Wednesday, March 27, 2024

Part I

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SCOTUS to Decide Fate of Abortion Pill? Oral Arguments Over Mifepristone Go Before SCOTUS — With the Looming Question of Standing in the Forefront

Well, over the course of the last couple of days, you have likely been told that the fate of the abortion pill now lies with the Supreme Court of the United States. You see headline after headline framed over the course of the last week or so, particularly because so much is at stake in the case that was heard in oral arguments before the Supreme Court yesterday. But as we look at this, we need to recognize there are always multiple dimensions working at the same time. One dimension is what is the court actually deciding, or what questions will it have to confront? The second issue is how is the mainstream world talking about this, the mainstream media? How are they talking about it?

How are those who are trying to frame the issue, well, how are they trying to frame it? If you look at the mainstream media, the more liberal media are trying to claim that the fate of the abortion pill now lies with the Supreme Court. There is a dark sinister plot they would indicate in order to deny women access to the abortion pill, and that is taking the shape of this challenge that now the Supreme Court must turn back. On the other hand, the pro-life movement has a lot invested in this case with a very important argument that the Food and Drug Administration violated its own rules, and has put doctors at risk of being forced to participate in abortion simply because of the way the abortion pill actually works. So, big issues at stake here.

We need to look at the oral arguments as they were presented at the court yesterday. We need to take these issues apart, because frankly, each of them is important. Now, before we even look at the case, however, let’s just set the stage with something we’ll talk more about in just a moment. That is the fact that the abortion pill is the big game changer. So, when we are talking about the future of abortion in the United States, increasingly, it is a question in the shape of a pill. For example, the Guttmacher Institute, which is recognized by both sides, it’s a pro-abortion organization, but frankly, its figures are pretty well respected by both sides. It now says that 63% of all U.S. abortions in the year 2023 were so-called medication abortions. They were pill form abortions.

They were not performed in an abortion clinic. They were brought about by Mifepristone and its allied drugs. They were brought about by a pill. Now, that’s up from 53% in 2020. Well, that tells you the trend line, and that trend line was probably working that way without the Dobbs’ decision in 2022, but the Dobbs decision was undeniably an accelerant. The reversal of Roe V. Wade has led to the fact that one of the ways the pro-abortion movement sees to further its cause even in a post-Roe age is to translate abortion into a pill question rather than an abortion clinic question, or to put it more plainly, in many states where you no longer have abortion clinics by state legislation, you may still have the availability of abortion by means of the abortion pill.

But all right, let’s go back and remind ourselves what oral arguments before the Supreme Court mean. When the Supreme Court takes a case like this, and in this structure, it sets up oral arguments. That is to say attorneys on both sides get to make their claim before the court, and justices get to ask questions, even interrupting the attorneys as they are making their case. When the Supreme Court decides to take a case, and that’s the way it happens, when the court grants what is known as a writ of certiorari, or it says it’s going to agree to take a case, lawyers on both sides have to scramble to be ready to make their case before the court, before the justices. They have to be ready to make their case. They have to be ready to answer intended questions.

I’ve had the opportunity to be involved with lawyers getting ready to make pro-life arguments before the Supreme Court, and I can tell you it’s a grueling process. They have to get ready for this by anticipating every question that may come, friendly questions, unfriendly questions. They have to understand what arguments the opposing counsel will make, and be ready to counter those arguments as well as to further their cause. Here’s something else Christians need to keep in mind. We’re not talking about robots here. We’re talking about human beings, human beings at every stage and in every seat related to this equation, nine justices of the United States, every single one of them, a complex human being responding to the question with all kinds of different issues.

Even if you say you have a majority of conservative justices, a minority of liberal justices on the court, when it comes to many questions, frankly, they’re still human beings. That comes out even in the oral arguments in unexpected ways. You’re talking about human beings making the cases. As you look at this case, you recognize that even going into the oral arguments yesterday, everybody knew there were a couple of huge questions, and that just reminds us that sometimes what the Supreme Court rules on is not what you are told the case is about. So, is the Supreme Court going to rule at all on the question of the abortion bill? Well, it might, and it might not. Well, it has to hand down a ruling in this case.

Yes, it has to hand down a ruling, but much of what the Supreme Court does has to do with even answering the question as to whether the court should have heard the case in the first place, whether or not those bringing the case have a true constitutional right and present a true constitutional question that is germane to the United States’ Supreme Court. The legal way of describing that is that the party has to have what is called standing. Standing before the Supreme Court means that they have the right to be there. They’re presenting a legitimate case that actually calls upon the Supreme Court to rule on something in which their own constitutional rights are directly at stake. Now, the big issue here, everybody knew from the beginning is whether or not the Supreme Court would recognize that those bringing this case challenging the Food and Drug Administration had standing in the federal courts.

