The Briefing

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The Briefing

Wednesday, December 1, 2021

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It's Wednesday, December 1st, 2021.

I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

December 1, 2021: A Day to Go Down in History As Supreme Court Hears Most Important Abortion Case In A Generation

Seldom does a day begin and you know that history will be made on that day. But today, nonetheless is one of those days. We know that today is going to be historic because at 10:-00 today at the Supreme Court of the United States, oral arguments are going to be held in the most important abortion case in a generation, a case that genuinely presents a direct threat to the Roe v. Wade decision as precedent, that infamous decision that was handed down 1973 legalizing abortion.

The case that will be argued today before the court is known as Dobbs versus Jackson Women's Health Organization. It's a case coming from Mississippi. It has to do with the fact that three years ago, the State of Mississippi adopted a restrictive abortion law, not just any law, but an abortion law that is establishes that there is no fundamental Constitutional right to abortion. That is the issue that is being presented to the Supreme Court. It's not a sideways glance at Roe v. Wade. It is a direct frontal challenge to that horrifying Supreme Court precedent, a precedent that has led to death by the multiple millions.

Pro-life Americans, and in particular, American Christians have to understand how long we have been waiting for this day, how long we have been waiting for the Supreme Court to be presented with this kind of question, for the court to take the case. There is no doubt that there is encouragement in the fact that a sufficient number of justices agreed to consider this case, because fundamentally, there is no reason to consider this case unless Roe itself is at stake. The pro-life movement has been working at this for nearly 50 years and the Roe v. Wade precedent is almost 50 years old. It was handed down January the 22nd, 1973.

On that day, the Supreme Court of the United States irrigated to itself the right to declare that the Constitution which never mentions abortion, nonetheless, supposedly guarantees a woman's right to an abortion. Now, Roe v. Wade was often described as being conditional. That is to say the decision artificially divided the period of human gestation or pregnancy into three different trimesters. But effectively, it was abortion on-demand. Even as the state was granted increasing authority through those trimesters to defend that unborn life, the reality is that functionally, Roe v. Wade was basically the legalization of abortion on-demand, but it hadn't come through Congress.

It came at a time when at least about half of the states had criminal statutes on the books against abortion. It did not come through the democratic process. It came by a decree by seven justices of the nine on the United States Supreme Court.

Those oral arguments are going to be held today and it's important to recognize that the oral arguments are where the case is formally presented before the justices. The court has already decided to take the case and there have been a lot of legal briefs already submitted in the case. In writing, both sides in the case have already had their opportunity to present their arguments. But oral arguments are where before the sitting justices the case is made and it is made in such a way that the justices have an opportunity to ask questions or to interject or to make comments.

Now, it's a very formal process as befits the dignity of the highest court in the land. It is the very apex of our Constitutional order when it comes to the judiciary. But at the same time, you do get some hints of what is going on in the minds of the justices. It is very, very dangerous to try to make an immediate decision or prediction about where the case is likely to be decided, or which justices are likely to decide in which manner. There is more at stake than, for example, which will be the winning side, which will be the losing side.

The reality is that the official opinion or the decision of the court, the majority opinion that is officially registered by the court, that provides often an argument or a framework or a legal interpretation. In the case of Roe, that was particularly deadly, we have to hope that in the case of Dobbs, it is a powerful statement, not only when it comes to the sanctity of human life, but when it comes to America's constitutional order.

Now, we need to remind ourselves of exactly what is at stake in this case. We've said that Roe v. Wade is at stake. Now, tomorrow on The Briefing, we will go over what has happened in the oral arguments, how the arguments were made and what kind of response seemed to come or not to come from justices on the court. But today we just need to place in historical context and we need to understand that the case is a specific question as the court considers it. It's not just the general question of abortion. It's never just the general question of the Constitution. It is a specific question.

The specific question in this case is whether or not the state of Mississippi has a right to a adopt a law protecting fetal life. That's the presenting issue. Yet, of course, abortion is the big issue here. Because if Mississippi has this right as a state, then other states do as well. Roughly half of the states right now either have laws on the books that would make abortion illegal upon the disappearance of the Roe v. Wade precedent, and there would likely be state by state fights beyond that.

So is this a case about abortion? Well, in the larger sense, profoundly yes, it is about abortion. The specific question is about the constitutionality of a Mississippi statute enacted by the legislature, signed into law by Mississippi's governor. But that question has everything to do with whether or not states are recognized to have the Constitutional authority to legislate any restriction or ban on abortions.

