The Briefing

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Supreme Court of the United States

June Medical Services L. L. C. v. Russo

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The Briefing

Tuesday, June 30, 2020

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This is a rush transcript. This copy may not be in its final form and may be updated.

It's Tuesday, June 30, 2020. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

A Major Setback in the Defense of Life: Supreme Court Strikes Louisiana Abortion Law

Once again, the Supreme Court and the issue of abortion have made headline news. And, once again, lamentably so. The decision handed down yesterday was a 5-4 decision in the case, formerly known as June Medical Services v. Russo. It has to do with contested legislation in the state of Louisiana now signed into law by the governor of that state that restricted abortions under the circumstance that a doctor performing an abortion must have local admitting privileges to a nearby hospital. Now, of course, that put a restriction on abortion, but it also points to the fact that it was motivated not only out of concern for abortion, but out of concern for the health of the woman who might be seeking an abortion and ought to have at least the assurance of medical services nearby.

But, once again, what we see here is the monomaniacal commitment to abortion, to the killing of the unborn on the part of the abortion rights movement, and on the part of the abortion rights industry. You understand how those two are connected. More on the industry in just a moment. But as you look at this decision, it's hauntingly similar to a decision that came down four years ago. To be precise four years and three days ago by the very same court in a 5-3 decision in a case that was known as Whole Woman's Health v. Hellerstedt, the Supreme Court four years ago, struck down a very similar Texas law. Well, what's changed in four years? Why had those in the pro-life movement been encouraged to think that the case in 2020 from Louisiana might turn out differently than the case in 2016 from Texas?

Well, there are a couple of big differences. For one thing, the composition of the court itself. Back in 2016, Justice Anthony Kennedy was still on the court. And from the Casey decision in 1992 forward, it was very clear that he was going to basically protect abortion rights, allow some restrictions, but not restrictions that he felt basically undermined the abortion ruling of Roe v. Wade in 1973. The case back then was before an eight member Supreme Court because of the empty seat due to the death of the late Justice Antonin Scalia. But had Scalia been alive and had voted with the conservatives, it was still would have been a 5-4 losing decision. But as you move to 2020, there were hopes that the situation would be different. There were three huge reasons why. In the composition of the court, Anthony Kennedy is not here, but two justices appointed by Donald Trump are now on the court, Justices Neil Gorsuch and Brett Kavanaugh.

Both of them voted to uphold the Louisiana legislation restricting abortion. Something else that was different, the actual legislation was written somewhat differently. It is not actually word for word the same as was claimed by the courts' majority yesterday. A third issue is this, the question of standing. There was every reason to believe that the Supreme Court of the United States should have turned down this case even for its consideration, because after all the people who were bringing the charge against the Louisiana legislation were not women seeking an abortion, rather they were those speaking on behalf or seeking to stand on behalf of the abortion clinics themselves. That should have been recognized as a violation of the Supreme Court's own definition of standing, that is the right to bring an issue before the Supreme Court. This case should never have come before the Supreme Court, but nonetheless, the Supreme Court took it. And once it took it by a 5-4 decision, it decided yesterday to uphold abortion rights, once again.

For conservatives, for the pro-life movement, the greatest disappointment in the decision yesterday was the math 5-4, but there's one number in the five that is most disappointing of all. And that is the Chief Justice of the United States, John G. Roberts, Jr. who was appointed as a conservative to the Supreme Court by the then president of the United States, George W. Bush. In the decision yesterday, Justice Stephen Breyer wrote the majority opinion, and in that opinion, he was joined by the three other classical liberals on the Supreme Court, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan. Now you're doing the math. That's only four. There was a fifth vote on behalf of striking down the law. That was the vote of the Chief Justice, but he did not join in the majority opinion.

Rather he issued his own concurring opinion, voting with the majority. The majority opinion written by Justice Breyer with the concurrence of Ginsburg, Sotomayor, and Kagan is a classic defense, you might just say of Roe v. Wade. It is the classic argument, not only having to do with the law in Louisiana, but the predictable kinds of arguments that you would expect from those who are determined at all costs who uphold Roe v. Wade and thus a woman's so-called right to an abortion.

