care at the end of her life under a reliable, safe and sustainable system of high calibre care protected from disruption, whilst allowing, in so far as possible and consistent with Alta's best interests, the family and the community to perform the sacred religious obligations of the Orthodox Jewish faith."

Fixsler will reportedly be buried in Israel.

Oklahoma City archbishop issues call to prayer for end to abortion, death penalty

Archbishop Paul Coakley. Courtesy photo.

Oklahoma City, Okla., Oct 23, 2021 / 12:11 pm (CNA).

Archbishop Paul Coakley of Oklahoma City has issued a call to prayer for the abolition of the death penalty and for the end to abortion in Oklahoma. 

“We must pray for a renewed focus on the precious gift of life - all life from conception until natural death,” said Coakley in a statement published on the archdiocesan website Oct. 20. “We need urgent prayers for our leaders that they have wisdom and courage to create laws and policies that respect the dignity of human life.”

Oklahoma is scheduled to execute seven individuals between Oct. 28 and March 10. The state’s last execution was on Jan. 15, 2015. 

“I ask that we offer special prayers now through the beginning of Advent for greater respect for life, and to pray on the day of the execution for victims of these horrendous crimes and their families, and for the souls of the condemned,” said Coakley.  “As Saint John Paul II said in his encyclical, ‘The Gospel of Life,’ may God grant that all who believe in Jesus proclaim the Gospel of life with honesty and love to the people of our time.”

October is regarded by the USCCB as “Respect Life Month” and the “Month of the Rosary.” 

Coakley encouraged those looking to respond to his call to prayer to pray the rosary, spend time in adoration, pray every day explicitly for an end to abortion and capital punishment, and to pray for the respect of all life.

Oklahoma had previously paused the use of the death penalty following the botched execution of Clayton Derrell Lockett. Medical professionals repeatedly failed to insert an IV into Lockett’s veins, and the execution was halted after 33 minutes. 

Lockett eventually died 10 minutes after the execution was paused due to a massive heart attack.

Indigenous prayers, dancing in San Bernardino Synod Mass spark backlash

Michael Madrigal, a lay minister in the Diocese of San Bernardino, recites the “Native American Prayer to the Four Directions” at the beginning of the diocese’s opening Mass for the Synod on Synodality, Oct. 17, 2021 at Holy Angels Church in Riverside, California. / Screen grab photo of YouTube video.

Washington, D.C. Newsroom, Oct 23, 2021 / 11:33 am (CNA).

The Diocese of San Bernardino says its opening Mass for the Synod on Synodality Oct. 17 sought to celebrate the California diocese’s rich cultural diversity and welcome those on the “periphery” of the Church.

But the liturgy’s unusual pageantry, featuring liturgical dancers, a Native American prayer to the “four directions,” and the appearance at the end of Mass of a colorfully costumed figure that resembled traditional representations of an Aztec demon, has raised eyebrows and sparked criticism on social media.

“Paganism in full bloom,” read one comment on YouTube. “This is an absolute disgrace to God and His Holy Church,” stated another.

The Synod on Synodality is a global consultative process that Pope Francis initiated earlier this month to gather input from Catholics and others around the world about important issues confronting the Church. Many U.S. dioceses held Masses last weekend to inaugurate a yearlong period of listening sessions and other means of soliciting feedback.

Bishop Alberto Rojas was the main celebrant of the San Bernardino diocese’s approximately two-hour-long opening Mass, held Sunday evening at Queen of Angels Church in Riverside, California. San Bernardino Bishop Emeritus Gerald R. Barnes concelebrated the Mass.

The live streamed, multi-lingual liturgy began in dramatic fashion. A lay minister who works at a nearby Indian reservation led the procession into the sanctuary, waving a large bird feather with one hand while carrying a basket in the other, to the accompaniment of beating drums.

After circling the altar and arriving at the lectern, Michael Madrigal, who the diocese identified as a lay minister at St. Joseph Mission Catholic Church on the Soboba Indian Reservation, removed a wooden rattle from the basket and shook it while chanting in a Native American language. Then, in English, he recited the “Native American Prayer of the Four Directions.”

“We begin to the North,” Madrigal began. “It is the direction of the cool winter snows and ice. It is the direction of our healing medicines from where we receive prayer and ceremony and blessings from our creator. In this direction, we pray for all of our spiritual leaders. We pray for strength and blessings for Pope Francis, as he has called us together for this year of Synod. We pray for all of our bishops, priests, religious, and community leaders. We ask you to give them wisdom, strength for the journey.” Similar prayers directed to the East, South, and West invoked the Trinity and asked God for guidance, healing, and protection.

