Monday, June 24, 2024

It’s Monday, June 24, 2024.

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

Part I

How We Got Here: Re-Examining the History of Abortion in America Two Years Post-Dobbs, a Half-Century After Roe

Two years ago today, the United States Supreme Court made constitutional, moral, and national history by striking down the Roe V. Wade decision that had legalized abortion in 1973. So almost a half century after Roe V. Wade was infamously handed down, the Supreme Court of the United States responded in the case known as Dobbs, Dobbs versus Jackson Women’s Health. The Supreme Court ruled that the Constitution neither articulates abortion. It doesn’t include the word. It doesn’t include the concept, nor is there in the Constitution any right to an abortion. So, the United States Supreme Court, two years ago, made history.

As we know, looking backwards over the last two years, and looking at our contemporary context, the challenges before us, it is clear that a lot of Americans, an overwhelming number of Americans, and for that matter, an unfortunate number of American Christians, really do not understand what is at stake and why on this two-year anniversary, we really need to think these issues through once again, but let’s go back to 1973. Let’s go back to when the Roe V. Wade decision was handed down. Let’s understand what was going on there. By the time you reached 1973, a couple of huge developments had come together. One of them was the sexual revolution. The sexual revolution was that massive redefinition of sexuality, of sexual ethics. Of course, it gave birth to everything until today’s world in which you have no-fault divorce and for that matter, confusion over gender, the LGBTQ agenda.

But going back to the 1960s and the 1970s, the argument was for sexual liberation and women’s liberation, and understood is key to all of that was a redefinition of sexual ethics. That was, of course, made possible by the twin developments of modern birth control methods, particularly the pill and the legal developments, including the Supreme Court all of a sudden discovering that like abortion is not mentioned in the Constitution, birth control is not mentioned there either. But, liberals on the Supreme Court had at that point developed a mode of constitutional interpretation in which they could all of a sudden find new rights in the U.S. Constitution. Unfortunately, that’s what produced the Roe V. Wade decision in 1973.

When the case was announced, when it was handed down in 1973, it was Supreme Court Justice Harry Blackmun, who had authored the majority opinion, basically developed the logic of Roe, and it was he whose words were heard when the decision was announced. Justice Blackmun said, “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views even among physicians, and of the deep and seemingly convictions that the subject inspires.” The court went on to say, remember, this is January of 1973 “one’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family, and their values and the moral standards one establishes and seeks to observe are all likely to influence and to color one’s thinking and conclusions about abortion.”

Those were early words in the Blackmun majority decision, a seven-two decision, by the way, that struck down state laws that would totally restrict abortion, and would invent, the Supreme Court majority would invent, a new right to abortion, grounding it in a new right they had declared about a decade earlier, a so-called right to privacy. Thus when Roe V. Wade was announced, it was seen as an absolutely capstone victory for the women’s liberation movement and also for the movement of sexual liberation and the redefinition of sexual ethics. I wanted to read those introductory words to the Roe decision, because I just wanted to point out that without using the word worldview, Justice Blackmun employed just about every other word to describe the fact that he was picturing here the opposition of two different worldviews, one that would be pro-abortion, and one that would be pro-life.

But it’s really interesting that Justice Blackmun at least understood the momentous scale of what the court was doing. It was inventing a new right. It was declaring the right for a woman to terminate the human life within her, at least within certain parameters as marked off with three different trimesters during a pregnancy, but Roe V. Wade was more than just a decision about abortion. It was that capstone decision after so many other decisions that basically redefined the entire moral landscape and, as we’ve seen, the entire constitutional and legal landscape as well. That’s the reason why the Roe V. Wade decision basically had to be confronted head-on.

The big question was how in the world that would happen and how long it would take. I don’t think the early pro-life activists in the 1970s really understood that it was likely to take a half century for the appropriate case to come with a newly composed court. Yet, that’s what it took. It took basically a half century. It certainly involved all of a half century by the time you get to the submission of the arguments for Roe, and then the handing down of the decision in Dobbs. In both cases, there was the understanding that this is a massive worldview clash.

In announcing the Dobbs’s decision in 2022, Justice Samuel Alito said this, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception, and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality. Still, others in a third group think that abortion should be allowed under some, but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.” So, you’ll notice in both cases, separated by 50 years, the justices in their leading comments acknowledged there is a vast worldview conflict that is very apparent here, that is unavoidable here. And, at least in the case of Justice Alito, two years ago in the Dobbs’ decision, he went so far as to say it really is a distinction in worldview, and a distinction in moral claim that comes down to the distinction between life and death.