Once the oral arguments were underway yesterday, it was really clear that the main question that was really being deliberated and interrogated by the court and frankly to some degree on both sides of the equation, but nonetheless, it was a huge full discussion of whether or not the parties in this case had the standing to bring the case against the FDA in the first place. Now, just a reading of the situation, so we’re not talking about what we want to happen in this case. We’re talking about what is likely. It appears that there is a strong likelihood that a majority on the court will rule that the parties did not have standing, and thus that the court will never actually rule on the abortion pill and its availability, or the FDA and its responsibility at all.

So frustratingly enough, those of us who are committed to the pro-life cause, we need to recognize that this case is a righteous cause, but it might fail not because the FDA is not culpable, and the FDA is not responsible for frankly rushing the process of violating its own rules and doing so for the abortion pill, it might be that a majority on the Supreme Court say, “There’s simply no standing on the part of those who brought this case. Therefore, that’s all we’re going to say about it.” 

Now, that’s a frustrating realization, and as you look at the case made by, for instance, Erin Hawley making the case on behalf of the doctors who brought this suit and the Alliance Defending freedom, she was really clear about the fact that the standing in this case is grounded in the constitutional rights of those physicians not to be coerced into participating in abortion, but is that going to be a winning argument? I don’t know. Those who were watching the court and were observing the oral arguments, it certainly seemed like at least two of the conservative justices, Kavanaugh and Barrett, were very suspicious that there is no standing here.

Part II

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Abortion in a Pill: The Constitutional and Moral Challenges Behind the Mifepristone Oral Arguments

Now, before we even go any further with that, let’s just remind ourselves that conservative means one thing. It can also mean a couple of things. That is to say one conservative principle, of course, is the dignity and sanctity of human life in the defense of unborn life. Another conservative principle is a very clear reading of the U.S. constitution and statutory law so that the actual word, sentences, and paragraphs matter. That’s what strict constructionism or originalism dealing with original intent is all about.

Another key conservative principle is avoiding expanding the power of the administrative state, and expanding the power of courts to basically become a new version of the administrative state. So, there are conservative principles that may be in conflict or at least in apparent conflict in this case, so it may be that some of these conservative justices will say, “If we do go ahead with this case, if we do say there is standing, we just open the door for an entire new understanding of standing that could lead to a flood of suits and cases we don’t think belong before the Supreme Court of the United States.” It’s hard to say, but it is really interesting to look at that in the immediate aftermath, both sides. The conservative media and liberal media were pretty much agreed that the key issue that seemed to interest justices was standing.

On that question, Erin Hawley making the case for the doctors whose standing she is defending, she made the point that one of the concerns about the use of Mifepristone is that it often leads to complications that require medical intervention. You can have a patient show up who began an abortion process with the abortion pill, and these doctors just given their responsibility could be required even to act in a way such as a D&C in terms of a completion of an abortion that would involve them in complicity and abortion. By the way, I find that a very compelling argument. In moral terms, I find that a very compelling argument. Whether the court sees it as a compelling argument in constitutional law, that remains to be seen.

I think the very best line in the oral arguments presented by Erin Hawley in this case is when she said that the doctors would have their conscience violated by being forced to manage abortion drug harm. That’s exactly the way she put it, forced to manage abortion drug harm, and she went on to say, I think this is the best emphasis she could have given, and that is that the FDA policy and the harm to the doctors here in terms of their conscience being forced to manage abortion drug harm, “is not a bug in FDA system, but part of its very design.” The court also heard a argument that the FDA violated its own policies. It rushed its policymaking in this case to serve the pro-abortion cause particularly after Dobbs, and that it has not acknowledged the harm that comes to many women by taking the drug, and even as the numbers are variable, something between, say, 2.3 and four point something percent of the women who take the drug end up having to have subsequent medical care.

If that’s true, then it explains why Erin Hawley responded to justice Amy Coney Barrett by saying, “This is a substantial number of women suffering abortion drug harm. Attorney Hawley there cited the Guttmacher Institute saying that 650,000 women took the drug in 2023.” Now, there were a couple of other very interesting twists and turns in this. For one thing, you did have the odd situation in which the FDA and a drug maker were on the same table. They were on the same side of the equation. Usually, when you look at a case like this, it’s likely that the FDA and the drug maker would be on opposite sides. It tells you something about our moral challenge that in this case they were on the same side.

It is also interesting that in arguing that the doctors shouldn’t have standing, Elizabeth Prelogar, the Solicitor General of the United States, thus the Biden administration’s point person in making arguments before the court came back to say, repeatedly, that the conscience protection for those doctors would mean they don’t have standing in this case. Well, that’s really interesting. I wonder how consistently the Biden administration is going to argue for those conscience provisions, because there are plenty of warning signs that the pro-abortion left in this country wants to shut down those conscience rights. It’s interesting that it seemed to be quite necessary for her to make the argument that these doctors do have those conscience rights that would not be violated by the FDA policy.