You can watch the full Synod Mass in the YouTube video below. The Mass begins at the 7:53 mark. The entrance procession begins at the 11:15 mark. Matachines dancers appear at the 2:03:13 mark.

Contacted by CNA, a spokesperson for the diocese explained in an email that the prayer’s significance is two-fold. First, the prayer is meant to “reflect the multicultural character of the Diocese and to give voice to Catholic expressions that could be considered on the periphery.”

Second, “this prayer, by its nature, helps the faithful reflect on the entire web of life that God has created — a central idea in Pope Francis’s [encyclical] Laudato Si.”

There is a danger, however, that cultural expressions during the Mass can distract from the proper focus on the Eucharist, said Fr. Daniel Cardó, Benedict XVI Chair of Liturgical Studies at St. John Vianney Theological Seminary in Denver.

“There are many occasions in the life of a diocese or a parish for cultural and self-expression, but the Mass is not the place for these,” Cardó wrote in an email to CNA. 

“True and lasting ecclesial unity comes from the Eucharist, not from our well-

intentioned human experiments,” he stated. “Celebrating the sacraments according to the rubrics and their spirit is the ordinary and simple path for genuine participation in the graces God offers through them.”

Bishop Alberto Rojas of San Bernardino during the diocese’s opening Mass for the Synod on Synodality, Oct. 17, 2021 at Queen of Angels Church in Riverside, California. Screen grab photo of YouTube video.
Bishop Alberto Rojas of San Bernardino during the diocese’s opening Mass for the Synod on Synodality, Oct. 17, 2021 at Queen of Angels Church in Riverside, California. Screen grab photo of YouTube video.

In his homily, Rojas described the synodal path as an invitation to listen to and welcome “all the people in the margins of society.”

“Guided by the Holy Spirit, we come together from different cultures and languages around the world, but united in Christ as one family of families to pray and to listen to each other,” he continued. “We want all the people in the margins of society to know that they are welcome in our communities because they are all children of God created in the same image and likeness of God our Father.”

Near the end of the Mass, Rojas took a moment to explain the symbolism of the entrance procession.

“If you noticed, when we entered the Church, the entrance procession, it was a little different than what we have done in the past,” the bishop said. “Normally, the priest or the presider or the bishops come in the very back, at the end of the process. You noticed this time we were in the middle, symbolizing walking together.”

Moments later, traditional Mexican Indian dancers, called matachines, wearing bells on their clothing and tall, feathered headdresses, filed in front of the altar. After a final blessing, interspersed with loud drum beats, they processed out of the church, dancing.

One of the two drummers positioned at the foot of the steps leading to the altar appeared to be wearing a jaguar costume, which some viewers associated with the Aztec jaguar-demon Texcatilpoca. The diocese did not respond to a followup email from CNA seeking an explanation.

While some social media commentators said they were deeply offended by some of the cultural aspects of the Mass, the Church generally has provided wide discretion in the liturgical use of cultural traditions.

Inculturation of the liturgy has a long history, but has come to particular prominence since the Second Vatican Council's constitution on the sacred liturgy included norms for adapting the liturgy to the culture and traditions of peoples. 

Echoing Sacrosanctum Concilium and recent documents of the Congregation for Divine Worship, the General Instruction of the Roman Missal indicates that “the pursuit of inculturation does not have as its purpose in any way the creation of new families of rites, but aims rather at meeting the needs of a particular culture, though in such a way that adaptations introduced either into the Missal or coordinated with other liturgical books are not at variance with the proper character of the Roman Rite.”

Cardó, however, said there is a proper time and place for celebrating cultural traditions and diversity.

“Thankfully, there are plenty of occasions for other kinds of human and cultural exchanges,” he stated. “But the Mass is the supreme act of adoration, thanksgiving, expiation, and petition, and this is truly experienced through a beautiful and reverent celebration of the Eucharist.”

Pope Francis: Our response to injustice must be more than condemnation

Pope Francis meets with the Centesimus Annus Pro Pontifice Foundation at the Vatican on Oct. 23, 2021. / Vatican Media

Vatican City, Oct 23, 2021 / 10:30 am (CNA).

Denunciation is not enough when it comes to issues of injustice, the pope said this weekend.

“Our response to injustice and exploitation must be more than mere condemnation. First and foremost, it must be the active promotion of the good: denouncing evil and promoting the good," Pope Francis on Oct. 23.

“This means putting the Church's social doctrine into practice,” he said.

Pope Francis encouraged Christians to “sow many small seeds that can bear fruit in an economy that is equitable and beneficial, humane and people-centered.”

He spoke in an audience with the Centesimus Annus Pro Pontifice Foundation’s annual convention, which was held at the Vatican Oct. 21-22.

