Wednesday, May 29, 2019
Supreme Court Sends a Mixed Message on Abortion: What Does this Mean for the Future?
Massive news on the issue of abortion yesterday in the United States. The Supreme Court handed down a decision in a case that rose from the state of Indiana. Not just from one law, but from two laws. And in this case, the Court headed down what appears at first glance to be a split decision. Indeed, it was a split decision. But we need to look more closely at what exactly this means.
The two different laws had to do with two different aspects of abortion. The Supreme Court upheld an Indiana law that required those who perform an abortion to make certain that the aborted fetus, the unborn baby, would be accorded a decent burial or cremation. This means that the remains from an abortion could not be merely disposed as if they were medical waste. There's a lot to ponder right here when you consider the fact that in many parts of the United States, human remains from abortion are right now disposed of simply as medical waste, as if it's any other form of waste simply discarded.
The Indiana law was no doubt a law that firmed the fact that the state has an interest in the respectful disposition of human remains. But it's really important to note that the pro-abortion movement could not even abide this legislation. Note very carefully, the law had nothing to do with restricting a woman's access to abortion. This law had only to do with saying that the aborted remains would be a matter of state significance. And the state had an interest in making sure that all human remains were dealt with in a respectful way.
In the decision handed down yesterday, seven of the nine Supreme Court justices ruled that this Indiana law “did not affect a woman's right under existing law to determine the final disposition of the aborted fetus.” The Court's majority also underlined the fact that a previous decision from the Court, in the case of Akron v. Akron, that was back in 1983, ruled that the state has “a legitimate interest in proper disposal of fetal remains.” It is important to recognize that this portion of the decision was handed down by a seven-two vote that's rather overwhelming on today's Supreme Court. There were only two justices who dissented. Those two were Justices Ruth Bader Ginsburg and Sonia Sotomayor. Both of them, very much on the line in support of abortion rights.
In worldview analysis, the important thing to recognize here is the fact that the pro-abortion movement could not even abide a law that didn't interfere with abortion at all, but simply did reflect the fact that the aborted remains are human remains. That tells you a good deal about the pro-abortion conscience. But if anything, the second part of the decision was more significant. It had to do with the fact that the Court decided not to take up the question on appeal concerning a law that had been adopted by the state of Indiana during the time that Mike Pence had been governor. This was a very important law enacted in 2016 that made abortion illegal if it were sought merely for reasons of sex selection or because the fetus had been diagnosed with Down syndrome or some other disability. Also outlawed under this law were abortions for the cause of race or natural origin.
Now just think about the moral consequences of that legislation. First of all, it was reprehensible as abortion is the murder of an unborn baby in every circumstance. There is a particular reprehensible nature to abortions that are intentional and premeditated because the baby is targeted because it has been identified as likely being affected by Down syndrome or some other disability or because the baby is aborted because it's identified by race, national origin, or sex. That's a huge issue because sex selection abortions are some of the most common abortions that take place throughout the world. Particularly in South Asia, and also looking at nations individually identified such as China and India where a preference for boys is so profound that the development of technologies to determine the sex of the baby in the womb has led to millions and millions of abortions worldwide.
As Adam Liptak of the New York Times reported, “The case came to the Supreme Court because a three judge panel of the United States Court of Appeals for the Seventh Circuit in Chicago had unanimously struck down the Indiana law that had limited permissible reasons for having an abortion. One of the judges on that three judge panel, however, objected to the decision but indicated that he was bound to it because of Supreme Court precedent. That was Judge Daniel A. Manion.”
But there's another important recognition here and that is the fact that Judge Frank H. Easterbrook, also of the Court who was not on the panel, he issued a statement along with three other judges of the circuit indicating that the decision was misguided. In this judge's opinion, “Casey and other decisions hold that until a fetus is viable, a woman is entitled to decide whether to bear a child.” When it came to the portion of the Indiana law concerning the disposition of the fetal remains, Judge Easterbrook also wrote that had Indiana adopted a law concerning the remains of cats or gerbils, it would have been uncontroversial and no one would have claimed that it was unconstitutional. But here Judge Easterbrook points out that when it comes to abortion, evidently, the remains of an unborn human child don't have the same significance in the eyes of many as the remains of a cat or a gerbil.
