The Briefing, Albert Mohler

Thursday, December 2, 2021

It’s Thursday, December 2nd, 2021.

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

Part I

"Roe v. Wade and Planned Parenthood v. Casey Haunt Our Country” — Some of the Most Clarifying Words in Supreme Court History

I want you to listen to these words, some of the most important words ever spoken before the Supreme Court of the United States. They were spoken yesterday. These words should be long remembered. These words speak the truth, and these words made history.

Chief Justice John Roberts: We will hear argument this morning in case 191392 Dobbs versus Jackson Women’s Health Organization. General Stewart.

Scott G. Stewart: Mr. Chief Justice, and may it please the Court, Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law. They’ve choked off compromise. For 50 years, they’ve kept this court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.

Now, as you heard those speakers, the first was the chief justice of the United States, John G. Roberts, Jr. And even as the court had been called into session, he said very clearly we will hear argument this morning in case 191392 Dobbs versus Jackson Women’s Health Organization. Now, that’s just the way the court announces the beginning of oral arguments. And even as those oral arguments had begun, the reality is that the case is far more important than those words may indicate, or the number, that docket number 191392, well, that’s not all that important.

The name of the case, Dobbs versus Jackson Women’s Health Organization takes us back to the fact that we are really talking about a lawsuit against Mississippi, the state of Mississippi, a lawsuit against Mississippi, because it dared to adopt legislation that restricted abortion after the 15th week of pregnancy. And thus, it set up a direct contradiction to the Roe v Wade decision and to its successor decision, the Casey decision in 1992.

What’s important here to note is that the case had come before the federal courts because pro-abortion activists speaking on behalf of an abortion clinic in Jackson, Mississippi had sued in the federal court against the state of Mississippi’s right to pass the legislation. That eventually went to the Court of Appeals. And then it eventually arrived at the Supreme Court of the United States. And there, as you heard those words, the solicitor general of the state of Mississippi went right to the issue.

For the first time am in the history of the United States Supreme court, since the Roe v Wade decision in 1973, someone dared to stand up before the court and defend the right of the states to restrict abortion and use the language that gets right to the heart of the issue. We said yesterday that finally we have arrived at a clarifying, at an honest moment, at a moment in which both sides finally are saying the truth about their arguments. And in this case, the solicitor general of Mississippi, that is the constitutional authority who is to represent the interest of Mississippi before the courts, solicitor general, Scott G. Stewart got right to the issue when he said “Roe versus Wade and Planned Parenthood versus Casey haunt our country.”

He went on to say, “They have no basis in the constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise for 50 years.” He said, “They’ve kept this at the center of a political battle that it can never resolve.” And he said, “And 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.”

Let’s just take those words. Those are just the opening seconds of what amounted to two hours of oral argument before the nation’s highest court. Yesterday did make history, but the history began even in those first words issued by the solicitor general of Mississippi. He went right to the core issue. So long as Roe stands, so long as Planned Parenthood versus Casey stands, our country is haunted by the fact that unborn human life is simply considered insignificant, not worthy of constitutional protection. That’s where these words also became so important, because the solicitor general dared to say that abortion rights as they are characterized have no home in our history or traditions.

That is to say when the Supreme Court invented the so-called right to abortion in the Roe v Wade decision in 1973, it could not claim any basis in our history or legal traditions other than just going back to a few years, previous say 1966 and claiming a so-called right to privacy, which itself is not found in the constitution. He used moral language saying that these two decisions as precedents have damaged the democratic process. And of course, they have.

And this is where the high court in 1973 just irrigated to itself the question of abortion. It did not leave this to the legislative process. It didn’t leave it to Congress. It didn’t leave it to the states. It said, “No, we will take this issue. And as a group of nine justices, in this case, a majority of seven, we will decide this case and enforce our opinion about abortion upon all 50 states.” And that’s lasted almost 50 years.