In the court’s ruling, the Dobbs’ decision stated this very concisely, “Held, 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.” So, that’s just an economy of a few words. But in those few words, the Supreme Court in 2022, two years ago today, announced that the Constitution does not confer a right to abortion. It doesn’t imply a right. It doesn’t state such a right. The founders and framers of the Constitution would not have envisioned such a right. It was a right, an artificial right that was claimed to have been invented or found by justices back in the 1970s, and it does not withstand constitutional review.

Justice Alito got right to the heart of it when he wrote, “Roe was egregiously wrong from the start. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” So on this second anniversary, I want us to understand what is at stake here, first of all, when it comes to matters of life and death, and when it comes to the truth that every single human life is to be protected from every moment from fertilization until natural death, and that it is grounded in our view in the understanding that unborn Americans are not merely unborn citizens. Human beings from the moment of fertilization are beings made in the image of God. Thus, their life is to be protected, and the sanctity of their life is to be respected.

In their book, looking back at the Dobbs’ decision and the issue of abortion in the United States, New York Times reporters, Elizabeth Dias and Lisa Lerer, they write this, “For decades, Roe had been a symbol of American ideals. Its fall was a symbol too of a new set of values that had taken power in America. Roe understood for years by liberal America as an embodiment of freedom and equality for women, was replaced by Dobbs, a decision that conservative Christians saw as a manifestation of the primacy of life, and the conservative lawyers believed corrected the legal overreach of the 1960s and the 1970s.” So even though these two writers, Elizabeth Dias and Lisa Lerer, even though they are very much pro-abortion, and that becomes very clear in their book, and even as they would write of Roe in positive terms, and Dobbs here in negative terms, they do write quite honestly about the fact that what we are witnessing here is a clash of two different understandings that goes all the way to the question as to “What is the Constitution?,” “How is the Constitution of the United States to be interpreted?” But then even more basically, “Is the unborn child a human being made in the image of God to be preserved, or is the key issue a woman’s right to abortion, bodily autonomy, what is often now redefined in the pro-abortion movement as a woman’s reproductive health?” What we’re looking at here is a clear clash. It is an absolute collision, and one of the lessons you learned by looking at the Roe decision from 1973 and the Dobbs decision from 2022 is that it’s basically one way or the other. It’s virtually impossible to imagine a halfway house between Roe and Dobbs.

Now, we’re going to fast-forward to where we are in 2024 in just a moment, but let’s go back and understand that in 1973, when the Roe decision was handed down, people in both parties, basically the leadership on both sides of the American partisan equation, thought that the United States would basically get in line and move on. If you were to look back at the Democrats in 1973 and the Republicans in 1973, one of the things you would discover is that there were anti-abortion figures in both parties, and there were basically pro-abortion figures in both parties, and there were a lot of people in both parties who just wanted the issue to go away. You go back to the early 1970s, and you understand that America is indeed dividing over basic moral issues.

But, even as there are so many controversies about all kinds of sexual issues, all kinds of civil issues, you could just go down the list. The reality is, that most people at the time did not understand that the chasm is as wide as it would become. That’s why the partisan map of the United States was utterly transformed during the 1970s. The issue of abortion did not really divide the two parties in any significant way. Going back to the early 1970s, by the time you reached the 1980 presidential election, remember that was incumbent Democrat Jimmy Carter challenged by Republican nominee Ronald Reagan. That was the first time you really had a divergence on abortion in the two-party platforms.

Fast-forward another 20 years, it’s going to be very difficult to find a pro-life Democrat, and it’s going to get very difficult to be elected if you are a pro-abortion Republican. That’s because the worldview issues are simply so stark. You’re going to either believe that the person in the womb is to be protected, and that means is to be protected with legal protections, with legal strictures, or you’re going to believe that it’s basically just a matter of a woman’s choice and what you define as a woman’s reproductive health, which means you have to basically say that that unborn human life is not morally significant, unless the woman declares it to be morally significant. That’s another one of the great clashes here. The pro-life movement says, “Every single human life is a matter of grave moral concern.” It demands moral protection, not just when we want it to be protected, not just when it’s recognized.

Yet, the heart of the pro-abortion movement, and that’s becoming more and more clear because that movement’s becoming more and more radical. The arguments it’s now making are more and more expansive and non-conditioned. What you see now is they’re basically saying that that unborn child deserves to be protected if the mother wants it to be protected, and thus you’re looking at a giant shift in terms of moral worldview here. Something else I want to encourage Christians about is that the definition of the moral issues related to the sanctity of human life, and the evil of abortion, even among Christians, those issues have been very confused. Going back to the 1960s and the 1970s, frankly, an awful lot of American evangelicals never had a conversation about abortion.