Of course as we think about the defense of human life, it was the second dimension of the decision yesterday that is most important. The fact that the Court did not decide to take up the question of the constitutionality of that Indiana statute. It effectively leaves in place the ruling of the Seventh Circuit that Indiana's law was unconstitutional. Clearly in conflict with Roe and Casey when the law restricted abortion for reasons of Down syndrome, or sex selection, or race, or national origin, or disability. That is extremely disappointing. But what is really important to note is the fact that the Supreme Court is very choosy about taking up cases. Specifically, let's consider the fact that there is very good reason to hope that right now there is a five-four majority on the Supreme Court in favor of a pro-life position. That would be five justices of the Supreme Court who are probably ready to take up a direct challenge to Roe v. Wade. The question is what case will they take?
This comes down to another reality that veteran observers of the Supreme Court will well understand. Those who are trying to bring cases on appeal to the Supreme Court, they look for cases that have the right facts. This was particularly important, for example, in the situation of same-sex marriage. Those who were looking for a Supreme Court decision to legalize same-sex marriage, they were very, very careful about what case they wanted to reach the nation's highest court. They shopped the case, so to speak. They were looking for a case. They were looking for a plaintiff that fit the description they were looking for. They were looking for facts that they believed would help to buttress their case. Those looking to argue for same-sex marriage before the Supreme Court didn't want the plaintiffs in that case to be just any same-sex couple. They looked for a particular kind of same-sex couple.
But the same situation works in reverse. A majority of the Supreme Court will often look for a case that has the best facts and presents the best arguments in order to establish a lasting Supreme Court precedent.
Justice Clarence Thomas Delivers Massive Moral and Constitutional Argument Against Abortion: A Prophetic Word Against Eugenics
The silver lining you might look for in that second part of the decision yesterday was provided by Associate Justice Clarence Thomas in a very long concurring opinion that is brilliant in its constitutional argument and extremely clear in his moral argument. In his concurring opinion handed down yesterday, Justice Thomas made very clear his support for both of the Indiana laws and his argument that both are constitutional. But when it came to the second law, that is the law that restricted abortion, when it came to sex selection, or Down syndrome, or the other issues, he wrote, “Put differently, this law and other laws like it promote a state's compelling interest in preventing abortion from becoming a tool of modern day eugenics.”
Now let's just remind ourselves that eugenics, when it comes to humans, can be dated from the last part of the 19th century, Francis Galton, who was a first cousin of Charles Darwin, not coincidentally, came up with the argument that given what we now know about breeding and human evolution, it was very important that human beings strategically reproduce. Eugenics means good genes. It's the argument coming from that Greek compound that human beings should seek more children from those who are genetically superior and fewer children from those who are genetically inferior.
One of the interesting and ominous developments in eugenics was that it was the cultural mainstream in Britain as well as the United States that picked up on the argument. In his opinion, Justice Thomas wrote, “By the 1920's, eugenics had become a full-fledged intellectual craze in the United States. Particularly among progressives, professionals, and intellectual elites. He noted the public enthusiasm for eugenics waned after the Nazis made it into the horrors of the third right. But he went on to say that nonetheless it continued in the arguments for contraception, and birth control, and yes, abortion. He pointed out that Planned Parenthood President, Alan Guttmacher, after World War II, joined by other abortion advocates, quote, endorsed abortion for eugenic reasons and presented it as a means of controlling the population and improving its quality.”