Now, one of the things Christians need to recognize here is that when you are looking at this kind of specific question, it can never be divorced from the larger moral context. In other words, in this case, the interpretation of the Constitution is quite literally a matter of life and death. We have to understand that what is at stake here is not just the issue of abortion or the future of abortion in the United States, but it is also whether or not the court and thus the legislatures understanding the rulings of the court will have to operate upon the language, the actual text of the Constitution, or are free to invent new rights.

That's exactly what the Supreme Court has done since the 1960s. It has led in a line that you can draw throughout successive court decisions from those contraception decisions in the 1960s to Roe v. Wade in 1973 to the court's irrigation of authority to itself to redefine marriage in 2015. It is a straight line of successive precedents. Again, just to state the obvious, the Constitution of the United States does not define marriage. The framers of the Constitution would've considered that an irrational thought because everyone knew what marriage was, period.

But the Supreme Court has declared that it found a right for same sex couples to marry in the Constitution. It's not there. They just declared it to be there. That again is upon the precedent that goes back to Roe and beyond Roe to those other decisions in which the prevailing justices came up with, invented new rights, these artificial rights. But what we're looking at in the case today in the issue that will be presented to the court is, again, not just this Mississippi law, but how the Constitution is to be read, whether or not the words of the Constitution are themselves binding and limiting upon the power of the federal government.

Part

History and Constitutionality of Abortion Debate in American Public Life: What Led to Roe v. Wade in 1973? And How Did We Get to Dobbs v. Jackson Women’s Health Organization in 2021?

But in order to understand this, we also need to put it back in history. We're talking about a decision that was announced, handed down by the court on January the 22nd of 1973. How did the case get there? Well, the issue of abortion had been causing consternation in the United States for a matter of years, but we need to recognize for only a relatively short number of years, basically, the last half of the 1960s into the early portion of in 1970s. Now, why was it not controversial before then? Well, it is because just about every single political leader, say up until 1975, would've denied any support for abortion.

You go back to a family that is now, at least in the main associated with abortion rights, you could consider for example, the late United States Senator Edward Kennedy, remember that his brother, John Fitzgerald Kennedy, elected president in 1960, was never an advocate for legalized abortion and is was not really even a controversial issue in 1960. You won't find abortion in the Democratic platform in 1960. You won't find abortion in the Republican platform of 1960, but you will find it at the center of America's moral debate by the time the 1960s came to an end.

But something else had become very apparent to Americans by the end of the 1960s, and that was that there was going to be no nationwide legalization of abortion through the legislative process. Congress was not going to be able, it would not have a sufficient amount of political support to move forward in legalizing abortion. Furthermore, those laws were understood to be the territory of the 50 states and those states were divided. You had liberal states that had fairly recently adopted liberal abortion laws, but you had a majority of the states that had very conservative abortion laws.

So here's what the advocates for abortion understood. They had to go around the legislature. They had to go around Congress. They had to go around, in the main, the state legislatures, and they had to go to the federal courts seeking to gain by unilateral action of the courts what they could never have gotten through the political process. Notice how that same pattern has pertained. Again, you can fast forward from the Roe v. Wade decision in 1973 to the Obergefell decision legalizing same sex marriage in the year 2015. Even in 2015, there is no way that there would've been sufficient political support in both Houses of Congress to adopt any kind of federal legislation defining marriage as anything other than the union of a man and a woman.

But now we go back to the early 1970s. Pro-abortion advocates are looking for a case. They're looking for a client. There's a fascinating and rather dark story about how they found the client, eventually understood by the court identified as Roe. Of course, there was a second abortion litigant known as Doe. The Roe and Doe decisions together were the dynamic transformation of America on the issue of abortion. But you also had the fact that the case had to begin somewhere. It had to be a challenge to a specific law. Eventually, the pro-abortion side decided on a challenge would come from the State of Texas. It would actually come from the City of Dallas or the Dallas Area as a county. It would come in the name of a case that would be Roe v. Wade.

