The Briefing, Albert Mohler

Special Edition: ‘This is the Day the Lord has Made’: A Monumental Victory for Life at the Supreme Court

It’s Friday, June 24th, 2022, a day we will long remember.

This is a special edition of The Briefing given the fact that the Supreme Court of the United States this morning handed down a monumental decision in the Dobbs case from Mississippi. And indeed the court went on to reverse Roe v. Wade. This is a special analysis of news and events from a Christian worldview.

Part I

'This is the Day the Lord has Made': A Monumental Victory for Life at the Supreme Court

It’s Friday, June 24th, 2022, a day we will long remember.

This is a special edition of The Briefing given the fact that the Supreme Court of the United States this morning handed down a monumental decision in the Dobbs case from Mississippi. And indeed the court went on to reverse Roe v. Wade. This is a special analysis of news and events from a Christian worldview.

I want to start today with a word from the heart, and then we will take a closer look at the decision and the opinions handed down by the court. First of all, this word from the heart. “This is the day that the Lord is made. Let us rejoice and be glad in it.” You know those words as Psalm 118:24, and the words are true every day. But doxology is surely right on this day, June 24th, 2022, when the Supreme Court of the United States struck down 50 years of the judicially sanctioned killing of unborn human beings in this nation.

Thanks be to God. We did see it coming. We had the leaked draft opinion by Justice Samuel Alito, and we had the strong arguments evident in the oral arguments before the court. We knew that the court now has a strong conservative majority with a core of deep and principled constitutionalism found in Justices, Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, and on most issues, Neil Gorsuch. There was good reason to think that Chief Justice, John Roberts, would uphold the Mississippi law restricting abortions after 15 weeks of pregnancy. But pro-life Americans have learned not to assume anything and to wait to see any decision in the black and white of plain text. Well, we now have the plain text. It is explosive. It is earth shaking. It reverses both Roe v. Wade and the Planned Parenthood vs. Casey. It completely removes the fiction of a woman’s right to an abortion from American constitutional law.

It puts a stop to the stain of legally sanctioned abortion by federal mandate. It returns the question of abortion to the people and to their elective representatives. It is an answer to prayer. I cannot, but think of my mother who did not live to see this day. I came home from school one day in 1973, the year of Roe v. Wade to find horrifying pictures on the kitchen table. My mom had just returned home from a meeting of pro-life Christians. Like so many others, my mom had no idea that the Supreme Court of the United States would dare to hand down a national decree inventing a right to abortion, but it had. Evangelical Christians were sent scrambling to build a movement from scratch. The Roman Catholic church was armed with a reputation of abortion and with legions of Catholics who could quickly be sent into the streets. Evangelical Christians quickly followed. But this was a battle that would have to be won in the courts and in the court, the same Supreme Court that had just given the nation the atrocity of Roe.

Furthermore, victory was not inevitable. The invented jurisprudence of substantive due process had produced an empire of linked decisions on issues ranging from contraception to same-sex marriage. Thus, if victory insanity were to come, an army of true constitutionalists and legal scholars would have to join the army of activists, and they did. That’s why it has taken a half century. Like my mother, there are millions who worked for this day, but did not live to see it. In this list must be counted many, including juries like Justice Antonin Scalia, Christian prophets like Francis Schaeffer, preachers like D. James Kennedy, and unnamed brave activists by the thousands who stood in lines, holding signs, loving pregnant women and their babies. Laughed at and derided by the world. The argument against Roe and Casey had to be built point-by-point.

The evidence had to be assembled piece-by-piece. Hearts and minds had to be reached one at a time. In the courts and in the court of public opinion, the entire process came with fits and starts, but the movement for life pressed on. Legislators in the states pressed the case. Defined the abortion industry. Governor signed bills. Courts had great moments and missed opportunities, but the urgency of defying death and defending life went on. Today’s ruling by the Supreme Court came down to this one line, “The constitution does not confer a right to abortion. Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.” There’s much more to the majority opinion and the concurring and dissenting opinions are filled with additional issues that demand our attention. But the most important truth to recognize is that the dissenting justices who would defend Roe and Casey and abortion rights have no real constitutional argument at all.