The most crucial issue came down to that swing vote. And once again, the swing vote was the Chief Justice of the United States. And in the decision that was handed down yesterday in his concurring opinion, to be honest, all that really matters are a couple of paragraphs. Both of them are on page two of his concurring opinion. He stated, going back to 2016, “I joined the dissent in Whole Women's Health and continue to believe that the case was wrongly decided. The question today, however, is not whether Whole Woman's Health was right or wrong, but whether to adhere to it in deciding the present case.” That's simply breathtaking when you understand what the Chief Justice of the United States has said here.

Back in 2016, he voted to uphold the Texas legislation. He disagreed with the five justices on the other side who voted to strike down the legislation as unconstitutional. But then in the decision handed down yesterday, he switched sides. He voted to strike down a law that was basically the same as the law that he upheld four years previously from Texas. Why did he do that? How could he do that justify doing that? Well, it's because, as we saw in that paragraph, he says that the issue is now upholding the precedent of the court, not whether or not the case was basically a matter of constitutional purview in the first place. That's a very dangerous, extremely revealing statement. What you see here is what many have accused the Chief Justice of now prioritizing above all else and that is his own sense of the dignity of his court.

Later there on page two, the Chief Justice wrote, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat the cases alike. The Louisiana law imposes a burden on access to abortion, just as severe as that imposed by the Texas law for the same reasons. Therefore, Louisiana's law cannot stand under our precedence.” Now here's the problem. As you think about the role of the nation's highest court, stare decisis, that is let the judgment or the decision stand is indeed important. You don't want a court that is recklessly zooming about on issue after issue. The entire civilization, our entire society, our economy, our political system, we all depend upon a basic continuity in the decision making of the nation's highest court. But the nation's highest court has not only sometimes, but often been fundamentally wrong.

One of the blots on our nation's history would be the Dred Scott decision handed down in 1857 that ruled that African-Americans in the United States were not full citizens. Clearly the court erred in that decision and it had to reverse itself later in order for African-Americans to be understood as American citizens in full. You have a situation in which the court is made up of the human beings who comprise it. And that means that every one of them is fallible and you put the nine of them together and together they are fallible. But when you're looking at a situation such as happened yesterday with the Supreme Court's Chief Justice saying, I believe that the court erred four years ago, but I intend to stand on that error now, what you see is the elevation of precedent beyond all common constitutional or moral sense.

Let's just consider the issue of historical proximity. Let's go back to the Dred Scott decision in 1857. It was just four years later that the United States was in a civil war in 1861. Would that have been too early to have reversed the Dred Scott decision as precedent? Obviously not. It was abhorrent when it was handed down by the court. It should have been morally and constitutionally speaking reversed as soon as possible. By the logic of Chief Justice Roberts yesterday, there needs to be what you might call some kind of decent interval between conflicting decisions of the United States Supreme Court. Once again, it basically comes down to his personal judgment.

One of the things to watch here is that Chief Justices of the United States understand that they bear a certain weight of history. We refer to epics in the history of the United States Supreme Court by the Chief Justice who defined that era. And so we think of the Warren court, we think of the Burger court, the Rehnquist court, and now we speak of the Roberts court.

As you look over time, the institutionalization process in Washington seems to indicate that the longer one sits on the court or in politics in that kind of position, the more one tends to be concerned about one's place in history. And that picture is compounded by the fact that if you look at higher education at academia today and the discipline of history, those are the people that a Chief Justice of the United States will have to assume will do the writing of that history. And that's not going to end up very well for conservatives and conservatives who fear that ought not to go to Washington. They ought not to seek election to any office and they dare not take any oath of office if their primary concern is going to turn out to be how future liberal historians are going to evaluate them.

Part

A Long Battle for Human Dignity: What Does Yesterday’s Supreme Court Decision Mean for the Pro-Life Movement?

But for the pro-life movement in the United States that had staked a great deal of hope on the case handed down yesterday, there was also a chilling signal sent in three of the dissenting opinions, the opinions dissenting from the majority handed down by Justices Samuel Alito and Neil Gorsuch and Brett Kavanaugh.

