Monday, June 17, 2024

Part I

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Supreme Court Rules Unanimously in Case Involving Abortion Pill: Why This Ruling Is Not the End of Debate on the Abortion Pill and Both Sides in the Debate Know It

Last week, the Supreme Court of the United States in a unanimous ruling, turned down a legal challenge to the abortion drug mifepristone. This is big news, and it was expected to be big news. Frankly, there are a lot of Supreme Court decisions that are yet due before the court ends its term in a matter of just days, but this particular case is one that had a lot of importance for the Pro-Life Movement, and one number will tell you why.

About 60%, it is estimated, of all abortions performed in the United States right now are done by the abortion pill, medication abortions as they are known. This is something that is fairly new. The pill goes back a matter of decades in France, but its popularity in the United States is something that is now being driven not only by the economics of abortion and frankly even by the anonymity of being able to get these pills in many cases, but also by the Dobbs decision handed down by the Supreme Court that reversed the Roe v. Wade decision.

And even as there are state laws that are still applicable against mifepristone and other abortion medications in certain states, the reality is that this was a big case. It was a full attack upon the edifice of medication abortion. It was a straightforward effort to try to end the use of mifepristone, one of two drugs used by the way in medication abortion, and to do so by arguing for one thing that the FDA had rushed the approval process. Now, what’s really interesting, very important for us to note, is that this was a unanimous ruling by the U.S. Supreme Court. So, that needs to alert you to something. When you hear an issue like abortion, and then you hear a unanimous ruling, that tells you that there’s something going on here that isn’t really about abortion, really isn’t even about the constitution on abortion.

But no, there was another issue that was at stake in this case, and it was the sole preoccupation of the court when it came to this issue. They turned down the case on what is called standing. This is a long-standing principle of the United States Supreme Court. It is based in our constitutional system whereby the Supreme Court says that if you are going to bring a cause before the court, you have to have standing to do so. So, I can’t sue just anyone about anything in the federal courts. I have to have something at stake. For the court to take the case, there has to be some direct involvement by me, or another party, that would make the case sensical or in a more direct sense, give it standing.

There has to be some claim that I either have been injured or that an injury may come to me. That was the claim made by a group of doctors in the case that came before the Supreme Court was presented over the drug mifepristone. Several doctors in Texas argued that their civil liberties would be endangered if they were in the position where against their own consciences, they would have to apply mifepristone in terms of a medical setting, and must be complicit in abortion. Now, what’s really interesting is that the Supreme Court unanimously turned that back saying, “You don’t have the standing to sue. You can’t show any injury, nor can you show any likely injury because of this federal policy.”

So again, the issue was standing, and thus the simplest language adopted by the Supreme Court unanimously in this case was this, “Plaintiff’s lack Article III standing to challenge FDA’s actions regarding the regulation of mifepristone.” So, this is Article III of the United States Constitution having to do with the Supreme Court and limiting the reach of that court unless someone can say that they have standing to bring a case. In particular, this is a case that would come before the federal courts on a bedrock issue. But speaking of bedrock, here, you have the Supreme Court standing on what it claims is “a bedrock constitutional requirement that this court has applied to all manner of important disputes.”

Now, this is really important because the Supreme Court didn’t rule on the abortion pill. It’s really important to recognize the Supreme Court of the United States has not unanimously come down in favor of medication abortion. To the contrary, that is not the case, but it is going to have the effect, at least for now, of stating that the federal government is not going to issue any kind of ruling or injunction at the national level when it comes to this abortion pill, most importantly, mifepristone. The challenge again was through the process whereby the FDA, the Food and Drug Administration, had approved the drug. Now, here’s something we need to notice as Christians. The FDA did rush the process.

We need to notice that its definition of safe and efficacious in this case is something that has to apply in the most bizarre and immoral sense because it is bringing about the death of an unborn child, or at the very least, it is bringing about the end of a pregnancy. Now, on the issue of standing, conservatives need to recognize this is an important principle. It’s an important conservative principle, and thus, even as we are disappointed in the outcome of this ruling, and even as we know other cases challenging mifepristone are going to be coming up to the federal courts, it is incumbent upon us to recognize this issue of standing has importance.

