In a move that seemed to toss any semblance of impartiality out the window, Supreme Court Justice Samuel Alito took aim this week at some of the most charged issues in American life—coronavirus restrictions, LGBTQ rights, and abortion—publicly framing many of them as attacks on religious liberty.
Speaking Thursday at a gathering of the Federal Society, a powerful network of conservative attorneys, Alito tried to walk a fine line between reassuring listeners that he was not “diminishing the severity of the virus’ threat to public health,” while at the same time lashing out at what he sees as ominous restrictions from city and state governments.
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“All sorts of things can be called an emergency or disaster of major proportions,” Alito said. “Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.”
Supreme Court justices have traditionally tried to remain above the political fray. In recent years, some have waded into it anyway: Neil Gorsuch and John Roberts have both rebuked President Donald Trump for his attacks on judges and the judicial system. But Alito’s remarks went far beyond anything other justices have said publicly.
Though he touched on several different topics, Alito returned to one core message: Freedom of speech for religious Americans is now at stake.
“Think of worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur,” Alito said in reference to COVID restrictions, adding that lawmaking was being done by executive order, not legislators.
He went on to take a tour of some of the Supreme Court’s most controversial cases.
“You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry,” said Alito. In reference to a 2018 case in which a baker declined to make a wedding cake for a gay couple, Alito suggested that the couple was fine because “celebrity chefs have jumped to the couple’s defense.”
Perhaps Alito’s favorite talking point, though, was reproductive health care, and he repeatedly expounded on birth control and abortion.
An order of nuns who’ve refused to pay for their employees’ contraception have been, in Alito’s words, “under unrelenting attack for the better part of a decade.” He added that morning-after pills, like Plan B, “destroy an embryo after fertilization” and suggested that they cause abortions. While Plan B can prevent a fertilized egg from attaching to the uterine lining, the pill doesn’t cause abortions. (Anti-abortion activists frequently conflate morning-after pills and abortions.)
He also brought up the Supreme Court’s most recent abortion case, involving the Trump administration’s fight to reinstate restrictions on a drug used to induce abortions. Unlike previous cases in which houses of worship challenged COVID-19 restrictions and a majority of justices deferred to the executive branch, Alito was infuriated that this time they refused to side with the administration, instead punting it to a lower court.
The case, he said, was evidence that “religious liberty is in danger of becoming a second-class right.”
Correction 11/15 2:23 pm: A previous version of this story incorrectly stated how morning-after pills work. The text has been updated.