Now, again, Roe was a pseudonym for the woman who was the plaintiff in the case. The argument was made that she sought an abortion and was unable to get one because of this restrictive and the advocates argued unconstitutional law banning abortion, restricting abortion there in Texas. The case is known as Roe v. Wade because of Henry Wade, who was the district attorney in Dallas. As district attorney, he had to defend the law. That was his responsibility. It turned out later, by the way, that he was identified as a rather liberal Democrat who was not anti-abortion. But as district attorney, he had to defend the law and thus the case is now infamously known as Roe v. Wade.

We also know a great deal about how the decision came about. In the case, a Roe v. Wade, there was not one day of oral arguments. There were two. You ask the question, why would there have been two? Well, it's because there was transition on the court between the time that the first oral argument was held and that the case was decided by the court. Because there was a new justice on the court, there was a decision to go back and hear the case again. Two days of oral arguments, that also explains why this case was handed down in January, rather than when most of the big cases are handed down in June.

That is because there was actually a considerable amount of time for when the court decided to take the case and when it eventually ruled. But that meant that it is now January 22nd, 1973 that is truly a day that will live in infamy. We also know that the prevailing decision, the majority opinion in this case written by Justice Harry Blackmun was actually based on an invented understanding if human pregnancy. Human pregnancy is, on average, just about nine my months. However, there is no biological transition between three so-called trimesters. Breaking up pregnancy into three trimesters of three months each is actually a distinction that was made in order to come up with an argument for how, especially in that first trimester, abortion on-demand should be legalized.

Looking at the Roe v. Wade decision, there is precious little about the Constitution itself and that has led even many liberal judicial and Constitutional scholars to the acknowledgement that there was really not much of a Constitutional argument here. There was a political and a moral argument and there was a medical argument. But you may have noticed that the justices of the Supreme Court are not medical doctors, but if you actually look at the text of the Roe v. Wade decision, there's an enormous amount of medicine within it.

Where did that come from? Well, we need to trace that influence for just a moment. The Mayo Clinic is a very well esteemed medical institution in the State of Minnesota. Justice Harry Blackmun had been the legal counsel for the Mayo Clinic. As a justice of the Supreme Court assigned to write the majority opinion, he consulted, by the way, not just legal experts and legal authorities, he gave very little attention to those, but rather medical authorities on the state of gestation. Thus, you have the Supreme Court of the United States using language that belongs more in a contested biology class than in a court of law.

We also know from the writings of Harry Blackmun himself and from documents that were passed within the court that have been revealed thus far, we know that Harry Blackmun and his colleagues in the majority on that decision, they claimed and may actually have believed that they were resolving the abortion issue in the United States. It was a hot issue of controversy. Second wave feminism had arisen in the 1960s arguing that a woman in order to be liberated had to be liberated from what was defined as the threat of pregnancy.

Now, just consider the worldview that would speak of the threat of pregnancy. But nonetheless, second wave feminism came making that argument and it made it vehemently and it put it right at the front, especially of where you had college campuses and activism in the cities and liberal influence, and yes, it was coming from the political, the moral, and even the religious left.

Something else we need to recognize, and this is humbling to us, is that most Americans in the early 1970s really didn't think much, not to mention, didn't think very deeply about the issue of abortion. To our shame, most American Christians, specifically evangelical Christians, did not think much about abortion and did not think about abortion very deeply. All that changed when the Roe v. Wade decision was handed down and when shock waves went through the American system and shock waves went through evangelical Christianity understanding what the result of the Roe and Doe decisions would be, what the legalization of abortion in the United States would mean, what the widespread use of abortion as a form of birth control would mean, and what abortion would mean as a moral blight upon the character of the United States.

Evangelical Christians and the pro-life movement had to think quickly about the arguments to be made against abortion, and had to think consistently, which meant that you watched American evangelicals in the 1970s and the 1980s move into ever more consistent arguments and understandings when it came to opposing abortion and affirming the sanctity of unborn life. You can see the evangelical conscience being remade in the white hot heat of controversy. But that's what's so confounding to the pro-abortion movement in the United States. They believed that they won almost 50 years ago. They believed that the issue was settled almost a half century ago. Yet, that issue has come again to the Supreme Court of the United States and effectively the precedent of Roe v. Wade is exactly what is at the center of what the court will consider today and what it will eventually adjudicate by the end of this term.

Pro-life hopes were invested in the 1990s in a case known as Casey, but in that decision, a plurality of the justices basically affirmed the central claims of Roe concerning a woman's right to an abortion. Ever since then, abortion has continued to be an ever more controverted and argued issue in the United States, evermore divisive. The political and moral divide in the United States has only widened between pro-abortion and pro-life arguments since the 1990s, not to mention the 1970s. All that is coming before the Supreme Court of the United States today.