Now notice very darkly that the research arm of Planned Parenthood is even now named for Dr. Guttmacher. In a chilling portion of his opinion, yesterday Justice Thomas wrote, “In 1959, for example, Guttmacher explicitly endorsed eugenic reasons for abortion. That was in his work entitled Babies By Choice or Chance.” As Thomas wrote, “He explained that the quality of the parents must be taken into account, including feeble mindedness and believe that it should be permissible to abort any pregnancy in which there is a strong probability of an abnormal or malformed infant. He added,” said Justice Thomas, “that the question whether to allow abortion must be separated from the emotional moral and religion concepts and must have as its focus normal healthy infants born into homes peopled with parents who have healthy bodies and minds.”
Pointedly, Justice Thomas also identified Margaret Sanger, who founded the organization eventually known as Planned Parenthood. She, in many ways, was the leading figure bringing about the sexual revolution in the early 20th century. He pointed out that she was also committed to eugenics calling for more children from the fit and less from the unfit. Justice Thomas noted that Sanger herself was not an open advocate of abortion, but rather of all forms of birth control. But he pointed out that her logic was eventually taken up by the organization she established that later became known as Planned Parenthood.
And looking to the operation of Planned Parenthood today, Justice Thomas wrote that it “promotes both birth control and abortion as reproductive health services that can be used for family planning.” Justice Thomas continued, “And with today's prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics. Indeed,” he continued, “the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child.” He continued underlining the fact that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” He points specifically to Ireland where the abortion rate for children diagnosed with Down syndrome approaches now 100%. He says that in the United States, the rate is now approaching two-thirds. It's 90% in Denmark, 77% in France. He goes on to say that in Asia, widespread sex selection abortions have led to as many as 160 million missing women, more than the entire female population of the United States.
In an important climax to his argument, Justice Thomas declared, “In light of the Court's denial of certiorari today, the constitutionality of other laws like Indiana's thus remains an open question.” That's extremely important. That is precisely the language that a justice of the Supreme Court would use in order to indicate that it would be his determination. And in this case, we can hope and pray that it is joined by others to see that these basic issues will be adjudicated by the Court. But not this particular law at this particular time with these particular facts. But Justice Thomas sent a very clear constitutional signal yesterday and even more importantly he sent an emphatically clear moral message.
In the conclusion of his argument he wrote, “The Court's decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right, said Justice Thomas, to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.” By the way, embedded in one of the last paragraphs of his opinion handed down yesterday, Justice Thomas articulated in one very short sentence, not only his understanding of The Constitution and abortion, but of his basic understanding of how The Constitution is to be interpreted. On the Supreme Court right now, arguably Justice Thomas is the most strict when it comes to strict constructionism and the interpretation of The Constitution by its words and the intentions of its framers.
That sentence is this: “The Constitution itself is silent on abortion.” That is a stunning statement. It's extremely short. It's extremely clear. What Justice Thomas was saying in that sentence is that going back to Roe v. Wade, the Supreme Court of the United States had no right or responsibility whatsoever to rule on the question of abortion in the first place.
Liberal Christianity and Abortion Rights: A Longtime Partnership Revealed
But next we turn to another article getting a lot of attention in the national conversation. This is an article by Emma Green at The Atlantic. The headline: “A Pastor's Case for the Morality of Abortion.” The subhead in the article, “Jes Kast, a minister in the United Church of Christ, believes the procedure should be fully legal and accessible. Her path to that position has been complicated.” Emma Green introduces what becomes a conversation with Jes Kast, who's identified as a pastor in the United Church of Christ. In a tweet explaining the article, Emma Green said that she wanted to indicate that there was more complexity beyond what she identified as the traditional binary between a secular pro-abortion movement and a religious pro-life movement. Thus she is looking at a woman identified as a pastor in the United Church of Christ who makes a theological case for abortion.
In introducing the conversation, Green writes, “Kast has not always supported abortion, however—far from it. She grew up in a conservative-Christian community in West Michigan, attended an evangelical church as a teenager, and participated in anti-abortion protests. Her process of coming to support abortion rights has been long, and definitive. Kast no longer believes there are any circumstances under which it is immoral to get an abortion.”