The foundation is named after the ninth encyclical by St. John Paul II, which addressed the social teaching of the Church, particularly in regard to workers and the economy, and the relationship of the state to society.

“In every area today, we are more than ever obliged to bear witness to attention for others, to to go out of ourselves, to commit ourselves with gratuitousness to the development of a more just and equitable society, where selfishness and partisan interests do not prevail,” the pope said.

“And at the same time we are called to watch over respect for the human person, his freedom, the protection of his inviolable dignity. Here is the mission to implement the social doctrine of the Church.”

“In carrying on these values ​​and this lifestyle, we know we often go against the tide, but let us always remember: we are not alone. God has come close to us. Not in words, but with His presence: In Jesus, God became Incarnate," Francis said.

The theme of the foundation’s conference this year is “Solidarity, cooperation and responsibility: the antidotes to combat injustices, inequalities and exclusion.”

“These are important reflections, in a time in which uncertainty and instability mark the lives of so many people, and communities are aggravated by an economic system that continues to discard lives in the name of the god of money, fostering destructive attitudes towards the resources of the earth and fueling many forms of injustice,” the pope said.

“As Christians we are called to a love without borders and without limits. We are called to be a sign and witness that it is possible to pass beyond the walls of selfishness and personal and national interest, beyond the power of money which often decides the destiny of peoples, beyond ideological divisions that foster hatred; beyond all historical and cultural barriers and, above all, beyond indifference,” he said.

“It is therefore a great task to build a more united, just and equitable world. For believers, however, it is not simply a practical matter detached from doctrine. Indeed, it is the way to embody our faith, to praise the God who loves men and women, who loves life. Dear brothers and sisters, the good that you do for every person on earth brings joy to the heart of God in heaven,” Pope Francis said.

Pope Francis asks religious sisters to pray for him: 'It is not easy to be the pope'

Pope Francis meets with the Salesian Sisters of St. John Bosco in Rome on Oct. 22, 2021. / Vatican Media

Rome, Italy, Oct 23, 2021 / 08:30 am (CNA).

Pope Francis paid a visit to the Daughters of Mary Help of Christians on Friday and asked the religious sisters to pray for him as they live out their mission of service to the young and the poor.

“Thank you for who you are and what you do. I am close to you with prayer and I bless you and all your sisters in the world,” Pope Francis told the Salesian sisters on Oct. 22.

“And I ask you to pray for me; it is not easy to be the pope!”

Pope Francis spent the morning at the General House of the Salesian Sisters of St. John Bosco, as they are commonly known. He encouraged the sisters to imitate the Blessed Virgin Mary, who “always points to Jesus.”

Vatican Media
Vatican Media

“Openness to the Holy Spirit enables you to persevere in your commitment to be generative communities in your service to the young and the poor,” Pope Francis said.

“These are missionary communities, going out to announce the Gospel to the peripheries with the passion of the first Daughters of Mary Help of Christians.”

The religious congregation, founded by St. John Bosco and St. Mary Mazzarello in 1872, has grown to become the largest congregation of women religious in the world with 11,000 sisters in 97 countries, according to their website.

Vatican Media
Vatican Media

Pope Francis encouraged the sisters to work to ensure that their community life is intergenerational, so that the elderly are never separated completely from the younger sisters.

“It is true that old people can sometimes become a little capricious -- we are like that -- and the flaws in old age are more visible, but it is also true that the elderly have that wisdom, that great wisdom of life: the wisdom of fidelity to grown old in one’s vocation,” the pope said.

“Yes, there will be homes for the elderly who cannot lead a normal life, they are bedridden, ... but go there all the time to visit the elderly, to spend time with them. They are the treasure of history,” he added.

Vatican Media
Vatican Media

Pope Francis shared a story from the life of St. Therese of Lisieux as recorded in her autobiography, “The Story of a Soul.”

The pope said: “I am so helped by that experience of St. Therese of the Child Jesus, who accompanied an old nun, who could hardly walk.”

“The poor old woman, who was a bit neurotic, complained about everything, but she [St. Therese] looked at her with love,” he said.

“And it happened once, in the walk from the sanctuary to the refectory, that a noise was heard from outside ... there was a party nearby. And little Therese said: ‘I will never exchange this for that.’ She understood the greatness of her vocation.”

Vatican Media
Vatican Media

The Salesian sisters have held their 24th General Chapter in Rome from Sept. 11 to Oct. 24 focused on the theme: “Communities that generate life in the heart of the contemporary world"

Pope Francis told the congregation to go forward with enthusiasm, accompanied by the Virgin Mary, on the path that the Holy Spirit proposes with a watchful eye to recognize the needs of the world.

He asked the sisters to have “a heart open to welcome the promptings of God's grace … and a heart always in love with the Lord.”