Tomorrow on The Briefing, we will look at the arguments made. Very rarely do we invest this much time in the day of the oral arguments and in the day following, but this is not just any case. In this case, the central question in the infamous Roe v. Wade decision of 1973 is presented again to the Supreme Court of the United States and we have to pray that that court will respond in a way that not only honors the Constitution, but affirms the sanctity of human life.

Part

Is There A Religious Basis For Abortion Rights? — The Religious Left Contends for the Right to Terminate the Unborn

But finally, for The Briefing today, we need to recognize that there is an inescapably theological aspect to the deliberation on abortion. It's always the case, because the pro-life position eventually has to come back to the fact that human life is of greatest value on planet earth. How do you make that case? Well, you can't make it as Christians understand. Just from making reference to human life, you have to explain how human life came to exist and you have to define why human life is so precious. That takes us to what is essentially at the logical argument.

You say, "Well, there should be no theological argument before the Supreme Court of the United States." Well, there is limited utility to that argument because the alternative to a theological argument, as we understand, according to the biblical worldview is not usually a non-theological argument. It is an argument of a different theology. You see that glaringly apparent in a report that has come about the religious supporters of abortion rights who are, we are told, fighting for access.

The articles from the Associated Press, it appeared in the Jackson, Mississippi newspaper, The Clarion-Ledger, in recent days and it tells us about Jewish, Christian, Buddhist and other activists who are arguing for abortion rights. Holly Meyer reporting for the Associated Press tells this, "Beyond rallies and religious services, faith groups backing access have filed briefs that include religious freedom defenses in the Mississippi case. They have also launched advocacy campaigns, called on believers to speak out, contacted lawmakers and published opinion columns."

The article mentions that religiously, it comes down to evangelical Christians and Catholic bishops and Catholic thinkers as the opponents of abortion rights and the supporters of the sanctity of human life and it comes down to liberal Protestant denominations, well, in the words of this article, "A majority of Buddhist, Hindu, historically black Protestant, Jewish mainline Protestant, Muslim and Orthodox Christian adults support legal abortion in all or most cases. That according to the PEW Research Center's religious landscape study."

We're told that Catholics are split on the issue. By the way, the official teaching of the Roman Catholic church is not split. It's decidedly pro-life. "While most evangelical Protestants say abortion should be illegal in all or most instances." The article sites that Reverend Erika Forbes, we've mentioned her on The Briefing before, she is identified as outreach and faith manager with the Texas Freedom Network. She's also the catalyst behind what is known as the Reproductive Freedom Congregation Initiative and she is pushing the abortion agenda and she's doing so by trying to put together a network of supporting churches.

Now, you just have to look at that network to understand we are talking about a very, very liberal theology. We're talking about what can only be theologically defined as post-Christianity. In this article, by the way, we are told that the Reverend Erika Forbes who is behind this actually received her ordination "as an interfaith minister from OneSpirit Interfaith Seminary in New York." Let's just say that's not your traditional academic institution.

I'll admit my curiosity as a seminary president led me to find out something about this OneSpirit Interfaith Seminary, and as you might suspect, there is not much academically to this program, but we are told that one of its purposes in its code of ethics is to commit to "cultivating clarity of mind and understanding and refraining from misuse of intoxicating mind-altering substances."

Now, as you look at the actual text, it turns out they're not so opposed to the use as what they define as the misuse of intoxicating or mind-altering substances, but you do have to agree not to use them during class periods or come under the influence. I couldn't help looking at those who are identified as the staff in faculty. One is identified this way, a woman is identified with these words, "an animal chaplain, interspecies minister, an award-winning author."

"She teaches inner species mindfulness practices." Just imagine, by the way, what that might mean, "supports humans experiencing animal loss and grief and advocates for exploited and endangered species within both religious and secular context." We're then told, and remember they're saying this themselves, "You can often find her huddled over wildlife struck by cars, giving them a sacred sendoff or leading a Sunday service at Compassion Consortium, the first interfaith, innerspiritual and interspecies faith community."

But I'll simply conclude by saying that if you are in any way involved with what is defined as an interfaith, interspiritual and interspecies faith community, it just might go a long way in explaining why you have less concern for the sanctity of life of the human species.

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.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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