The reference to Roe and Casey together goes back to the fact that Roe was handed down in 1973, but it was the Casey decision in 1992, just almost 20 years later, that established a second precedent. So as you heard the language and the arguments about precedents before the high court yesterday, you heard the reference to Roe is the precedent and Casey as the precedent upon precedent. Well, so far as the abortion rights movement is concerned should end the issue. But the solicitor general of Mississippi, Scott Stewart went on to say, of course, this didn’t end the issue because this is not a sustainable position. It’s not sustainable morally. It’s not sustainable constitutionally.

The effect, as he said, is that for a half century, those decisions have kept the court at the center of a political battle that it can never resolve. That’s huge. Here you had a man making a case before the Supreme Court of the United States, in which he said to the nine justices of the United States Supreme Court, you cannot solve this issue. The court made the mistake in 1973 in deciding arrogantly enough that it could decide and resolve this issue.

As I’ve discussed often on The Briefing, the amazing thing is that the pro-abortion majority on the Supreme Court in 1973 actually said out loud, in the words of Justice Blackmun, we have resolved this issue. Thanks be to God, that was not true. The issue was not resolved then. It is not resolved now. It is not resolvable by the Supreme Court.

In this case, the state of Mississippi through its solicitor general said to the Supreme Court, the only thing you can do in terms of right reason and the text to the constitution and the overarching tradition and respect of this court is to back out of this question and leave it to the people. In this case, that means leave it to the states. The situation before Roe v Wade is that there were 50 states and each of those 50 states had the local right as a state to determine the law that would relate to abortion. And you had states that came to very different positions, but that’s a legislative process. That’s a process that was in the hands of the people of the states as was exercised through their elected representatives, through state government.

And remember we are a constitutional system, a federal system of 50 states. Not of one nation that gets to say to 50 departments this is how you order your state’s life on all these issues. No, the distinction between the enumerated rights, the limited rights, the important essential rights of the federal government and the rights that are otherwise left to the states that is essential to our constitutional system. And throughout much of the last 120 or so years, much of the mischief in our country has come from the federal government at some level. And from some branch, deciding that the federal government should decide all of these issues.

I can assure you that the constitution of the United States would never have been ratified by the states had that been the argument that was made at the time. The states were not surrendering their role. They were indeed supporting a federal government with very important enumerated and essential powers they were not dissolving themselves.

Something else about the Solicitor General’s open statement is the fact that in that last sentence of his first paragraph, he said, nowhere else does this court recognize a right to end a human life. Now, that was perhaps a rhetorically risky position for him to take, a rhetorically dangerous statement for him to make, if he was trying to just finesse the court into ruling in a way that he felt was right by the constitution. That was a morally significant statement. That was a statement about the moral wrong of abortion. Nowhere else he says, does this court recognize a right to end a human life.

And in that sense, the solicitor general of Mississippi made a very important argument. It’s not just that it’s important because it’s moral. It’s important because he said, “Look, it’s one thing, it’s one thing for the high court in this land to invent a right or to develop a right or to infer a right out of some kind of interest or some kind of rights claim. It’s another thing to transform that into something that supposedly grants one person the right to end another person’s life.”

That’s where for one of the rare times in the history of the United States, the personhood of the unborn actually showed up in the arguments made before the nation’s highest court. In my opinion, that makes this day historic even if nothing else had happened. It’s also really interesting to see that the case for Mississippi was made by the solicitor general of Mississippi in a way that got right to the issues and he was not deterred from making his argument. He spoke to Roe and Casey’s core holding saying that the court had stated that the people can protect an unborn girl’s life when she just barely can survive outside the womb, but not any earlier when she needs a little more help.

He went on to say, “That is the world under Roe and Casey. That is profoundly moral language. It’s the kind of language that has finally appeared before the court to stand up for the unborn.” And then in concluding his opening words, he went on to say, “That is not the world the constitution promises. He said, the constitution places, its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue.” He said, “It demands the best from all of us, not a judgment by just a few of us.” Meaning you justices of the Supreme Court.