Here’s how to take a local Catholic pilgrimage in the U.S.

The Sanctuary of Chimayo / Modern Catholic Pilgrim Facebook

Washington, D.C. Newsroom, Oct 23, 2021 / 06:41 am (CNA).

The most popular pilgrimages for Catholics range from the Holy Land to the Camino de Santiago. But, pilgrims should know, these faith-filled trips can also be as simple as walking to a local church.

“Choose a place to go, [it] can be as short as a block away,” Will Peterson, the founder of Modern Catholic Pilgrim, told EWTN News Nightly on Oct. 15. “I invite people to not make it too complicated.”

The mission of Peterson’s group is to deepen faith and build community in the U.S. through the longstanding Catholic tradition of making pilgrimages on foot. While many people think of traveling overseas for pilgrimages, they should also consider staying local, he said. 

“There are places worthy of pilgrimage here,” he stressed. For Holy Week, he pointed to New Mexico as a pilgrimage destination.

“Chimayo is a great spiritual place in northern New Mexico where on Good Friday every year there's like 30,000 people who make walked pilgrimage,” he said.

Another, called Wisconsin Way, begins outside Green Bay at the Shrine of Our Lady of Good Help, the only approved Marian apparition site in the country. Founded in 2013 by a local priest, Fr. Andrew Kurz, the trip is approximately 137 miles.

Pilgrimages, as defined by the Catechism of the Catholic Church, are an important part of the Catholic faith and “evoke our earthly journey toward heaven and are traditionally very special occasions for renewal and prayer.”

Catholics can begin their pilgrimages as soon as today. For the month of October, leading up to the Solemnity of All Saints on Nov. 1, Modern Catholic Pilgrim encourages Catholics to walk with the saints by praying for the intercession of a local parish patron saint as they walk to the church named after him or her.

“Then the next time you're there for Mass on Sunday, it’s going to kind of change your experience because you’ve journeyed there as a holy space,” Peterson urged.  

Peterson draws his inspiration from a trip to Rome eight years ago. That experience set him on fire spiritually, he said. Now, he hopes that his group will infuse an appreciation of pilgrimages in the U.S.

Making a pilgrimage on foot is a “very ancient tradition for Christians, but feels kind of contemporary and new [for the U.S.] because we don’t really have a culture of it,” he said. “So we’re excited to be part of that development of the culture.”

Will Roe be overturned? Here are 6 notable Supreme Court decisions that have been struck down

Young people hold signs opposing abortion during the March for Life in Washington, D.C. / Addie Mena/CNA.

Denver Newsroom, Oct 22, 2021 / 18:22 pm (CNA).

Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.

Since its 1803 decision in Marbury v. Madison, the U.S. Supreme Court has exercised judicial review, deciding whether laws violate the country's constitution. These decisions are then used as the precedents for further decisions, creating a stable legal landscape.

Exceptions can occur, however, when the court subsequently decides it erred grievously, or when the U.S. Constitution has been amended following court decisions.

Interest in these cases is heightened as the court will hear oral arguments Dec. 1 in Dobbs v. Jackson Whole Women’s Health Organization, a case regarding a Mississippi law banning abortion after 15 weeks. The case is a test of the precedent set by Roe v. Wade and Planned Parenthood v. Casey.

Among the most notable cases that have been overturned or superseded in the past are Dred Scott v. Sandford, Pace v. Alabama, Plessy v. Ferguson, Korematsu v. United States, Apodaca v. Oregon, and Bowers v. Hardwick. An overview of each case and its subsequent history is presented below.

Dred Scott v. Sandford

This 1857 decision issued 7-2 held that citizenship rights were not held by African Americans, regardless of whether they were free or enslaved. Dred Scott was a slave who had been taken into areas where slavery was illegal, and he argued that he was thus no longer enslaved. In finding that African Americans could not be U.S. citizens, the majority opinion said that Scott lacked standing to bring his case. Nevertheless, the court ruled on the merits of the case, finding the Missouri Compromise, a congressional limitation on slave-holding in new federal territories, to be unconstitutional.

Justices Benjamin Robbins Curtis and John McLean both authored dissents in the case. Curtis noted that African-American men were able to vote in several of the states at the time of the Constitution's ratification, and that they were therefore U.S. citizens in fact.

The Dred Scott decision was nullified by the Reconstruction-era Thirteenth and Fourteenth Amendments, which abolished slavery and involuntary servitude, and granted citizenship to all those born in the country and ensured the rights of due process and equal protection.

This case has been widely cited as an example of Supreme Court decisions that were made wrongly, and is frequently pointed to by pro-life activists urging that Roe v. Wade be overturned.