They never did. The emperor has no close. Today’s decision does indeed return the issue to the states and even bigger battles thus, face us. The day of battle is not over. And the cause of life is not finally won. We will have to redouble our efforts, refine our arguments, stand alongside women in crisis, honor the family and contend for life for the rest of our lives. But this day is now a milestone in history. I rejoice in this day, fighting tears as I think of my mother and so many others who knew the simple truth that God’s gift of life is breathtakingly precious, and must be defended. The battle before us is now even bigger than the battle behind us. So here we go. I’ll let that stand as a thematic statement. And from my heart, a devotional statement. A gratitude to God, and also gratitude to so many of God’s people who have helped to make this day possible.

I want to go back to the actual text. Now, what we had just a matter of weeks ago was an unprecedented leak of a draft opinion by Justice Alito. What we knew right then is that at that point, and that’s crucial at that point, there was a majority of the justices ready to overturn Roe and Casey. One of the most interesting things we wanted to see when the opinion was released today is how close the final majority opinion was to the draft that had been leaked. It was an unprecedented leak. It was an unethical leak. But it turns out it was a very accurate leak. It turns out that the majority opinion is incredibly close to the exact document that we saw a matter of weeks ago. So, in that sense, there are few surprises. In that sense, what we feel is truly a sense of relief because the majority opinion turns out to have remained the majority opinion. We knew even back then when the leak was released, we knew that there were a couple of huge questions.

Number one, would that majority stick together? And then secondly, where would the Chief Justice go? And it turns out that our intuitions and most expectations were just about exactly right. The Chief Justice had given indications that he would support further restrictions on abortion in particular, pushing back viability and thus a state’s ability to limit abortion. The Mississippi law that was at stake here did so at 15 weeks of pregnancy. But the chief justice was willing to go no further. He basically upheld the Mississippi law, but he did not go with the majority in striking down Roe v. Wade and the Planned Parenthood vs. Casey. Now, that tells us a great deal about the mind and the character of John G. Roberts, Jr. For one thing, it appears that the chief was willing to have the issue of abortion just come back again, and again, and again, torturously before the United States Supreme Court, even as a clear majority in the court knew that Roe v. Wade and Planned Parenthood vs. Casey had to be struck down.

They had to be struck down if there was to be any honesty and intellectual coherence at the Supreme Court. In that sense, one of the things we learned certainly affirmed in the release of all the opinions and documents today is that the Chief Justice was unwilling to stand with the majority of conservative justices in striking down Roe v. Wade. He did support the Mississippi abortion restrictions, but what we really see here is that the center of gravity on the court has shifted away from the chief who very clearly was the center of gravity for a matter of years, and has now gone to a resurgent conservative majority on the court. That’s very interesting. This decision is proof positive that that shift has happened. But looking at the decision and at the ruling, it’s fundamentally clear that Justice Samuel Alito, who wrote the majority opinion, understood that he had to set the framework for the reversal of what millions of Americans have claimed and assumed is actually a constitutional right.

And he did so with amazing clarity, simply pointing out that the constitution, the text of the Constitution, the words of the Constitution, the framers and authors of the Constitution, intended no such right. And thus, he basically stuck a dagger in the heart of liberal jurisprudence, which had argued that the Supreme Court should basically legislate the law rather than interpret the constitution and apply the law thereafter. And so, what you have here really is a reversal of a revolution. So, put this in historical context, it’s not just about abortion, but praise be to God, it is about ending abortion as a national supposed right. But as we’re thinking about the jurisprudence, we need to understand that what these majority justices went at was the very idea that rights can be invented by the court and declared to be on equal standing with the rights that are enumerated in the Constitution.

This idea of substantive due process goes back to the 1960s in particular, when the Supreme Court began to legislate from the bench. And here’s what’s fundamentally of interest. As you look at all the documents released on the court today, it is really clear that the conservative majority, the pro-life majority in this sense, actually refers over and over again to the text of the Constitution, to the context of the Constitution, to the framing of the constitution, the text in words of the Constitution. You will notice that as you look at the dissent from the three liberal justices, there is actually very little reference to the text of the Constitution. And the reason for that is abundantly clear. You will certainly not find any right to abortion in that text. And so what you had coming from the left, most particular from the three liberal justices, retiring Justice Stephen Breyer, Sonia Sotomayor and also Elena Kagan. What you had was an affirmation of the jurisprudence of say 50 years ago, not so much in any sense of the Constitution of the United States of America.