“When an issue,” he said, “affects everyone and when the constitution does not take sides on it, it belongs to the people.” Now, that means that the state of Mississippi was making a restrained argument. It was making the argument that the state of Mississippi has the right to restrict abortion and that means that other states have the right, the constitutional authority to restrict abortion. That was the issue, the question that was undertaken by the court. And that was the issue that the solicitor general of Mississippi answered profoundly and clearly and early.

Part II

Precedent and a Woman’s ‘Right’ to an Abortion: A Look at the Pro-Abortion Movement’s Two Major Arguments In Favor of Upholding Roe and Casey

But that worldview divide on the court, a divide over abortion, yes, a divide over how to read the constitution, yes, but an even deeper divide over reality and over the function and responsibility of the court, it came when Justice Stephen Breyer, now the senior liberal justice on the court interrupted Stewart to say that his argument was opposed to the role of precedent, stare decisis. The court’s principle that the decision should stand unless there is due an adequate reason to reverse a decision.

Justice Breyer represents the establishment of the left that has made the argument consistently now that when it is to its convenience, the stability of the law means that a liberal decision must stand. But you’ll notice something else. The left does not argue for stare decisis when it comes to issues of the law related to sexuality, just consider the fact that there was a very clear Supreme Court precedent that said that the states have the right to make homosexual behavior illegal. There were very clear precedent in which the states had the right to defend marriage, but when it came to the issue of the legalization of homosexual activity, the court reversed itself 180 degrees. These very same liberal legal authorities were not arguing for stare decisis, for the stability of precedent then.

The reality is that both sides take the stability of the court seriously, both the liberals and the conservatives, both those appointed by Democratic presidents and those appointed by Republican presidents. But none of them actually is willing to make stare decisis the last word. On the liberal justices, they were quite ready to reject even to reverse court decisions they didn’t like on human sexuality. When it comes to abortion, you have the fact that conservative justices are not willing to allow stare decisis to stand in the way of correcting the court’s horrifying jurisprudence on the issue of abortion and the sanctity of human life. Intellectual honesty means everyone believes in stare decisis so long as they believe in the decision they want to stand.

Justice Breyer then went back to the Casey decision and its reference to precedent saying “to overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision would subvert the court’s legitimate beyond any serious question.” But again, just look at American history. Look at the issue of the reversal of the horrifying decision on race and Plessy versus Ferguson. And that was reversed in the Brown decision. I do not believe there is any responsible legal authority who wants to go back and defend the Plessy v. Ferguson in either its substance or its effect. But that’s where the incommensurate nature of the arguments made on both sides before the Supreme Court yesterday became very, very clear.

Here’s the issue. You had basically one very fundamental argument made by those who were defending the state of Mississippi, those who were defending Mississippi’s right to restrict abortion. They simply said the constitution doesn’t speak to this issue. The Supreme Court of the United States made a mistake in 1973. It doubled down on that mistake in 1992. That mistake needs to be remedied. It is 50 years basically since Roe. It is high time this court admits it made a mistake and backs out of this issue all together. It never belonged there. It needs to retreat from the scene of the abortion controversy. You not only have not resolved this, you cannot resolve this.

And then there were two arguments basically made by those who were the defenders of abortion rights. The most important argument they made was simply precedent. This is an important precedent. The court has established, it invented a new right. It has to stand by that new right or a domino effect will take place. One domino will fall and then the next and then the next, and then the next. The solicitor general of Mississippi would not be drawn into affirming that argument. He simply came back to the fact that precedent never has the last word. Where the court has erred, it needs to correct the error. It must not do so in a way that is reckless.

But one of the most important arguments that Stewart made before the court is “Look, we are almost a half century after Roe. Clearly, it doesn’t work. Clearly, it can’t work. Clearly, it has had ill effects. Clearly, it was wrongly decided. How long are you going to have to wait to remedy that error?

The second argument that was made, not by just one, but by two defenders of abortion rights, thus, they were the opponents of the Mississippi legislation. The two arguments came down again to precedent first, but the second argument they made aid was women now depend upon a right to abortion. It would be unfair to rewind history. And there, we need to look at a couple of arguments because they tell us about a lot more than abortion. They tell us about the revolution and morality that has taken place. They tell us about the autonomous individualism that now rules in so much of our country. And you’re looking at a couple of things that are really, really interesting.