Bishop David Konderla of Tulsa wrote in a July letter that as abortion is intrinsically evil, “there is never a circumstance that could justify it. The laws that protect it are unjust and, therefore, no law at all. Roe was wrongly decided and must be corrected. It offends God and the principles of our founding, just as Dred Scott and its defense of slavery once did. We corrected that error, and now we must correct this one.”

In July 2020 Democrats for Life cautioned the Democratic National Committee that “denying personhood to the pre-born child has disturbing parallels to Dred Scott vs. Sandford.”

Pace v. Alabama

In this 1883 case the court unanimously upheld an Alabama anti-miscegenation law prohibiting interracial marriage. It held that the law did not violate the equal protection clause because it punished equally whites and non-whites: “Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offence designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.”

This was overturned by two cases in the 1960s. The 1964 decision McLaughlin v. Florida found unconstitutional a Florida law that barred unmarried persons of the opposite sex and when one is white and the other black from habitual cohabitation. And 1967’s Loving v. Virginia struck down a state law prohibiting interracial marriage as violating the equal protection and due process clauses of the Fourteenth Amendment.

Plessy v. Ferguson

This 1896 decision established the “separate but equal” doctrine that permitted racial segregation laws provided that provisions for the races were of equal quality. 

In the 7-1 decision the court said that the Fourteenth Amendment’s equal protection clause didn’t require that “all distinctions based upon color” be eliminated, upholding a Louisiana law that required separate but equal train cars for whites and blacks. The decision held that state legislatures have broad powers to write laws they deem reasonable, so long as they are not intended to oppress a particular class, and that enforced racial segregation does not mark one group with “a badge of inferiority.”

Justice John Marshall Harlan dissented, writing that Louisiana’s Separate Car Act was plainly intended “to exclude colored people from coaches occupied by or assigned to white persons,” compelling blacks “to keep to themselves while traveling in railroad passenger coaches.” He added that the constitution “is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Plessy was effectively overturned in 1954 by Brown v. Board of Education. That unanimous decision found that racially separate schools “are inherently unequal,” violating the equal protection clause.

Korematsu v. United States

In this 1944 case the court upheld by 6-3 an order that excluded persons of Japanese ancestry from the West Coast during World War II. This exclusion order led to the internment of some 120,000 Japanese Americans.

A 1942 executive order had permitted the War Department to designate military areas from which any or all persons may be excluded, in the interest of preventing espionage and sabotage during the state of war. The U.S. Army then created a military area on the West Coast from which persons of Japanese ancestry were excluded. 

Fred Korematsu was a California native who refused to leave his home, and challenged the exclusion order under the Fifth Amendment’s due process clause.

The court’s majority opinion held that the exclusion order was not made out of hostility to Japanese-American individuals or their race, but because the military had deemed it necessary for security during the war. In a concurring opinion, Justice Felix Frankfurter held that the war powers clause gives Congress the ability to enforce military orders deemed appropriate for conducting war. 

The three dissenting justices each wrote opinions, all of them holding that the exclusion order was racially discriminatory. Justice Owen Roberts wrote that “it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”

Korematsu has been widely reprobated since the 1980s, and it was effectively overturned by a passing remark in the 2018 5-4 decision in Trump v. Hawaii. There, Chief Justice John Roberts wrote that “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” and that it “is already obvious … Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — 'has no place in law under the Constitution.'” Justice Sonia Sotomayor’s dissent, which was joined by Justice Ruth Bader Ginsburg, also repudiated Korematsu.

In his dissent from the 5-4 decision Stenberg v. Carhart in 2000, which struck down a Nebraska ban on partial-birth abortion, Justice Antonin Scalia wrote that “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott.”

Apodaca v. Oregon

In this 1972 decision the court ruled that the Sixth Amendment right to trial by jury is not violated by non-unanimous verdict for conviction by state juries in criminal cases. The plurality opinion was held by four justices, with a fifth writing a concurring opinion. Oregon’s constitution allowed a verdict to be reached by 10 members of a 12 person jury.

The plurality of justices held that a unanimous jury was a historical fact, like juries being composed of 12 persons, and was not therefore guaranteed by the right to trial by jury. In his concurring opinion, Justice Lewis F. Powell Jr. held that the Sixth Amendment did require unanimous verdicts for federal trials, but that this did not apply to state trials. Four justices dissented from the plurality decision.

The decision was overturned by Ramos v. Louisiana in 2020. The 6-3 majority opinion found that the Sixth Amendment right to a unanimous verdict was incorporated against states by the Fourteenth Amendment. The minority opinion, authored by Justice Samuel Alito and joined by Chief Justice John Roberts in whole and by Justice Elena Kagan in part, argued the court should maintain the precedence decided by Apodaca.