And so the two rival visions of the constitution basically came down to two different readings of fundamental reality, and even of the government’s interest and responsibility for the preservation of unborn human life. And so we, as Christians, look at this, we have to understand we are here talking about the fundamental issue of human life. It’s a bigger issue than texts and words and constitutions. The latter is important in serving the former, but we are looking at the fact that the clash on the court was between those who on the one hand would uphold the text and authority of the Constitution itself and thus of the sanctity and dignity of human life in this case, and those who would instead hold as the highest priority, a woman so-called right to choose that is identified as a part of her own self-expression and is identified furthermore as a central right that was supposedly included within the logic of the Constitution.

But one of the things we note over and over again is that if you follow that logic, there is literally no end to it. And thus you can see, decisions from the Supreme Court, such as the Griswold decision in the ’60s on contraception. And that led to the abortion decision Roe v. Wade in 1973, and that led to Planned Parenthood vs. Casey 1992. But it also led to other decisions most importantly, Obergefell legalizing same-sex marriage in 2015.

And so even as you have the conservative majority in this case saying this decision relates to the issue of abortion, to Roe v. Wade and Planned Parenthood v. Casey, not to same sex marriage and to everything else. The very important concurring opinion joining with the majority, but in a separate agreeing concurring opinion, Justice Clarence Thomas went so far as to say that the very idea of substantive due process needs to be rejected by the court because it is irresponsible. It is not found within the Constitution itself. It leads to irresponsible outcomes. And furthermore, it has been used by the left to turn the Supreme Court of the United States into a super legislature, at least one aspect of what the Supreme Court did today.

Thunderously, in a day that will long be remembered in American constitutional history, at least one thing the Supreme Court did today is to say that the Supreme Court of the United States is not a super legislature to legislate and set down law and policy for the nation on issues, in which, frankly, the United States Congress, as the elected legislature, may not have the temerity or the courage, or for that matter, even the wisdom or the will to do. You can’t simply then turn to the Supreme Court and say the legislature hasn’t legislated so you legislate on their behalf. That is an idea that has driven ideology from the left and a transformation of the law and to the courts in many different contexts. And this is reversed now in the decision handed down today by the Supreme Court only by a monumental indeed seismic effort that has taken decades to return a conservative understanding of constitutionalism, to the logic of the federal courts, and most importantly to the Supreme Court.

The logic had to be reversed of the legal progressivism and liberalism that had gained dominance at the Supreme Court even by the end of the 1950s. The court had taken on an activist role seeing itself as the steward of the big questions of American public life. At least a part of the importance of today’s decision is that the majority said that is not our role. Our role is to interpret and apply the constitution and the law of the United States of America. When you look at the printout, the document of a decision handed down by the Supreme Court of the United States, and certainly one of the stature, what you see first is what’s called the syllabus. This is a summary and it is the order. The actual order of the court.

And in this case, the order comes down to the holding and I’m quoting. It’s just going to be a few words, but these are the crucial words. “The Constitution does not confer a right to abortion. Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.” Now notice something. This says that the question is returned to the people and their elected representatives. Well, which elected representatives? Well, our system, our constitutional system means two different bodies here. Or you could say 51 different bodies. Number one, the Congress of the United States. But then the legislatures of the 50 states each has an opportunity to have it say, and every single one of them, by the way, turns out to be an arena of coming battle.

Later in the actual syllabus, we find these words, “The court examines, whether the right to obtain an abortion is rooted in the Nation’s history and tradition, and whether it is an essential component of ordered liberty.” The court finds that the right to abortion is not deeply rooted in the Nation’s history in tradition. Thus, the majority on the Supreme Court simply pointed to an obvious reality. For 187 years, the Supreme Court of the United States made no pretense that abortion was to be found within the Constitution of the United States. It was implausible on its face that all of a sudden, in 1973, a 187 years after the Constitution was ratified, you had a majority of justices on the Supreme Court who just all of a sudden discovered that what should have been seen there all the time was a right to abortion, which as this case makes very, very clear in the decision, was actually refuted by history in the sense that not only is abortion not found in the Constitution, but abortion had been criminalized in most states over the course of the same period.