For one thing, you have to deny the personhood of the baby. Now, no justice on the court yesterday said anything like “I don’t believe in the personhood of the unborn.” They never said that because they didn’t allow themselves to be put into the position where for the main, they even had to acknowledge the unborn child. That at one point Justice Sotomayor actually let the issue slip. She actually addressed the character, the nature of the unborn child. She did so in reference to laws that would restrict abortion on the basis of fetal pain. You need to know what she said.

She said this. “So I don’t think that a response to, by a fetus necessary proves that there’s a sensation of pain or that there’s consciousness.” She actually compared a test of consciousness when it comes to those who’ve been declared brain dead and those who are unborn in the womb. It was a morally catastrophic statement, a very revealing statement, one Justice Sotomayor may actually wish she had not made, but she made it. It’s here in the record.

At some point later, Justice Sotomayor also went to the question of the beginning of life. She said this. “The issue of when life begins has been hotly debated by philosophers ever since the beginning of time, that’s not by the way, really clear as true at all.” But nonetheless, she went on to say, “It’s still debated in religions.” She went on to say to the Mississippi solicitor general. “So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Well, again, an amazing statement. Is it a religious view? Well, in some sense, yes, but how exactly is Justice Sotomayor going to define the issue herself? And here you see where the court says two things on the left that are actually contradictory. Number one, we can’t decide when human life begins and you’re wrong to say it begins at point A or B or C. That’s a contradictory set of statements. Either we can or we can’t know when human life begins, but here’s the rub. Every single law on abortion, every single law and many other issues of legal significance will have to imply or have to assume when human life begins.

You may say you’re dodging the question. You can’t dodge it. You may say that any answer to it’s religious, I’m a theologian and I’ll say you’re at least partly if not rightly and wholly true, but there’s no non theological position here. There is no position in which someone can say, “Ah, I know when human life begins.” And here you see the surrender of the pro abortionist to saying, “We actually have no idea when human life begins, but we’re afraid it might begin in the very beginning.” Such as in fertilization. And then that would mean no more abortion.

So you see that they really do understand where the logic leads and that’s why they have to say, “We don’t accept the fact that life begins at fertilization, but we’re not going to allow anyone to say where they believe it begins after that.” And of course, here you have the fact that right now under Roe v. Wade and Casey and under the prevailing abortion regime, the fact is that many babies are aborted in the womb right up until the moment of birth.

Another important moment in the oral argument and in the argument that was given by Solicitor General Stewart of Mississippi is when he pointed to the Casey decision’s burden standard. That is undue burden standard. Casey said that states may adopt certain laws restricting abortion if they do not present an undue burden upon the woman seeking the abortion.

Well, here’s the problem. What does an undue burden mean? Who decides which burden is undue? Who decides whether a burden is actually a burden? And the point being made by the Mississippi solicitor general is there is no workable objective standard here. The court has failed to establish any meaningful rule by saying there should be no undue burden. Then he pointed to the fact, even as there were certain justices who clearly recoiled at his statement, he basically threw it back at them saying, “Look, your own convoluted jurisprudence means that it’s not resolved. You didn’t come up with an objective standard. And the fact that nobody know was in advance whether something is undue or not, again means there is no objectivity here.”

Part III

The Power of Argument: Why Abortion Rights Supporters Consider Yesterday’s Oral Arguments a Disaster for Their Movement

The argument for abortion rights was made by two women.

First of all, Julie Rikelman, who is the senior director of litigation for the Center for Reproductive Rights. She was arguing on behalf of the abortion clinic there in Jackson, Mississippi. And she went on to say that Mississippi’s ban on abortion is “flatly unconstitutional under decades of precedent.” Again, her first argument was precedent. That’s not an equilateral argument to that that was presented by the solicitor general of Mississippi. And that’s why so many people who are defenders of abortion rights understand that the oral arguments yesterday went disastrously for the pro-abortion side. They did not come with an argument of equal cogency even from the beginning.