Multiple amici curiae briefs filed in Dobbs v. Jackson Whole Women’s Health Organization cite Ramos v. Louisiana as grounds for the court overturning Roe v. Wade and its successors. 

A July amici curiae brief by Mary Ann Glendon and O. Carter Snead said that Justice Brett Kavanaugh’s concurrence in Ramos gave three broad considerations to determine whether there is a special justification to overrule an erroneous precedent: that it is “grievously or egregiously wrong”; it has “caused significant negative jurisprudential or real-world consequences”; and whether overruling the decision would “unduly upset” society’s operation.

Jackson Whole Women’s Health Organization similarly cited Justice Kavanaugh’s “egregiously wrong” standard as the issue before the court in its case.

Bowers v. Hardwick

This 1986 decision upheld, by a 5-4 vote, a Georgia law that criminalized sodomy.

The majority opinion rejected the argument that the right to privacy, discovered by the court in its 1965 decision in Griswold v. Connecticut in the Fourteenth Amendment’s due process clause, extended to homosexual conduct. Justice Byron White wrote that “There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority.”

Bowers was overturned in 2000 by Lawrence v. Texas. The majority opinion, held by five of the justices, held that the right to privacy through the due process clause did extend to consensual sexual conduct. In a concurring opinion, Justice Sandra Day O’Connor held that Bowers should not be overturned, but that the Texas sodomy law was nevertheless unconstitutional, by violating the equal protection clause, because it criminalized homosexual, but not heterosexual, sodomy.

In his dissent in Lawrence, Justice Scalia noted that “Today's opinions in support of reversal do not bother to distinguish — or indeed, even bother to mention the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it … Today, however, the widespread opposition to Bowers, a decision resolving an issue as ‘intensely divisive’ as the issue in Roe, is offered as a reason in favor of overruling it.” 

Scalia added that the majority opinion gave three criteria for overruling erroneous precedent, adding that “Roe itself — which today's majority surely has no disposition to overrule — satisfies these conditions to at least the same degree as Bowers” and that “the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.”

Catholics pray after Alabama executes death row inmate

Florida Department of Corrections execution chamber 1. / Florida State Correctional Facility.

Washington D.C., Oct 22, 2021 / 17:01 pm (CNA).

Alabama executed inmate Willie B. Smith III on Thursday evening, Oct. 20, marking the first execution in the state since the start of the COVID-19 pandemic. Smith received a lethal injection and was pronounced dead at 9:47 p.m. 

Smith, 52, was sentenced to death in 1992 for the 1991 murder of Sharma Ruth Johnson, a 22-year-old woman from Trussville, Alabama. Smith kidnapped Johnson at an ATM, robbed her, and then shot her to death execution-style at a cemetery in Birmingham. 

Donald Carson, communications director of the Diocese of Birmingham, told CNA Oct. 22 that the diocese "recognizes that the State must protect innocent people from violent criminals. In today’s world, however, we know that there are ways to do so other than to execute even those such as Mr. Smith, convicted of the most heinous of crimes. Society does not teach respect for life, for the dignity of every living human, by taking life. Instead, capital punishment devalues human life and contributes to a climate of violence in our communities."

The organization Catholic Mobilizing Network, which is dedicated to ending the death penalty, stated on Twitter on Thursday that members were praying for Smith ahead of his execution.  

“Dear God, You call us to be a people of justice and mercy. We know this execution is not Your will,” the group said.

Following Smith's execution, the group stated on Twitter, “Dear God in Heaven, we pray for the repose of Willie Smith's soul. Lord, guide us as we work, in Your name, for a world that upholds and honors the sanctity of all human life.”

During Smith’s trial, a recording of him boasting about his crime to one of his friends was played for the court. He said at the time that he had to shoot Johnson after kidnapping her, as her brother was a police officer. 

An accomplice, a 17-year-old girl who lived with Smith at the time of the murder, testified against him at his trial in exchange for a shorter prison sentence.  

Smith’s death sentence has been controversial for years due to multiple factors. In 2013, his attorneys claimed that he had been given antipsychotic drugs during his trial, which left him incapable of showing emotion.

In 2019, they alleged that his IQ was 70, which is considered to be borderline intellectually disabled. It is unconstitutional to execute someone with an intellectual disability, but both the 11th Circuit Court of Appeals and the U.S. Supreme Court rejected this appeal in Smith’s case. 

Initially, Smith was set to be executed on Feb. 11, 2021. That was delayed after he requested his pastor be present with him during his final moments. The Supreme Court ruled in his favor, saying that it would be unconstitutional for the state to deprive him of a spiritual advisor while executing him.