Now, remember this particular decision handed down today, historically, is an overruling of Roe and Casey from 1973 to 1992. The statement of the syllabus rejecting Roe v. Wade and reversing the opinion is absolutely stellar. The language says this, Roe was also egregiously wrong and on a collision course with the constitution from the day, it was decided. Again, listen to that language, egregiously wrong. That means undeniably, radically wrong and on a collision course with the constitution from the day, it was decided. That is incredibly strong language coming from the Supreme Court. And it’s found, in this case, in the syllabus, which means the official statement, not just of the majority of the court, but of the Supreme Court of the United States, for time and for history.

Furthermore, later in the syllabus, you also have a statement coming from the court that as it looks backward at Roe and Casey, Roe 1973, Casey 1992, the two decisions actually came down with the same force that is basically upholding what was declared to be a woman’s right to an abortion. But by the time you get just about 20 years after Roe, the court had completely substituted a new legal argument. The court’s majority today simply declared that is simply illegitimate. It’s not plausible that all of a sudden you could have an invented constitutional right declared on one constitutional basis in 1973, only to find out that’s so flimsy. It has to be abandoned in 1992, but also with another artificial and constructed cake that would simply crumble over time and closer inspection.

At the end of the syllabus we find these words, “Abortion presents a profound moral question. The constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Rowan Casey irrigated that authority. The court overrules those decisions and returns that authority to the people and their elected representatives.” So, as I said before, the battle is now joined. A hotter battle than ever before is coming, but at least it will be a legislative battle with the elected representatives of the people at various levels. It is not going to be a super authority irrigated by nine black-robed justices sitting in the chamber of the Supreme Court of the United States.

And thus, you see, that the majority on the court in this case had to use exceedingly strong and clear language in order to say, the court aired, it aired badly, it aired egregiously, it aired obviously in the past. And thus, this is a complete reversal of Roe, and of Casey. Simple. Reversal. Over. Period. One of the most important issues of conservative jurisprudence and a conservative understanding of the constitution is that history really does matter. Now, just to state the most obvious, you can’t go back to say the founding of the constitution and say that the people who framed the constitution, and wrote the language, and established it, and ratified it, and debated it, that they meant something other than what they said.

So, just give you one example where history plays such an important role. In Justice Samuel Alito’s majority opinion, we read these words, “The right to abortion does not fall within this category until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the 14th amendment was adopted, three quarters of the states made abortion a crime at all stages of pregnancy.” So, the claim that somehow a woman’s right to an abortion, and by the way, you’ll notice given the trans-revolution, how many people in the media are referring to a person’s or a citizen’s right to an abortion. Well, it turns out that those who made that argument, that it was going back to the very text of the Constitution had to deal with the fact that it’s blatantly false to make that argument. That there wasn’t a single state at any point in the nation’s history that made any argument, anything like what the majority on the court declared in 1973. Their statement was not only built out of thin air. It was refuted by facts and by history.

I have to tell you that another of my favorite sentences and sections from the Alito majority opinion is this, “Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the constitution, is part of a right to privacy, which is also not mentioned.” Now, that’s subtlety, but frankly, it’s not all that subtle. Here, you have Justice Alito saying that Roe v. Wade was built upon an artificial argument, that was built upon an artificial argument, that was built upon an artificial argument.

Getting back to plain historic fact, Justice Alito also wrote as the opinion of the court, “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights,” said Justice Alito, “the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.” In other words, the argument was artificial from the start.

In another extremely important sentence. We read this, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history in traditions. On the contrary and unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” That is until Roe v. Wade. The climactic point in the majority opinion has reached with these words, “Roe was also egregiously wrong and deeply damaging for reasons already explained rose constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”

Continuing, “Roe was on a collision course with the constitution from the day, it was decided. Casey perpetuated its errors and those errors do not concern some arcane corner of the law of little importance to the American people. Rather wielding nothing but raw judicial power, the court usurped the power to address a question of profound, moral, and social importance that the constitution unequivocally leaves for the people.” It’s hard to imagine how that language could be any stronger, any stronger at all.

Here, you have a clear majority on the US Supreme Court and in this case, it’s five, four. So, in upholding the Mississippi law, the court was six, three because Chief Justice Roberts went that far. But Chief Justice Roberts went no further. And in fact, his so-called concurring opinion in that sense, concurring in part, it’s very, very weak. But nonetheless, a majority of five, four, went on to reverse Roe v. Wade and to reverse Planned Parenthood versus Casey and to simply state that the federal law and the federal constitution, posits no right of any person, and we must say of any woman to an abortion, nor you could say of any citizen to participate in the industry of an abortion.