There was encouragement only from the solitary dissenting opinion issued by Justice Clarence Thomas. What's the issue here? Only Clarence Thomas, only Justice Thomas, dared to bring the abhorrence of abortion into his descending opinion. The other three conservative justices did not raise the issue of abortion directly. Justice Thomas did when he concluded one paragraph by writing, “As the origins of this jurisprudence readily demonstrate the putative right to abortion is a creation that should be undone.” By creation he meant an illegitimate ideological creation of a liberal court in the 1960s and ‘70s. He called for that invention or creation of an artificial right to be undone. He addressed the issue of abortion and the court's central argument in Roe v. Wade directly. Justices Alito and Gorsuch and Kavanaugh did not do so. Does that mean that they are unwilling to do so? I don't believe that that's so, but the reality is they did not address the issue of abortion in their own descents. Rather, they looked at other dimensions, constitutional and statutory dimensions of the Louisiana law.

Let's step back and ask about the response to yesterday's decision. The pro-abortion movement was ecstatic, overwhelmingly positive, somewhat surprised in the result. On the other hand, the pro-life movement was tremendously disappointed and also surprised by the vote. There was every reason to believe that it would have been a 5-4 decision the other way. The Chief Justice of the United States was the swing vote. And his swing was to the pro-abortion argument. He's not going to say that, of course, but the reality is that that is the substance and the effect of his decision.

It's important for the pro-life movement in the United States to recognize that not everything is a clear win or loss. We live in a society in which it is often claimed that this case is a win. That case is a loss. And this comes down to every political development. The New York Times yesterday ran a headline, “After Setbacks, a Surprising Win for the Abortion Rights Movement.” USA Today looked at the opposite, “Supreme Court Strikes Down Abortion Clinic Restrictions in Louisiana, a Defeat for Conservatives.” Now are those headlines true? Yes, they are. They're accurate. It was a win for the pro-abortion movement. It was a loss for the pro-life movement. But as you're thinking about the long haul, it is not just a matter of wins and losses. It is more than anything else, a matter of contending for the dignity and sanctity of every single human life at every point of development, at every pressure point in our society where that dignity and sanctity is undermined. That's what makes the Supreme Court so absolutely important, but the Supreme Court does not stand alone in bearing this responsibility.

It comes down to the United States Congress, especially on issues such as the Hyde Amendment. That is the amendment that goes back to the 1970s that has been included in every federal budgetary apparatus thereafter that prevents direct funding of abortion from federal taxpayer money. It's an absolutely crucial issue. It's an issue in the 2020 presidential campaign, because when you look at President Trump, he has said that he will uphold the Hyde Amendment when it comes to former Vice President, Joe Biden, he switched his position of decades just a matter of months ago, saying that he will now do everything within his power to bring an end to the Hyde Amendment. That will have a direct impact upon abortion, potentially into the hundreds of thousands of abortions over the course of the next several years.

One of the other daunting realizations for conservatives in the United States is the fact that it is fundamentally impossible to know exactly how to predict how a judge or justice might rule on any particular case, at any particular time. Instead, conservatives have focused on the basic constitutional approach. The method of interpreting the Constitution that is held by every one of the nominees by Republican presidents. The vetting process for those nominees has to do most importantly with looking at how they have ruled on similar issues in their previous legal experience and looking at how they will not only interpret the Constitution, but how they will say on the record that they will interpret the Constitution.

Some conservatives are immediately asking, what is wrong? What is broken with our judicial nomination process? And the answer soberingly is that nothing is fundamentally broken. You're dealing with the human equation. As you look at the vetting process, especially under the Trump administration, you have looked at a very serious, extremely thorough process of vetting. You're looking at the Federalist Society and others having a great deal of input into the eventual nominees to the federal courts, in general, but to the Supreme Court, specifically. Nothing is broken with the process except one thing, every single human being involved in the process, every single judge or justice on any court, every single person who will come before any of those courts is a fallible, sinful, human being. Conservatives of all people and Christian conservatives, in particular, should be those who are forewarned against any sure fire promise of how human beings are going to act under any circumstance. We certainly do not believe in an infallible judiciary. We do not believe in an infallible or a perfect process.