Otherwise, everyone could sue almost everyone else, and claim that some federal court ought to hear the case and award some kind of jurisdiction, and that would be legal chaos. It is the left likely to push for that kind of chaos and continuous, if not endless litigation rather than the right. The late Justice Antonin Scalia, one of the most important of the conservative juries on the Supreme Court in the last century or more, he died in 2016. He once said that the issue of standing comes down to asking someone trying to make an appeal to the federal courts, “What’s it to you?” That was his street level way of saying, “You’ve got to prove that you’ve got some skin in this game.”

Some harm has come to you or will come to you by this policy or this action, this particular posture in this case by the federal government, a policy of drug approval by the Food and Drug Administration. Now, again, I just want to come back and say you’re going to hear people say that the Supreme Court unanimously ruled in favor of mifepristone, or medication abortion, or the abortion pill. That’s not true. It’s not even close to true. The court did not consider the merits of the case against the FDA, against mifepristone. It didn’t consider those issues at all, because it denied the fact that the plaintiffs had standing, and thus the case just came to an end.

Here’s where it is really important for us to recognize, this was a unanimous ruling. Now, that’s not to say they all agreed on everything, all nine justices. But these days, when you say unanimous, and there is association with anything as legally, culturally, and constitutionally divisive in terms of the courts’ action, at least, when you come to abortion, you look at that. You recognize, “Okay, if unanimous is attached to this ruling, there has to be something other than abortion, which was first and foremost at stake.” 

But now, we need to turn to the politics of the situation. This is even very evident in terms of the press coverage I was just talking about, but it’s really interesting right now when you look at, for example, democratic office holders who are looking at this and saying, “Hey, the Supreme Court ruling though it was unanimous. Though this case has been turned back, the abortion pill is not safe. Republicans want to end access to this pill. They want to use the Comstock Act and other legal and legislative mechanisms to try to end the sale and distribution of the abortion pill by mail.” By the way, is that intention true or false? It is certainly true. That is exactly what pro-lifers want to do. But when you look at what is happening on the other side, you see it is massively about two things, raising money and raising votes. You can see where, for example, democratic candidates and democratic office holders, they’re playing big time into this saying, “Don’t be confused. Abortion is still in danger. The abortion pill is still under attack. Even though there was this unanimous ruling by the US Supreme Court, you should not let your guard down.” 

So, interestingly enough, all of a sudden, you have pro-life and pro-abortion forces who are agreed on one thing, and that is that this particular ruling is not the end of the matter. You can see where this is going. For example, when you look at Ruth Marcus, associate editor of the Washington Post, who right after the court handed down this ruling, put out a column with the headline, “Mifepristone Survived One Legal Challenge, But Bigger Threats Loom.” It is also interesting that Ruth Marcus goes on to identify the larger threat, bigger threats.

In this case, what she suggests, what she points to as the threat is not so much other cases that may percolate through the federal courts. It’s not legislation per se. It is rather Donald Trump and the specter of a Republican presidency with a pro-life agenda. One other aspect of this, just in terms of the legal dimension here, as you look back to John Roberts, who has served as Solicitor General of the United States and the Bush administration, and then of course went into private practice before going back into the federal courts eventually being nominated to be the chief justice of the United States Supreme Court by then President George W. Bush.