Why legal abortion is bad precedent: Roe v. Wade critics make the case to Supreme Court

Supporters for and against legal abortion face off during a protest outside the United States Supreme Court. / mark reinstein / Shutterstock

Denver Newsroom, Oct 22, 2021 / 16:38 pm (CNA).

Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.

As the Supreme Court considers whether to overturn its precedents mandating legal abortion nationwide, critics of legal abortion have argued that precedent by itself is no reason to preserve flawed decisions — especially rulings that treat taking a human life as a constitutional right.

“The Supreme Court has, in fact, overruled many of its own erroneous precedents, such as Dred Scott and Plessy v. Ferguson, upholding slavery and segregation laws,” said Ligia Castaldi, a law professor at Ave Maria School of Law in Naples, Florida. 

“Roe v. Wade and Doe v. Bolton are exactly this kind of erroneous precedent,” she told CNA, “with their creation of a non-existent fundamental right to abortion, and their judicial regulation of abortion on the basis of a viability standard and an overbroad definition of the health exception.”

The court’s rulings in Roe v. Wade and companion case Doe v. Bolton legalized abortion nationwide in 1973, while the court’s 1992 decision in Planned Parenthood v. Casey reaffirmed legal abortion.

Castaldi said the principle of stare decisis, a Latin phrase roughly meaning “to stand by things that have been decided,” is a principle that “generally binds the U.S. Supreme Court to its own precedent, its own decisions.”

Sharply different interpretations of that principle as it relates to abortion will be on display Dec. 1 when the nation’s highest court is set to hear oral arguments in Dobbs v. Jackson Women’s Health Organization, the highly charged Mississippi case viewed as a decisive test of Roe and the legal reasoning that has sustained it as the law of the land for the past 48 years.

Three key justices — Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney, all nominees of Republican presidents — have each demonstrated deference for stare decisis. A recent analysis in Slate said the legal team for abortion proponents will try to persuade at least two of those justices that the court’s prior abortion decisions should not be set aside, with Roberts considered the most persuadable and Barrett the least persuadable. Mississippi and many of its supporters in the Dobbs case also address precedent prominently in their briefs.

The principle of stare decisis “protects expectations of people subject to the law,” explained Teresa Collett, a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota. 

“It promotes societal stability, thereby shaping people’s behavior. This is particularly true in the area of economic activity,” Collett told CNA. “Stare decisis does not prevent courts from making mistakes. It keeps them from reinventing the wheel every time a similar, but slightly different, set of facts comes before it.”.

Prof. Teresa Stanton Collett. Courtesy photo.
Prof. Teresa Stanton Collett. Courtesy photo.

Castaldi of Ave Maria Law said legal principles regarding precedent are “intended to promote consistency and predictability of Supreme Court decisions.”

“They are generally a good idea, but just as in every other legal rule, there may be legitimate exceptions,” she said. “They certainly do not prevent the Supreme Court from correcting erroneous decisions, such as Roe v. Wade.”

At issue in the Dobbs case is the constitutionality of Mississippi’s 2018 ban on most abortions after 15 weeks of pregnancy.

As Castaldi explained, the state law directly contradicts Roe, Doe, and Casey. Roe prohibited states from banning abortion prior to fetal viability, or the capacity of the fetus to survive outside the woman’s body (now considered to be at approximately 24 weeks gestation) while Casey barred states from adopting regulations that pose an “undue burden” for a woman exercising her legal right to obtain an abortion.

“It also challenges Doe’s health exception, since Mississippi defines health to mean only physical, not mental health of the mother,” Castaldi said.

“Thus, it begs the question of whether the court should invalidate Roe and the only way that the Court could do this is by departing from stare decisis,” she continued. “That will not be easy to do since Roe has been reaffirmed in the past, such as in Casey, and again in June Medical, where Chief Justice Roberts shocked fellow Catholics by declaring that Roe was binding precedent under stare decisis.”

The 2020 decision June Medical Services, LLC v. Russo concerned a Louisiana law that held abortion clinics to the same standards as other surgical centers, such as requiring doctors to have admitting privileges at a local hospital. The court ruled this posed substantial obstacles to a woman’s access to abortion.

Roberts’ concurring opinion in the 5-4 case said the law was “just as severe” as a similar Texas law struck down in a 2016 Supreme Court decision. Though he had dissented from that 2016 ruling, he said the principle of stare decisis meant that Louisiana’s law could not stand.

However, Castaldi noted, the Supreme Court has already “chipped away” at its precedent in Roe. Casey affirmed a right to abortion based on personal liberty, rather than Roe’s privacy finding, she said, while also dispensing with Roe’s trimester-based system for evaluating state abortion laws.