Again, it’s going to be very interesting to see how long they continue to make that argument. Was it merely convenient for this case? It doesn’t seem to be consistent with the direction that the pro-abortion political class is taking. If we remove the question of standing, let’s just say the Supreme Court decides it is actually going to take this case. It’s still not clear exactly how this turns out. It’s going to be a case we’re going to have to watch very carefully, but, of course, we’re now going to have to wait probably until June to have the court’s answer to these questions. But for Christians, there are some massive issues here. Some of them are not under active consideration by the Supreme Court in this case, but they better be under our active consideration.

For one thing, we need to recognize the horrible reality at the heart of this. We really are talking about an abortion pill. Now, I know most Christians in the United States know that it exists, but did you have any idea that 650,000 women took it last year, 650,000? Just think about that for a moment. When you look back in Nazi Germany, and when you look at the most evil anti-life maneuvers of the 20th century, the idea that you could basically have a human pesticide, that appeared to be something of science fiction. Well, now, it’s fact, and not only is it fact, it’s reality, and it is increasingly the way abortion is taking place in the United States. I go back to the fact that the Guttmacher Institute indicated that in 2023, that’s the last full year of data, 63% of all abortions in the United States were by means of the pill. That is just one of the darkest developments I could imagine. So, one of the things that underlines is the fact that we’re a society that now says abortion is such an insignificant thing that it’s just a matter of picking up a pill, and going into the privacy of your home, and, well, all of a sudden, the baby disappears. 

Something else that came out in the course of this particular case is the fact that it’s a lot more unregulated than you might think. That’s a part of the cause of these doctors against the FDA. The FDA, they say, even broke its own rules in removing some of the safety mechanisms, and removing some of the timing issues. Pretty soon, is it going to be like what we see as the logic of the birth control pill, where it’s going to be over the counter? I think the dream of the abortion rights movement in the United States is to turn this pill into nothing more than a freely available human pesticide. I know that’s a very dark statement, but quite frankly, I don’t think words are capable of carrying the reality of how dark this is.

Part III

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Let’s Remember the Comstock Act: Why the Left is Looking to the Courts for Rescue

There’s another fascinating dimension of this that comes up, and many Americans are completely blissfully unaware of this. At the center of this case is actually an 1873 law. It’s known as the Comstock Act. Now, this goes back to Anthony Comstock who had a leading role in the federal government back during that era in seeking to fight vice. You know, as in vice versus virtue. The federal government back then thought that it was one of its responsibilities was to encourage virtue, and to discourage vice. Now, where did they get that idea? Now, I’m going to argue I got that idea from the Bible. In other words, one of the assignments given to government is exactly that, to discourage and limit vice or moral evil, and to encourage moral virtue.

I think that would’ve been incontestable as a civics matter for most Americans throughout most of American history. But of course these days, given the ideology of moral liberalism and autonomous individualism, you have so many people in the United States who say government has no right even deciding what is vice or is virtue. Going back to the Comstock Act again, 1873, it put very heavy restrictions on the interstate transfer of materials that were, I’ll just say, lewd and lascivious, were related to illicit sexual activity, and explicitly, there’s mention to were involved in abortion. Now, one of the big causes of that federal action, remember this is just after the Civil War. This is 1873. What’s going on?

Well, what was going on was that you had interstate business and prostitution, what we would now call human trafficking, the sex trade, and you also had a very dark business on the underside of American medicine in making abortion available. So, one of the ways the federal government responded to that was with the Comstock Act saying, “You can’t mail pornography. You can’t use the U.S. mails to send pornography. You can’t encourage vice by use of interstate commerce, and you can’t be involved in abortion on an interstate basis.” That is to say the states were still allowed to legislate within their own jurisdictions, but interstate matters are federal matters. Okay, so those who brought this case point out that right now, let me say that again, right now on March the 27th of 2024, the Comstock Act adopted by the federal government in 1873, duly adopted by Congress and signed into law by the President of the United States, the Comstock Act, here’s the deal, is still in effect in 2024.

Now, that’s an embarrassment. It’s a bit of awkwardness for the cultural Left, and frankly, it puts them in a political quandary, because if it’s federal law, there can be a federal law to repeal it and to rescind it or to replace it, but you know what? That is going to be a dicey thing for the Left. That’s why they don’t want to do that. They want to ignore it. They want to just ignore that the Comstock Act is on the books and is in effect, and they are really preferring that a court strike it down. That’s what they want. That’s what the Left wants. Let’s understand why. It’s because they don’t want to have to go on the record as members of the House and members of the Senate as repealing the Comstock Act, because that means repealing things that have to do with sexual morality and things that right now there are a lot of moral concerns about in terms of pornography, in terms of human trafficking.