It is important to recognize that back in the year 1993, the current chief justice, who was then not in the federal courts, had written a major law review article that turned out to be very influential about the issue of standing. In that article, it goes back, as I say, more than 30 years now. The current Chief Justice wrote, “It restricts the right of conservative public interest groups to challenge liberal agency action or inaction just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”

At least one person on the other side, you might say, of the constitutional interpretation aisle from the Chief Justice, I mentioned Walter Dellinger, who was a former acting US solicitor general once said that the chief justice is at least consistent in his confirmation hearings as chief justice. He spoke of the role of the federal judge in this case, of course applied to a Supreme Court justice or even the Chief Justice as an umpire in a baseball game. He said the job of the umpire is to accurately call balls and strikes. Walter Dellinger went on to say, “Before any judge begins calling balls and strikes, he must first make sure the batter at the plate is the actual player, and not just a fan who ran on the field.”

But before leaving this issue, I just want to turn to the moral realization that we’ve been told that 60% of all current abortions are by medication means. They are by Mifepristone in combination with another drug. We are now turning into a culture of chemical abortion. The culture of death is now hiding behind the label on a pill. The most chilling aspect of all of this is that the abortion pill is now so routinely used, and in moral terms, it is nearly invisible in terms of how abortions actually take place in the United States. In this case, it comes down to a matter of prescriptions filled. The culture of death wins another one.

Part II

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The Supreme Court Still Has Much Work to Do Before the End of the Term: Consequential Decisions Loom Large in Late June

But next, speaking about the Supreme Court, the Supreme Court is actually behind this year where it has often been at this point in the year. So, just remember that the Supreme Court every year goes into a summer recess. This is a longstanding tradition, and frankly, it’s pretty important to the operation of the court, and consider why. You have nine justices. They really can’t take breaks or vacations at their leisure. They have to basically operate as a court. They have to be available for work. As justices, they have to sit as a court, and they have to work in that sense in terms of their conferences in which they agree to take cases, in which eventually they debate the decisions to be handed down.

They debate in terms of their different opinions they will issue. That requires them to work with each other. It requires the Supreme Court to have an annual term, and thus during the summer break, and it’s a rather long summer break for the Supreme Court. It really isn’t going to be over until school is well underway in the fall. But as you look at it, that means that we are really nearing the end. Generally, an avalanche of cases have fallen somewhere in the month of June or even the first few days in July, but more frequently as you come to the end of the June month, and we’re running out of June, and we are not running out of big decisions that are pending.

The New York Times follows this not only in terms of the number of decisions that are still pending, but it goes on to identify some of the most important, and I’m quoting from the article by Adam Liptak, long-term observer of the Supreme Court. As he says, two thirds of the court’s decisions so far have been unanimous, which is characteristic he says of the Roberts’ Court, “Which tends to front load those decisions.” He then says, “If history is any guide, there will be little consensus in the coming weeks.” He’s talking about the fact that so many of the cases coming are likely to be a very divided court. These include, and I go back to cite Liptak’s article, “Whether Mr. Trump will face trial on charges that he tried to subvert the 2020 election, whether members of the mob who attack the capitol in January the 6th [this is the terminology of the New York Times] may be prosecuted under a federal obstruction law. Whether emergency rooms and states with strict abortion bans must sometimes perform the procedure, whether the government may disarm people under domestic violence restraining orders.” Three cases are still pending in which the issue is seeking to limit the power of administrative agencies. Conservatives have a lot at stake in those cases. You also have a decision pending on “an effort to undo the Purdue Pharma bankruptcy settlement.” Interesting, because that’s likely to have a lot of impact as a precedent. Then finally, “a challenge to a law said to make homelessness a crime.” So, all of those issues center in on very important social controversies, headline news, and they are likely to be divisive.

One of those reasons has to do with the volatility of so many of these moral and cultural issues, but the other issue has to do with how the Constitution is to be read. We are back to that major interpretive divide on the Supreme Court between those who believe in what they call more or less a living constitution. The words don’t change, but the meaning changes over time, and the conservatives who say, “No, the words mean what the words mean.” It’s a matter of vocabulary and grammar, and if you’re going to change the Constitution, do it honestly by amendment. You can’t do it by declaring this to be an evolving document. So, conservatives need to recognize there is a lot at stake here. Again, just to state the obvious, when it comes to this many cases, we’re running out of June, it’s going to be an interesting couple of weeks.