It needs to be said that conservative Justice Samuel Alito did a masterful job in writing the majority opinion. It’s also important to recognize that in a concurring opinion, stalwart conservative Justice Clarence Thomas, who’s been sitting on the court now for a matter of three decades, was incredibly clear in pressing forward to also state that the very idea of substantive due process is unconstitutional and untenable. He called for the court to “reconsider all this court’s substantive due process precedence, including Griswold, Lawrence and Obergefell.” But then Justice Thomas went on to write very eloquently, “In future cases, we should follow the text of the constitution, which sets forth certain substantive rights that cannot be taken away and adds beyond that a right to due process when life, liberty or property is be taken away.” He concludes, Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”

I do not want to let this analysis end without some reference to the dissenting opinion joined by the three liberal justices. Justices Breyer and Sotomayor, and Kagan. They wrote in their dissent that they disagreed nearly entirely with the court’s decision in this case and with the court’s majority. But as has been noted, they make very little constitutional argument. They made very little constitutional argument in the beginning, and those who actually framed the Roe v. Wade decision in ’73, Casey in 1992. They argued about all kinds of issues related to abortion, but they could not actually make their case from the Constitution because abortion of course is not mentioned in the constitution. So, then they try to scare people by saying, if abortion’s not in the constitution, then same sex marriage isn’t in the constitution. By the way, neither one’s in the constitution, although say, contraception’s not in the Constitution. Well, of course it’s not in the Constitution.

And here you see, the liberal effort starting at about the midpoint of the 20th century to try to accomplish through the courts what they couldn’t accomplish in the law. Now, when it comes to many of these issues, the American people are not where they were in all likelihood in the 1950s. On many issues of sexual morality, we would see that as Christians as a great loss and a great confusion. But nonetheless, what we see here is the reality that the Supreme Court has returned this huge question to the states. As returned, these huge questions to the elected representatives of the people, the state, and at the federal level.

And thus, legislation is the war, the battle to which all this will now turn. But just thinking about how the minority of liberal justices were thinking, I refer you to these words in their dissent, “Because Roe and Casey continued to reflect to not diverge from broad trends in American society, it is of course true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet, the fact remains Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Only a dozen years before Roe,” say the dissenters, “the Court described women as the center of home and family life with special responsibilities that precluded their full legal status under the Constitution.”

Now, I’ll skip down, “By 1992, when the court decided Casey, the traditional view of a woman’s role was only a wife and a mother, was no longer consistent with our understanding of the family, the individual, or the constitution. Under that charter, Casey understood women must take their place as full and equal citizens and for that to happen, women must have control over their reproductive decisions. Nothing since Casey, no changed law, no changed fact, has undermined that premise.”

I just want you to know what that is. It’s a moral, a political argument. It’s a moral and political argument, I think, that is profoundly wrong. But it is a moral argument. It’s not a constitutional argument. But there you see that at least one of the seismic differences between the two sides in America’s political lives, the two different worldviews, operate and dominant in American culture, it comes down to whether or not we really are a constitutional experiment in self-government. Or whether we are going to defer to black-robed experts who are supposed to apply their best understanding of anthropology, sociology, and morality, and tell the rest of us minions what we are to think and how we are to live.

There is, and certainly will be much more to say about this and I appreciate your time today. I hope you have found this special edition of The Briefing to be helpful. I began more devotionally and I want to end that way as well. I believe this is the day that the Lord is made and I am going to rejoice and be glad in it. In one lifetime, even a long lifetime, in a lifetime of struggle in so many of these issues, we just don’t see many days of victory.

But this is one, and it is a big one. And like ancient Israel and like the two millennium old Church of the Lord, Jesus Christ, we must do battle in the Lord’s name and we must understand that the victory is always the Lord’s. I know there will be those who say that violates the separation of church and state, so sue me. Take me to the Supreme Court. I am glad for this day, I rejoice in it. I do rejoice in this day. A day that will live in history and I pray that God would bless the United States of America.

Thanks for listening to The Briefing.

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I’ll meet you again, and, I think, I mean it this time, on Monday, for The Briefing.

R. Albert Mohler, Jr.

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