The tragic issue here raises the question as to whether or not we will ever in our lifetimes see a reversal of the Roe v. Wade decision of 1973. The sad realization is that for years, it has been understood that Roe was more likely to be nibbled apart or subverted from the edges than rejected or reversed outright. And that is because the court very, very rarely reverses explicitly a precedent of that kind of status. But the law that came from Louisiana was exactly the right test case for whether or not that theory would turn out to be true. It was exactly the kind of restriction on abortion that should have allowed a pro-life majority on the Supreme Court to move forward incrementally. That is, if anything, the saddest disappointment from Monday's decision. Rather than making a small step forward, we ended up, as you look at this decision as a whole, taking a large step backwards.

But conservatives and those in the pro-life movement, Christians in the pro-life movement, in particular, need to remind ourselves that we knew all along, going back to 1973, and at every point thereafter that it was going to be a very long battle. It would be indeed a very long war. It would be an enduring struggle that would tax everything we are and everything we can bring to it in order to reverse the culture of death and the atrocity of abortion in American public life. If the pro-life movement caved after every defeat, we would never have made any progress because success, wins, as the headlines might call them came, very, very sparingly over a very long period of time. Roe v. Wade, let me remind you, was 47 years ago. There is every reason for Christians in the United States to be bitterly disappointed about Monday's decision, but we dare not let that bitter disappointment turn into a disengagement from the entire process, because what is at stake is not merely wins and losses before the nation's highest court, or any other arena of politics or public policy. What is at stake is the infinite value of every single human life. Every single human being made in God's image. That's what we're really looking at here. And from that battlefield, we dare not run.

Part

The False Logic of No-Fault Divorce: British Government Set to Reform Divorce Law

But next, we're going to jump to a very different issue. We're going to go across the Atlantic, dateline London, where the British government is now pushing through legislation to allow for so-called no fault divorce. The issue of divorce, controversial there as here, but we also have to note not as controversial as it should be there or here. Now, the background of this is the fact that the current conservative government headed by Boris Johnson, which did not include the issue of divorce revision in its platform, as it ran in the last general election, nonetheless is pushing through not only the House of Commons, but right to the House of Lords, and eventually to royal assent, as it is called, legislation that would fundamentally redefine divorce in the United Kingdom.

As the Telegraph, a newspaper in London, indicates in its headline in the United Kingdom this divorce revision is often referred to as a mechanism for quickie divorces. As the Telegraph tells us, “The reforms would mean that a no fault divorce could be granted to a couple after a wait of just six months rather than after a separation by agreement lasting two years.” Now, in reality, it's a more substantial revision of Britain's divorce law than just that. It comes down to the fact that, as in the United States, an entire civilizational edifice that had been built to defend marriage from its enemies is now being dismantled wall by wall and brick by brick until there is very little defense whatsoever. And, of course, we have seen that all of these changes come hand in hand. They often come just over a period of a few years on the calendar, no fault divorce, and then, of course, even the legalization of so-called same sex marriage.

If you're going to tamper with the defenses of marriage built up over millennia, then you're probably going to let all of those defenses lapse, if not tear them down yourself. It is really interesting to note the kind of arguments being used because even though it comes a full generation in the United Kingdom, after it came in the United States, the argument is that the current divorce law simply brings about too much bitterness with people having to bring charges against one another, and for the good of the couple, and it is often argued their children, divorce should be now made just no fault. Much easier to obtain and much quicker to obtain. This also comes with the chilling news that in the United Kingdom, in the very same country requests for the initiation of divorce proceedings have gone up 40% since the onset of the COVID-19 pandemic, 40%.

There is at least some token opposition, and this includes the former treasurer of the Tory party, the conservative party in Great Britain, Lord Farmer, who said that the new legislation was “appallingly insensitive to the national mood, but also deeply irresponsible.”

He went on to say that the very last thing they should be doing, meaning the government, is changing the legal framework to enable partners to divorce unilaterally, thereby sending a strong and staggeringly unhelpful signal about the commitment of marriage. In language that itself evokes a more gentle time Lord Farmer said that the government needs to recognize “that this bill dismantles the meaning of commitments people made to each other in gentler times.” These are not times at all gentle to marriage. And the British government is following the same false logic that led the United States into the disaster of so-called no fault divorce.