I think it’s probably fair to say they had sought to avoid a conversation about abortion, but they didn’t have any choice after the Supreme Court handed down that decision in 1973. Now, it is a matter that is unavoidable on the American political landscape. Now, as I said, it wasn’t unavoidable because one party said, “Hey, we’re going to be pro-life,” and the other one said, “We’re going to be pro-abortion.” No, because at that time, basically in a bipartisan fashion, an awful lot of elected officials just wanted to get on with the program. “Let’s put this behind us. Let’s assume that this has settled law, and let’s talk about other things.”

But of course, this is where Evangelical Christians and others came to the conclusion. We can’t just shift the subject, we can’t just go along with this. We have to understand that this is an insidious assault upon human dignity, and it cannot be allowed to stand. I want to also underline the fact that if you go back to the early 1970s when Roe was handed down, there was virtually no political prospect that that decision would ever be reversed, that there would ever be a clear pro-life consensus in either party, nor that it would be possible to elect presidents who held to a pro-life conviction, and would actually appoint justices who would follow through on a conservative understanding of the Constitution, which is to say they would be bound by the text, and they wouldn’t be inventing new modern rights.

But, it’s just really important for us to understand that if early Christians and pro-life activists had not been making those arguments, if they didn’t start from way behind with a fervent commitment to make the arguments and to fight the battles, and to march in the parades, and to simply take the opportunities to elect the candidates, to articulate the policies, to advocate for legislation, and to push for the right nominations to the United States Supreme Court and to other judgeships, if those things had not happened, we would not be having this conversation. We would not be looking back at the second anniversary of Dobbs.

Part II

Dobbs Was Necessary But Not Sufficient: The Pro-Life Movement Faces a Huge Challenge in Our Current Cultural Climate

But just to point to the scale of how the development of this issue had taken place, if you go back to the Roe V. Wade issue, you look at the development of that case. Back in the early 1970s, there were 23 friend of the court briefs that were submitted by both sides, 23. When it came to the Dobbs’ decision, it was 140. That just shows you just by friend of the court briefs how the argument had developed. We’re talking about a much more expansive argument. On the pro-life side, we need to understand that American pro-life activists and right at the center of those activists, you have American Christians. American Evangelicals were a little late to the scene, but when we got there, we got busy. We had to argue a case that hadn’t been made before. We had to make arguments that hadn’t been required before. They’re required now. As we think about the second anniversary of the Dobbs decision, we need to understand that the biggest lesson is that it was absolutely necessary, but it was not sufficient.

It was absolutely necessary that Roe be reversed, and we need to thank God. We need to thank God with sober and with determined hearts, with thankful hearts that Roe was reversed. But we need to understand that ever since the Dobbs decision and the reversal of Roe happened, the pro-life movement’s been on the defensive in the United States, and we are so in the year 2024. A lot’s going on there, but at least part of it is that you had a lot of politicians and others who described themselves as pro-life turned out to be pro-life when it was convenient to make the argument, but not so pro-life when they have to take responsibility in the current political climate. So as is so often the case, when you win something big like this at the Supreme Court, all of a sudden, the responsibility falls upon your side of the argument.

That’s when you find out how many people that said they’re on your side really were, because the political stakes have gone up. You can see how the Democratic Party’s increasingly making abortion its key theme in terms of the reelection of President Biden and Vice President Kamala Harris and the Democratic ticket, and in particular in Congress, but also in state races, even headlines in the last 24 hours, making very clear that on the second anniversary of Dobbs, you can count on the Democratic administration, the Biden administration, issuing all kinds of messaging about how outraged it is, and how determined the Democrats are to find a legislative way to put Roe back in force.

By the way, as we point out, that’s not even intellectually honest, because the Democratic Party, as it is committed now, would by no means be satisfied, even with the pro-abortion position of Roe. They will press for abortion paid for by the taxpayer, by coercion in virtually every conceivable circumstance without limitation or boundary. Now, remember the clarity of what we’re talking about here. In the Dobbs’ decision two years ago today, the court majority held, “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.” Remember that Justice Alito’s majority opinion made very clear that there is no mention of abortion in the Constitution.