Part III

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The War for the Sanctity and Dignity of the Embryo Rages On: The Culture of Death Responds to the SBC’s Resolution on IVF

But next, speaking of an interesting couple of weeks, we had several denominational meetings last week. One of them was the meeting of the Southern Baptist Convention. Last Thursday on The Briefing, I talked about the resolution adopted by the Southern Baptist Convention expressing urgent moral concerns about the practice of IVF or in vitro fertilization, advanced or assisted reproductive technologies. Big concerns there, and the big concerns have to do with the treatment, and mistreatment, and eventual destruction of what will amount to hundreds of thousands if not millions of human embryos.

Again, it comes down to whether or not we mean it when we say that human life, human dignity, the sanctity of human life begins at fertilization, or whether we didn’t ever mean it, because if we didn’t mean it, we have been lying to people about our stance against abortion. But if we meant it in terms of abortion, we don’t have any right to abandon that very clear moral judgment when it comes to something like IVF. Now, of course, we have full sympathy with Christian couples, and this means married couples, a man and a woman who are seeking a baby, and have been heartbroken in their attempts to conceive a child. So, we need to pray for our brothers and sisters in Christ.

We need to understand their plight. That doesn’t mean, however, that even as every single child is to be welcomed without moral condition. Not every context, not every moral act, not every technology that could bring a pregnancy about is morally justifiable. I think we all know that. You can’t do just anything for the good of having a baby. Furthermore, when you take IVF, we’re already talking about what are estimated to be over a million so-called excess human embryos. Just think about that for a moment. If we really do believe that life begins at fertilization, at conception, then when we talk about over a million frozen human embryos that are destined for destruction, we are talking about more than a million human beings who just happened to be right now in the embryonic stage of development.

So again, we either believe that or we do not, and I think evangelicals believe it. I think that’s why a clear majority of messengers to the Southern Baptist Convention last week adopted the resolution that expresses such deep moral reservations about IVF, and says that Christians must apply any medical technology only in ways that are consistent with the full dignity and sacredness of human life at every stage of development. In other words, there can be no mistreatment of the embryo, but the reason I’m turning back to it today is because of two responses in the press. The first of these was on the cable television network, MSNBC. So, you might say, “That’s pretty predictable.” MSNBC is the left or the far left in terms of American culture.

It’s hard to imagine there could be any kind of consistent pro-life voice on MSNBC at all, but we are talking about Joe Scarborough here who had served as a Republican member of Congress, and was identified with the pro-life movement, I think in retrospect probably wrongly identified, but he did make some very clear pro-life votes when he was in Congress, but you wouldn’t know that now. He is now very much a fixture on this liberal streaming television news network, and he is predictably pro abortion. I didn’t say pro-choice. He is basically pro-abortion. He’s against restrictions on abortion, and he’s gone on rants from time to time.

I’m turning to his most recent rant, not just because it’s directed at the Southern Baptist Convention, but because he makes an argument we simply have to confront. His argument is that the Christian Church for the better part of 2000 years was pro-abortion or at least pro-choice. He uses the term, pro-choice. So, he goes on and says, “If you’re actually interested in looking at the history, and if you’re actually interested in the facts, you can trace it back.” In his diatribe, he said, “Well, I mean… I’ve talked about this before. I mean, from the birth of Christ through 1980, Southern Baptist Church…” I think he meant to say just the church was pro-choice. I mean, there’s nothing revealed over those almost 2000 years that made the Southern Baptist Church.”

Again, it’s not the Southern Baptist Church. It’s the Southern Baptist Convention. I go back to his quote, “And other mainline protestant church go pro-life. They did so for political reasons.” Well, he’s done this before. He goes off on these rants, but the fact is he doesn’t have a clue what he’s talking about. If this argument goes without correction and refutation, I think a lot of people are going to be confused. The Christian Church didn’t suddenly become pro-life in the 1980s as part of some conservative political plot. There were those who used the issue, of course, the way liberals used their issues in order to build a political coalition. But the fact that the Christian Church, and by the way, the Southern Baptist Convention didn’t exist until 1845, so don’t go looking for it in Bethlehem.