It was also the solicitor general who went into the trap of basically saying that the precedent in Roe and Casey should stand even if the decisions were wrongly decided, even if the decisions were badly decided. Wrongly decided in a very clear way. Now, just consider what that argument comes down to. Here, you had both of these attorneys having to stand before the court to say, “We’re not actually going to argue all the way to the foundation that Roe versus Wade and Planned Parenthood versus Casey were rightly decided. We are going to say they’re precedents and women now depend upon this newly invented right. And they have had this right supposedly for almost half a century.

And it would be rolling back the entire modern age for the court to reverse Roe and Casey.

Part IV

Defining the Modern Age? The Right for a Woman to Kill Life Within Her

But it’s also very interesting to note that when you had the issue put before the court, by Julie Rikelman, she went on to say that the question well might be whether or not Roe and Casey were egregiously wrongly decided, but that’s exactly what the attorney for Mississippi was saying. It was, they were egregiously wrongly decided. In the words of Julie Rikelman “The question then is not whether Roe should be overturned, but whether Casey was egregiously wrong to adhere to Roe’s central holding.” But that’s exactly what the lawyer for Mississippi was arguing. Yes, it was egregiously wrong. Rikelman went on to argue, “Eliminating or reducing the right to abortion will propel women backwards. Two generations,” she says, “have now relied upon this right.”

Again, look at that language, eliminating or reducing the right to abortion “will propel women backwards.” Now, remember, that the moral urgency brought by the abortion rights movement in the 1960s and leading to their big win at the court in 1973 was that women in order to be equal with men must be equally able not to be pregnant. Now, if you understand that logic, you understand why the left, the moral political ideological cultural left in the United States has to see abortion as absolutely central to its ambitions, even central to its worldview.

Interestingly, that was also made clear in an official editorial from the editorial board of the Los Angeles Times in anticipation of the oral arguments yesterday, where the editors wrote “access to abortion has been hobbled even under Roe.” But they wrote “but a swath of states banning it outright is a step back from modernity that frankly, a decade ago, would’ve seemed unthinkable.” Again, a step back from the modern age. Here, the modern age is described as an age of moral liberation, an age in which the moral ought is that a woman ought to have the right to kill the unborn life within her.

Now, just understand that’s how many people define the modern age. That is why we saw two worldviews, honestly, and unavoidably colliding in the oral arguments before the Supreme Court yesterday. That’s why yesterday’s oral argument are simply so important and why we will be talking about them for years to come. And that is why so much is staked upon this decision.

Part V

The U.S. Solicitor General Who Made the Arguments for Abortion Before the Supreme Court Yesterday Was Appointed by President Joe Biden — Elections have Consequences . . . Every Election, Every Time

But I want to point in conclusion to something else.

Elections have consequences.

Now, the elections have consequences, including who sits on the Supreme Court of the United States. And right now, the math is quite simple. There are six justices who are appointed by pro-life Republican presidents. There are three justices who were appointed by what can only be described as pro-abortion or they might say pro-choice democratic presidents. And thus, there is a very real hope that Roe v Wade and Planned Parenthood versus Casey may be reversed.

You change the electoral results and any one of those presidential elections and you have a different Supreme Court, a very different Supreme Court. Remember, that three of those justices were appointed by just one president, President Donald Trump. There’s something else here. The case made for the abortion rights movement was made in the second part by the solicitor general of the United States. The solicitor general is a federal position the attorney who represents the United States of America before the Supreme Court.

Again, elections have consequences. The current solicitor general Elizabeth Prelogar was appointed by President Biden. And she was commissioned in this essence to defend abortion rights before the Supreme Court. A different electoral result would have led to a very different solicitor general, who would’ve made a very different argument before the Supreme Court of the United States yesterday. Elections have consequences. And one of those consequences is who was representing the United States of America before the US Supreme Court yesterday.

Keep that in mind every election, every time.

R. Albert Mohler, Jr.

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