Part

There is No Secret Code to God’s Word: Michael Drosnin, Author of “Bible Code” Books Dies at Age 74

But finally for The Briefing today, I want to point to an obituary that ran this week in the New York Times. The obituary headline, “Michael Drosnin, 74, Who Claimed to Find Secret Clues Encoded in the Bible.” It was Drosnin who wrote the bestselling book, The Bible Code. It emerged in 1997 and using a form of mathematical analysis, given all the language of the Bible, Drosnin claimed to have uncovered remarkable encoded clues. He offered a way of decoding the Bible in order to understand its secret meaning.

Drosnin's work was dependent upon the previous research undertaken by a team of Israeli mathematicians who laid out the more than 300,000 characters of the Hebrew Old Testament “like a giant crossword puzzle, and then performed a skip code computer search. They discovered uncanny combinations. ‘Kennedy’ appeared near the word ‘Dallas.’ Hitler's name written upside down appears 20 rows from Nazi written backward and so on.” Here's the nonsense in all of that. As people pointed out, you could come up with virtually the same results from Herman Melville's novel, Moby Dick, or from the white pages of the phone book. But, then again, not many people know of either the great white whale of Moby Dick or for that matter the anachronistic white pages of the phone book. The reality is if you take any kind of text and reduce it to this kind of mathematical code, you can come up with all kinds of amazing findings.

But the basic problem is this, the Bible doesn't need any kind of decoding. It isn't written in secret code. The Bible is God's Word and God gave it to us not that we would have to find a code, but that we might know him. Nowhere in Scripture are we told that Scripture is presented as a hidden code. Instead, we are told that Scripture is inerrant, and infallible, and perfect. It is living and it is clear. God gave it to us in order that we would understand it, not in order that we would be setting ourselves about in the attempt to find a secret code.

But here's another thing about human frailty and fallibility. If you do claim to have found a secret code, you can write a bestseller and many people will buy your book, including, sad to say, many Christians.

As the Apostle John tells us in his letters, “These things are written that you might know,” not in order that you might find just a secret code to enable you to see the mystery. Or as the Apostle Paul said in 2 Corinthians, what we have in the new covenant in Christ is an unveiling such that the mystery is no longer hidden. In Jesus Christ, it was made completely visible.

Drosnin, by the way, was an atheist who didn't believe in any form of divine revelation. He also had, as his family indicated, absolutely no affection for the readers who bought his books by the millions. He had not found the secret code to understanding the Bible, but he evidently did find the secret code to writing a million dollar making bestseller.

But just remember this, “The grass withers, the flower fades, but the Word of the Lord will endure forever.”

Thanks for listening to The Briefing and not only for today, but for the entire 2019-2020 season. I want to thank you for investing this time with me. I hope you find The Briefing helpful. I do this and invest so much in it in hopes that it will serve the church of the Lord Jesus Christ in order that we all together may not only think more clearly, and even just think more biblically, but live more faithfully. Again, thank you for listening to the 2019-2020 season of The Briefing.

I'll be taking that break that comes every year in the month of July, and you can be certain that a lot's going to happen in July that I'm going to wish that I could talk about. I'll feel responsible to talk about, but we'll have to hold that until August.

The end of the season also brings an opportunity to say thank you to those who work with me on The Briefing, without whom this would not be possible. Caleb Shaw is the producer. Caleb and his wife, Ruthie, had more than a podcast on their minds this season, as the Lord gave them a little baby girl named Annie new for the ‘19-‘20 season.

Ryan Modisette is the ever capable and always willing engineer for the program and the season brought blessings to him as well, including the gift of Vicki, his new wife. Vicki and Ryan got married during the course of this year.

John Austin is my chief of staff who makes everything work within my office. And Cory Higdon works with me on research and other projects. To all, including a team of the most amazing student interns, I am very thankful, and I'm thankful on your behalf as listeners to The Briefing.

And I want to wish you, every single one of you, a God-blessed season as we go into the summer of 2020 and especially this month of July. Again, I speak with gratitude. Thank you for being a part of the family of The Briefing. Thank you for listening. Thank you for praying for me. Thank you for recommending The Briefing to others.

Let me also remind you that, Lord willing, we will be back with a new season of The Briefing beginning on Monday, August 3, 2020. That's Monday, August 3, 2020. Until then, may God bless you.

For more information, go to my website at AlbertMohler.com. You can follow 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, Lord willing, on Monday, August 3, 2020, for The Briefing. Until then, God bless you.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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