Abortion and the Law
The leaked Supreme Court Draft is an interesting read and gives some historical perspective on our country and the present state of our culture. 30 of the almost 100 pages (as an appendix) deal with specific historical testimony which shows that abortion is a new legal concept without precedent. It was only recently declared an intrinsic human right.
The draft is dated Feb. 10th, showing this has been in the works for a while. The leak is a significant news story in itself, but since this is an internal document, it is subject to revision and nothing has been decided by the Supreme Court as of yet.
The draft by Justice Alito admits that abortion is a contentious issue. Declaring it constitutional was a radical move at the time, both legally and socially. But now abortion is part of the fabric of American life for many. The knee-jerk reactions to this possible future Supreme Court action, overturning Roe v. Wade, show this. Many are profane, angry, and unthoughtful—almost pure rage. It seems to be this way because when you tell someone their most cherished principle and way of organizing society is not a right after all, but potentially criminal, it is their deeply-held religion that is being attacked. Abortion is the worship of man’s ideology, selfishness, and hate, which admits nothing higher.
Critics are calling this move radical, hateful, and dangerous. But the U.S. made it all the way to 1973 without this “right.” Most of human history has done well without treating life in the womb as a potential threat and enemy.
The argument is very careful and quite legal—and not so much about a moral stance on abortion directly. It simply says that the Constitution and the legacy of common law does not dictate that the act of taking unborn life is a constitutional right. Rather, the draft cites much evidence that it was a crime for most of the U.S.’s history. Even 17th century English jurists such as Sir Matthew Hale are cited as proof of the historic common law approach.
The previous decisions supporting abortion speak of “fetal life” or “potential life” (5), which we can all agree is not nothing. Whether one agrees this unborn baby is fully human and deserving of government protection and rights, or not, the issue cannot be avoided. As a country we have not become less contentious on this issue of unborn life because we were made to be fruitful; God gives life. It is not a choice, or else many with hardened hearts and wills would not have children or the possibility of a child—but they do, necessitating abortion, in their mind. We do not plan children as laying out a five-course meal. Despite the rhetoric of “pro-choice,” we have little to no power in the actual procreation life, only the ability to destroy it. The problem is actually man’s problem with our biology and the children created and given by the Maker—which cannot be solved by laws or government action. It is a God-problem, who creates lives—one the Supreme Court is ill-equipped to address.
The social change since Roe is noted. We have not become less divided as a nation and this issue of abortion is the line in the sand. It has become a rallying cry and voting principle, even though no elected officials have direct control over this issue—voting in almost all elections has no effect on the Supreme Court makeup.
Abortion and preserving the life of the unborn are more fundamental than sexual actions and other minority-type cases because all humans are alive. Life is something personal and universally to be valued, even as those lost in sin curse the day of their children’s birth and execute their God-given neighbor.
The draft says that Roe short-circuited the political process, ending debate by federal fiat—as an “exercise of raw power” (3). The draft is framed in terms of the relation of states to the federal powers, rather than abortion itself. It does not take a stance on abortion, as a moral question, but aims to return the power to each state, that is, the will of the people.
The tone is clear: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences” (6). Modern, advanced medical technology allowed professionals to target the baby without harming the mother’s life. This was a new thing in human history. In the natural order, the two lives of mother and unborn child cannot be divided. They should not be pitted against one another, but are intertwined. To care for one is to care for both. Modern abortion, both surgically and recently in medicine, allows the baby to be unnaturally separated from the mother.
But as imaging technology has gotten better, the reality of life in the womb has become clearer in recent decades. Our eyes tell us a baby only a few months along is not a blob of tissue. Ultrasounds, sonograms, fetal surgery, and other types of technology allow for recognizing the wondrous nature of God’s creation—to peer into God’s workshop of the womb. This has clarified the issue and galvanized many, and has made it distasteful for most, even those who don’t see all life as made in the image of God.
The pro-murders don’t want to actually think about what happens in abortion—a vague idea (of freedom, security, or success) is placed in priority over an actual life. But our eyes do not lie, the images of life in the womb show a person—not an undeveloped mass of fetal tissue, but a person God created just like us.
The issue of almost 50 years of Roe’s reign is tackled by a long-term view: “Not only was there no support for such a constitutional right until shortly before Roe, but abortion has long been a crime in every single State” (15). The criticism leveled against Roe is that it was more legislation than legal opinion. The original trimester scheme and date of fetal viability has been criticized by those for and against Roe. All are subjective and viability has been lowered to at least 22-24 weeks with more advanced fetal medicine.
A conservative legal stance is evident throughout. Social attitudes have changed drastically. But is the idea of law as something above opinion polls and what people demand more fundamental? Should the courts and judicial branch move with the times and people? Or is there an eternal justice showing right and wrong, best exemplified by God’s law. Though not directly stated, that seems to be the underlying issue: does morality change and is the law above citizens?
Roe’s “right to privacy” is absurd when viewed neutrally, but of course no one can be completely neutral on the topic of life and babies—it is too personal. It is not the laws that are outdated, but how we define a person. The 1992 Casey decision which modified and codified Roe is quoted: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (30). Does man completely define his own life—his aims and what is proper and noble for him? No, but saying so makes another person (or even granting the idea of a potential person) a matter of individual privacy, since a baby changes one’s life. But then everything must be private—the government should not say “no” to any action. That is the direction we have been heading.