We are told, “She has been open about her views with members of her new church in State College, Pennsylvania, and she told me she would feel comfortable preaching about abortion from the pulpit.” In summarizing the situation, Green writes, “Kast’s experience shows how widely people's moral perspectives on abortion can vary, including among clergy.”
Well, the conversation with Pastor Jes Kast continues in which she makes very clear that most important point that Emma Green underlined and that is that Kast no longer believes there are any circumstances under which it is immoral to get an abortion. Emma Green seemed somewhat surprised by the answer she received to her question, “Do you think there’s any context in which it’s immoral to have an abortion?” Kast responded, “That’s a really great question. Let me think if I do think that or not. Let me just be really thoughtful about that.” Green paused and said okay. Then Kast responded, "I don’t. I really don’t. I don’t think I do. For me," she said, "It’s a healthcare issue."
Now it's hard to imagine an interview that would be more perfectly timed to observe in the aftermath of thinking about the Supreme Court's decision yesterday and Justice Thomas' very important moral message on the danger of abortion and eugenics. Here you have a United Church of Christ pastor making what she claims is a theological case for abortion in which says baldly and boldly, "I don't think," she says, "I don't think that there is any context in which it's immoral to have an abortion." But the article really claims a theological reason for abortion, what would that theology be? Well, Kast points out that her theological principle here comes down to bodily autonomy. She frames this as a justice issue, asking, “Isn't that justice? How would God ever infringe upon that?”
Well, let's just think about that for a moment. As you follow the flow of biblical history, it turns out that God infringes upon what might be defined as our bodily autonomy over and over again. He does so in the beginning by making very clear that he created us as male or female. He also makes very clear that he created us sexual beings for the context of marriage as the union of a man and a woman. And then throughout the law as given in the Old Testament and as repeated in the New Testament in the law of Christ, he puts restrictions upon our sexual activities, and sexual behaviors, and sexual relationships. Those kinds of boundaries are very clear in scripture. So clear that what it takes to overcome them is an argument that replaces biblical authority with the authority of some kind of modern knowledge. In this case, it's the modern conception of bodily autonomy. That turns out to be her most basic theological principle. And she ties it to the imperative of justice.
She fleshed that out a few sentences later when she said, “When people talk about our body is a temple of God and holy, I see that as I have the right to choices over my body and the freedom to make the decisions that are right for me.” Of course, the biblical text doesn't merely say that our body is a temple of God and holy. Instead we are told that for Christians, our body is the temple of the Holy Spirit. And the Holy Spirit draws us onto Christ and obedience to Christ. That's incompatible with this idea of bodily autonomy.
But bodily autonomy as a basic theological principle is absolutely perfectly timed and tailor made for the moral and sexual revolutions. In the interview, Pastor Kast said, “In some ways I feel I have repented from a view of Christianity that I don’t believe is true anymore. I believe I am walking in faithfulness. I think,” she continued, “there’s this view that progressive liberal Christians don’t take Scripture or theology seriously. That couldn’t be farther from the truth.” She said, “I take Scripture and theology, I believe, more seriously now.” But that's the kind of argument that we've understood and recognized now for decades. It's the argument that taking the Bible seriously does not mean accepting its authoritative message.
Over and over again, that language becomes a formula for accepting some kind of input from the Bible before invalidating much of the Bible and its explicit teachings by some higher, modern authority. Back in the 1980's, I can remember theologians and biblical scholars saying that they took the Bible seriously, but not literally. Well, bible believing Christians can figure that sentence out immediately.
But tying these two big stories together, it is important to recognize that liberal religious figures have been supporters of abortion ever since the early years of the 20th century. Back in 1921, religious leaders came to form the American Birth Control League. Again, Margaret Sanger, as historians indicate, reached out to the religious community looking for support for her vision of eugenics and birth control looking to liberal theological leaders in Christianity and in Judaism.