But the point is that when he says that, I can just state it generously, “The Christian Church has been pro-choice for 2000 years,” that is absolute nonsense. For one thing, it’s nonsense in the Scriptures. Secondly, it is nonsense when you look at evidence such as in the early church where some of the earliest pastoral teaching, some of the earliest theological codes, a document known as the Didache, which is one of the most important teaching documents of the early church, made very clear that to be a Christian means you cannot have an abortion. You cannot participate in abortion. This is something that comes up again and again in the history of the Christian Church where, by the way, there is such a doctrinal pro-natalism, which is to say a pro-birth position that abortion would be abhorrent.

It would be nearly unspeakable, which is one of the reasons why the Christian Church doesn’t speak about it a lot until it has to. But one of the interesting things about someone like Joe Scarborough is that they can make an erroneous argument, and they can just keep making it and making it and making it. Frankly, this is something that can happen at either end of our political spectrum, but the point is on MSNBC, you just got to be pro-abortion, even if the arguments you make are non-historical, absolutely ridiculous, and by the way, very easily proved wrong. But the second media development I want to talk about is a response to the SBC, which turned out to be specifically a response to me, by Eugene Robinson, a prominent columnist for the Washington Post.

This was an article published at the Washington Post entitled, “IVF should Be Left Alone.” He takes on the SBC action warning people on the left that it’s further evidence that abortion rights, “reproductive freedom” is under attack, but then he goes directly at me criticizing my defense of the IVF resolution, and support for it from the beginning. He just quotes as if this is ridiculous, my statement, that IVF is wrong from a Christian position because God has said let there be life, and that it represents the alienation of reproduction from the conjugal setting of marriage. That’s because it obviously does, and this is a very deep Christian concern.

He goes on to say that I had stated without evidence that “much of the market for this is actually not even found among heterosexual married couples, but in the redefinition of marriage, the redefinition of gender, the redefinition of all things in light of the LGBTQ movement.” He said that I did that without evidence. Well, the evidence is in his own newspaper. I’m not going to take the time to direct him to it, but you’ll notice all the articles celebrating the fact that same sex couples, single women, you go down the list, those identified with the LGBTQ movement and over the weekend, even one identified as a transgender man, that’s the term that is used thinking about becoming pregnant by means of IVF.

Yep, you heard it here. All that is in his own newspaper and in other associated newspapers, media sources of the media elite. He knows it. He then goes on pointedly at the conclusion of his article, comes back to me. He says, “Mohler speaks for a minority that believes all abortion from the moment of conception is murder.” Well, that’s exactly what I believe. He gets that right. But you’ll notice that in his article, he supports a woman’s right to abortion, and it is not clear that he believes there should be any limit on that. So at the very least, I would say we hold two directly contradictory positions, and I think both of us know it.

He also basically warns that those like me, or like the messengers to the Southern Baptist Convention who are urging action on this are a threat to the very edifice of abortion. I come to conclusion today by saying, I certainly hope so. We obviously have a lot of work to do, and frankly on this issue, it’s not just the work, the challenge that we face in the larger culture. Let’s be honest. We’ve got a lot of work to do about this issue when it comes to the local church, when it comes to many who consider themselves evangelical and in any other context consider themselves pro-life, but this is where we need to listen to ourselves very carefully. We have been saying for years that life begins when those two cells come together, and God says, “Let there be life.”

We either believe that or we don’t. If we do, it comes with all kinds of moral consequences. It is also incumbent upon Christians to understand what is at stake in this and what is always at stake in this, which is nothing less than the image of God and human dignity and the sacredness of human life, but let me give you another word of warning. If human life is not considered sacred when you can’t yet see it, faster than you know, hauntingly fast, it will be denied when you see it with your own two eyes.