What is freedom and human dignity? That is at the heart of the issue. Is it the freedom from guilt, slavery to sin, and eternal death—or to decide not to have a child given to you? If everyone decides their own universe, in the name of liberty, we have chaos, which is what abortion is—mother and father turning against their own progeny. Laws do not give hope. Overturning Roe would not be a Christian victory. God’s Word has not changed for those who listen to it. This quote by a non-Christian historian (William McNeill in Rise of the West), shows the shift in cultural attitudes which leads people to fight against new life.
Without religious revival on a grand scale, I should think it likely that moral lassitude and a spirit of indifference, a sense of futility, and perhaps, a supine fatalism would increasingly gain hold of men’s minds; and, having nothing much worthwhile to live for or strive for, they might cease to propagate their kind in sufficient number to prevent a decrease in the population of the earth. Something like this frame of mind did come to possess the Greeks and Romans, [in] the curious demographic decay of those nations … (Quoted in: J. W. Montgomery, Where is History Going, 97).
The issue goes much deeper than laws and temporary court decisions—which are of a negative civil authority and do not convert the heart. The pro-abortionists are really angry at God who created them to be fruitful. Separated from God, and in rebellion against Him, for the unbeliever there is nothing positive to ascribe to living, and therefore new life. The sinner’s will is pitted against God’s creative action fundamentally in abortion.
In truth, to be human is not to be a god in deciding who lives and who dies. To be free is to trust in God’s good and gracious will, depending on His care and providence in faith. Women are honored and blessed to be mothers, because life is good and from God Himself to be forgiven in the Gospel. Fathers are to be Christ-like in caring for their families and leading them under God the Father. But we only see this heavenly viewpoint of man in the cross of Christ—redemption for the human race. Real Christians want more baptisms, not less. But many Christians have been influenced by Margret Sanger and her gospel of death and non-life—as really living. “Mrs. Sanger intended birth control not simply to reduce the suffering of the poor and the number of the unfit [eugenics], but also to increase the quantity and quality of sexual relationships” (Marshall and Donovan, Blessed are the Barren, 69).
The issue abortion brings up (even for those who have not been pregnant or had martial relations) is fundamental. Do we decide the very existence of others—does our personal idea of life trump life in the womb (granting whatever one wishes to call it)? The more positive view (which Christianity teaches) is that life is indeed tragic and hard for a time, due to sin’s curse, but (unborn) life is not opposed to (adult) life—in Christ’s redemption it is blessed for eternity.
Justice Alito mentions explicitly in his draft newborn safe-haven laws and adoption. While those do somewhat satisfy the demands of the pro-murders, everyone knows that a child in the arms cannot be so easily rejected by his mother. The murder of newborns would require the most evil and heartless mothers.
Murder would never be so popular if it were only allowed after the birth—the connection God makes between mother and child cannot be so easily broken. Only the most hateful parents could murder their own child—calling the life that came through them evil. But the disintegration of marriage in the minds of many and the assumption that avoiding extra-marital sexual immorality is most impractical has broken the bonds tying humanity together. Modern imaging of life in the womb, however, allows the relationship of mother and child—which cannot be separated—to be forged easier and earlier, even for those who do not see all life as a gift of God. But it cannot piece the family back together.
The disparate ways of defining “human existence” is at the root of abortion. Do we define it by our wants, or is there a common definition which remains unchanged above our ideas, thoughts, and sinful desires? “Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. … Those criteria … could license fundamental rights to illicit drug use, prostitution, and the like” (32). A right to privacy for the existence of one’s own progeny is strange indeed, but as uplifting and defining “human existence” it describes an all-encompassing religious/philosophical principle, rather than a legal code. The self as god defines existence as not having children (unless one “chooses”), while doing the very predictable actions that will bring them. Of course, that is an ideological argument, not a legal one. “The fundamental moral question it poses is ageless” (33). It is really about nature—God’s creation of new life, not about ideas, for the Christian.
The draft makes the much more limited case that abortion is simply not a constitutional matter: “supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives” (34-35). It is saying that the Supreme Court, a very small number of justices, should not completely decide this matter. The following is a rather provocative quote, but not a moral stance, per se: “Roe was on a collision course with the Constitution from the day it was decided … wielding nothing but ‘raw judicial power,’ … the court usurped the power to address a question of profound moral and social important that the Constitution unequivocally leaves for the people” (40). The Christian should say that the sinful people should not decide it—God has already—but it at least it allows some states to get it right and prevent more bloodshed. The draft goes on to describe how this issue has overclouded almost every other matter in the U.S. But the state has an interest in life (even potential life), or else it can do little else.
The legal case is straightforward enough, but to those who see abortion as salvation, and think liberty and the good life flow from murder, it will not be convincing, I am sure: “Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about common law was simply wrong.” Roe was and is radical and has not held up well in the face of logic, facts, and the reality of human life.
Despite the rhetoric of those incensed at the idea that abortion will not be a constitutional right, the case is made that this is not of a conservative cause, but a matter for the people. One USA today headline reads: “Rights to contraception, gay marriage and interracial marriage could be endangered under a draft Supreme Court ruling.” But the draft states explicitly: “And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that out decision concerns that constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” (62). The reasoning, however, could be applied to other issues, but having the federal government or really just a majority of Supreme Court justices decide a moral, and ultimately spiritual matter, is not best.
For the Christian, God’s Word settles the matter. The draft is encouraging, though the reaction against this type of decision will be angry and violent. No matter, the Lord’s will is right, even when man opposes it. Life is ultimately His to grant and take away—as are laws, leaders, and nations.