Before Roe v. Wade in 1967, liberal clergy joined together in what was known as the Clergy Consultation Service on Abortion. It was established in New York City by Howard Moody, largely by his leadership, who was ordained in the American Baptist Churches and, no coincidence here, in the United Church of Christ. The group made explicitly pro-abortion arguments. It was largely superseded by another organization formed in 1973, the very year of the Roe v. Wade decision. It was originally known as RCAR, the Religious Coalition for Abortion Rights. In 1993, it changed its name to the Religious Coalition for Reproductive Choice. That's when that language changed in the movement as well.
Back then, the pro-abortion movement was trying to make the argument that it had some kind of theology on its side and some form of the religious establishment, issuing publications such as one entitled Prayerfully Pro-Choice. They started using the word “holy” in front of words like work and then choice referring to abortion and those who perform abortions. Writing a history celebrating the liberal clergy alliances supporting abortion, Tom Davis wrote several years ago, “Whatever the shifts in cultural emphases in political agendas when it comes to human sexuality, the theological face of the opposition is exactly the same as in the past, a belief that all sexual intercourse must occur within heterosexual marriage and an iron conviction that life begins at conception.”
That sentence is profoundly correct. What we're looking at here with this story is the reality of the huge theological divide that has existed in American Christianity going back to the early 20th century. It's a basic divide that as we must say honestly comes down not only to two different interpretations of Christianity, but as is recognized by both the right and the left, two rival religions.
Pregnancy Kills and Abortion Saves? Confronting the Logic of an Abortion Doctor
Finally, I make reference to another article on abortion that has received a good deal of conversation. It was an Op-Ed piece wrote in the New York Times by Warren M. Hern, identified in the beginning of the article as a physician and epidemiologist who specializes in late abortion services. Just remember that. This is an abortion doctor who performs late abortion services. The headline in the article is what caught a lot of attention: “Pregnancy Kills. Abortion Saves Lives.” Dr. Hern argues, “Pregnancy always comes with some irreducible risk of death.” He argues that the risk of death from pregnancy is much, much higher than the risk of death from abortion. That is, legal abortion, thus he's making the argument for legal abortion under just about any circumstance and at any point in the baby's gestation. Again, we're told that he specializes in late abortion services.
He looks at the math of the risk to a woman if she's pregnant or if she's undergoing an abortion. He summarizes, “Pregnancy is dangerous, abortion can be lifesaving.” What do you do with an argument like this? Well, let's just go back to some basic Christian reasoning that was worked out long before the legalization of abortion was ever contemplated. It comes down to this. Pregnancy is a normal, healthy human function. Pregnancy is not a disease and a baby is not a tumor. Instead it is the gift of God and pregnancy is a normal human condition for females. It's easily biologically explainable. It comes about by normal physiology. It is not a disease state. It is not a problem that needs to be fixed. But the righteous practice of medicine does not see the baby as a disease or a problem, but rather challenges to the baby's or the mother's health as the situation that is to be remedied, or even more importantly, prevented.
But this kind of article with a headline, “Pregnancy Kills. Abortion Saves Lives” shows how the entire reality of the world can be turned upside down if one is filled with the absolute imperative to defend abortion because abortion is not a natural condition. Abortion is not a moral act. Abortion is the killing of an unborn human being. It is, by definition, an immoral act. It is, of course, the killing of a baby, but it is also the termination of a normal, healthy human condition. A doctor who gets that wrong and a society that gets that wrong may have reached the point at which there is simply no recovery.
Thanks for listening to The Briefing.
For more information, go to my website at AlbertMohler.com. You can find me on Twitter by going to Twitter.com/AlbertMohler. For information on the Southern Baptist Theological Seminary, go to SBTS.edu. For information on Boyce College, just go to BoyceCollege.com.
I'll meet you again tomorrow for The Briefing.