For Castaldi, such developments allow grounds for further change.

 “Therefore, the court can rely on its own precedent to either undermine or entirely abolish Roe,” she said.

‘Precedent on top of precedent’?

The principal brief against the Mississippi law was filed by attorneys from the pro-abortion rights group Center for Reproductive Rights, on behalf of the Mississippi abortion clinic Jackson Women’s Health Organization. This brief cites principles of precedent, like stare decisis, to argue that all pre-viability bans on elective abortion are unconstitutional. The viability standard is “well grounded in the constitution and the court’s broader jurisprudence.”

The brief also faults backers of the Mississippi law for failing to establish an alternative precedent. If a state seeks to overrule a repeatedly affirmed precedent, the brief argues, it “should at least propose and seriously develop an alternative legal framework.”

The pro-abortion rights brief depicts Casey as “precedent on top of precedent,” saying the decision backed up the correctness of the viability line.

“Even if contested, constitutional rights that have ‘become embedded’ in ‘our national culture’ are entitled to heightened stare decisis effect,” the brief states. It argues that the right to an abortion is grounded in precedents guaranteeing bodily autonomy, family decision-making, and access to contraception. The brief also depicts the viability line as “a principled point” at which to strike the balance of “the individual’s interests against the state’s interests.”

“(T)ime and again, the Court has reaffirmed that it is ‘imperative’ to retain a ‘woman’s right to terminate her pregnancy before viability’,” the brief states.

For Collett, however, the constitutional arguments are key to determining whether precedent should stand.

“Both Roe and Casey are cases that have no foundation in the text of the Constitution, nor are they consistent with the states’ history of outlawing abortion both to protect the unborn child and the mother,” the University of St. Thomas law professor said. “As several justices have noted, stare decisis has less weight in reviewing interpretations of constitutional text.”

The constitutional amendment process makes it “extremely difficult” to correct judicial mistakes. When it comes to the interpretation of the constitution “getting the answer right is more important than stability,” said Collett.

While abortion precedent has at times been described as “settled law,” in Castaldi’s view this perception is not accurate.

Ligia Castaldi, a law professor at Ave Maria School of Law in Naples, Florida. Courtesy of Ligia Castaldi
Ligia Castaldi, a law professor at Ave Maria School of Law in Naples, Florida. Courtesy of Ligia Castaldi

“A case is settled law when no serious challenge to its holdings sticks in state or federal courts and its essential tenets have been repeatedly reaffirmed by the U.S. Supreme Court,” she said. “Roe and Doe are quite the opposite. Roe is one of the most challenged Supreme Court cases of all time and continues to be incredibly divisive both among the justices and the general population.”

At least four Supreme Court justices have called for Roe to be overturned: Chief Justice William Rhenquist and Justice Byron White in the 1989 decision Webster v. Reproductive Health Services, and Justices Antonin Scalia and Clarence Thomas in the Casey decision.

“Roe has sometimes been partially reaffirmed but also undermined by subsequent cases, therefore it is not settled constitutional law,” Castaldi said.

Mississippi Attorney General Lynn Fitch and other leaders made their case for the state law, arguing in their brief that stare decisis is itself an “overwhelming” reason to overrule Roe and Casey.

“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the Mississippi brief states. Roe itself broke from precedent because it invoked “a general ‘right to privacy’ unmoored from the Constitution.”

“Abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” the brief continues. “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”

Clashing views on precedent

Arguments revolving around abortion precedent are integral to a number of other amicus briefs in the Dobbs case.

In an amicus brief filed at the Supreme Court last month, the Biden administration’s Justice Department argued that Mississippi is seeking to overturn nearly 50 years of court rulings that upheld legal abortion.

The administration’s brief asks the court to maintain its previous abortion precedents. Legal abortion “means that every American woman of reproductive age has grown up against the backdrop of the right secured by Roe and Casey, which has become even more deeply woven into the Nation’s social fabric,” the brief states. The brief characterizes abortion bans as “forcing a woman to continue a pregnancy against her will.”

On the other side of the Dobbs case, Collett was the lead counsel for an amicus brief of 240 women scholars and professionals and pro-life feminist organizations. In contrast to backers of legal abortion who claim it is necessary for women’s progress, this brief argues that the current abortion rights precedent disadvantages women.

The brief states that legal abortion changes sexual behavior and increases the rate of sexual relations outside of committed relationships, which in turn leads to more non-marital pregnancies, single parenthood and abortion.

Abortion access changes the point of view of the father and of the wider society to see single parenthood as “always the woman’s ‘free choice’.” Claims that unrestricted access to abortion is “a necessary and a major contributor to women’s economic and social advances” are claims that “simply cannot be demonstrated,” their brief said.