That’s not an 1873 term. That’s a 2024 term, and this puts the Left often in perplexity. That’s why beginning with the great liberal turn in the 1950s, the progressive leftists turned to the court saying, “Rescue us because we can’t possibly fix this through legislation. We can’t put our names on this. Not enough people will put their names on this law, so we need you to strike it down.” That’s the reason, by the way, that so many of these older laws with very conservative principles are still on the books. It is because not even liberal politicians, by and large, want to put their names and reputations at stake for repealing these things. I say put them on the line.

This has been one of the reasons why conservatives wanted to correct the progressive jurisprudence of these courts by saying, “You don’t have the right just to act as if you are Congress.” So, it’s going to be very interesting to see how this turns down, and that’s why USA Today yesterday ran a front page article, the headline “Court Could Open Door to National Abortion Ban.” The subhead on the article is, “Long dormant 1873 law invoked in arguments to restrict Mifepristone.” Well, that’s interesting. Long dormant, that’s the term 1873 law. Why was it dormant? Well, it is because on the issue of abortion, Roe V. Wade contravened it, but when the Dobbs’ decision by the Supreme Court reversed Roe V. Wade in 2022, guess what? Game on. Mr. Comstock, your law is back.

We’ll be watching this case. I’ve tried to explain why it is so consequential and also why it’s complicated. That’s why this kind of case is exactly the kind of case that ends up at the United States Supreme Court. A decision is not likely until June.

Part IV

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A Tragic Parable of Human Civilization: Ship Crash Collapses Francis Scott Key Bridge in Baltimore

But finally, Americans have been transfixed. I don’t think there’s any other word for it. Over the course of the last day or so, by the video of the Francis Scott Key bridge collapsing there in Baltimore, it is a truly frightening video. It’s an image that simply sears itself into our imagination. You have this big cargo vessel, and you can see it in the dark approaching the pier of the bridge, and then there is impact, and then this entire U.S. interstate highway bridge basically just collapses into the river.

Sadly, there has been loss of life. As I speak to you, it’s not really clear exactly what the loss of life is. I think increasingly, it’s becoming clear because recovery and rescue operations are still underway, and the likelihood that anyone is alive at this point is incredibly unlikely. That is to say they haven’t been rescued by now, it is unlikely they’re going to be rescued at some point today. It is a very sad situation. Obviously, they’re grieving families. You have a shocked community. It is a situation that calls for Christian compassion. It is also a situation in which we recognize that many, many more people than will be the casualties of this particular incident die every single day of other things such as drug overdoses and all kinds of other things, automobile accidents.

But nonetheless, morally, it is very significant that we look at something like that video, and recognize human beings could do amazing things. We can build a bridge like that, named after the author of the Star Spangled Banner, you recall, Francis Scott Key. Right there at Baltimore, a crucial river is spanned, and thousands and thousands of cars go both ways across that river, or did until on Monday night, but they won’t for a long time. So, you are looking in one case at the fragility of human civilization. That bridge was something people had confidence in. They crossed over it. I don’t know how many thousands and ultimately millions of times. All it took was that one ship hitting that one pier, and the next thing you know, the bridge falls.

At some point, then it becomes a parable of human civilization. It becomes a parable of what human beings can achieve. What a remarkable thing. The human engineering, human construction, human design can produce a bridge that, but for that ship running into it, had stood and would have stood. At the same time, it becomes a parable of the limits of that kind of human ingenuity and human power. It appears, at least at this point, that that ship had lost power. It’s a big cargo vessel, a container ship, and at least the reports available to us at this point say that it was not under powered control. That’s why it ran into the bridge. So, that ship itself and the container shipping system, that’s an amazing thing logistically and technologically unto itself, but what human beings build, well, we can lose control of the things we build.

Before you know it, the ship that we built runs into the bridge that we built, and massive is the collapse. It’s also interesting how naturally we talk about all of this in a predictable natural order. We as Christians know that that’s not because of nature. It’s because of the Creator who made nature. One of the laws, and it’s so instructive, it’s the same principle that keeps us grounded on planet Earth. It’s the same principle that explains why when we get out of bed in the morning, we can walk on the floor. That same law of gravity also makes very clear that when there is this kind of accident, things fall down. They don’t hold up. Our first instinct should be to pray for and be concerned for, and to grieve with the people who have suffered loss, and also to recognize what a challenge this is going to be for a community, even with this major artery now just put out of service, probably not just for a matter of weeks and days, months, but probably for a matter of years.

That will have national ramifications, but we as Christians are also reminded that God’s truth breaks through. It breaks through in the most remarkable places, sometimes just every day on the playground. It also breaks through with huge lessons for our observation at the Supreme Court of the United States, and right now also with a fallen bridge in Baltimore. Everywhere you look, for Christians, lessons to be learned.