Frankly, it was not a matter of American constitutional law until the United States Supreme Court decided that it would be by deciding to invent a new right in 1973. It’s very important to notice how the dissenting opinion, these are the very outraged liberals on the court, that will be Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor. It was an opinion written by Justice Kagan joined by Justices Breyer and Sotomayor. Here’s what Justice Kagan drafted and the other two also agreed to join, “For half a century, Roe V. Wade and Planned Parenthood of Southern Pennsylvania versus Casey have protected the liberty and equality of women. Roe held, and Casey reaffirmed that the Constitution safeguards a woman’s right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life. It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality meant giving her substantial choice over this most personal and most consequential of all life decisions.” The justices in dissent went on to say, “The court struck a balance, meaning Roe, as it often does when values and goals compete.” The dissenting justices then accused the majority of discarding that balance. The new decision, “Says that from the very moment of fertilization, a woman has no rights to speak of.”

So, you’ll notice the shift there. I just wanted to point to this language because when the decision was handed down two years ago, we did note the language. But over time, over the last 24 months, those particular words hang with incredible heaviness. So here, you have the three liberal justices basically acknowledging that there’s no reference to abortion in the Constitution, but still going on to claim that the Constitution, “Safeguards a woman’s right to decide for herself whether to bear a child.” Now, the economist Thomas Sowell says that the main division in worldviews is between the constrained and the unconstrained. We will look at that in greater detail at another time, but just understand what he’s talking about there.

He’s talking about whether we see the world as one in which we are constrained, or we see the world as one in which human actors, human beings, are not constrained. I think it’s a brilliant insight. In this case, you’ll just notice that here you have justices saying that even though abortion is not in the Constitution, we shouldn’t be constrained by the words. Even though it would’ve been implausible, indeed, virtually impossible to imagine that the framers of the Constitution could ever have imagined anything like a claim of a woman’s right to abortion, you’ll notice that here, it simply stated that it’s a constitutional assurance. It’s a constitutional protection. Why? Because in their view, judges have the ability, and I think on the left, they would say even the responsibility, to find new rights within the Constitution. They’re not finding them in the words. They’re finding them in the context of a changed moral order.

Part III

The Fight for Life Rages On: The Electoral and Political Battleground the Pro-Life Movement Faces on the 2 Year Anniversary of Dobbs

All of this just underlines the fact that we are, today, standing at one of those moments in history when we need to look back two years, and understand two things. First of all, how thankful we are that the Supreme Court of the United States struck down the Roe V. Wade decision, that infamous decision that led to untold millions of deaths in the womb, and also stated that the U.S. Constitution includes no right to an abortion. It returned the question as the holding said to the elected representatives of the people. Of course, the big question right now is, is that going to mean the states, or will you have Congress get involved in this?

On the Democratic side, they’ve been very clear. If they win the White House in November, and have control of both houses in the legislature, they’re going to press through what I can only describe as radical pro-abortion legislation at the federal level. That would mean quite honestly that all the gains in the Dobbs decision could be almost instantaneously wiped out. On the other hand, we have to recognize that if the issue does stay at the states, we have a state-by-state battle, and in some states, you already have very clear pro-life convictions translated into policy. Just for the sake of argument today, we could say virtually half of the states. It’s not half of the U.S. population, but it is about half of the states.

In some of the other states, you have such a pro-abortion worldview in place, and such a political power structure in place, It’s very difficult to imagine how long it might take to return those states to anything like a pro-life position, but here’s what we need to understand. If you go back 50 years before the Dobbs decision, then you’re pretty certain that it’s almost impossible to reverse Roe V. Wade. Let’s be thankful that there were those who said, “You know what? With human eyes, it may look impossible, but we have to work at it, and we better start working at it right now.” So on this two-year anniversary, I just want to remind Christians, we really are committed to a pro-life ethic, not just because we’re very determined on the issue of abortion, but because we understand the sanctity and dignity of human life, and we understand that every single human being is made in the image of God.

Thus, we have this responsibility, and it’s daunting. We need to recognize we suffered significant electoral losses since the Dobbs decision was handed down two years ago today, but that should just increase our determination to stay in this fight as long as it lasts, because we have to come back to where we began. The great issue here is a matter between life and death. I just want to remind us as I spent time looking at those opinions handed down, the majority opinion and the dissenting opinions in the Dobbs case, let’s just state really clearly that the justices on both sides of the issue did see clearly what was at stake. It would be an incredible sign of unfaithfulness if many Christians in the United States do not see, even refuse to see, what those justices on the United States Supreme Court did see very clearly.

Now, when I was a boy growing up, I overheard many things, including the moral advice to choose your battles carefully. Let me just remind Christians, we did not choose this battle. This battle chose us, and there we are.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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