Living in a Post Roe World!

Intro

Romans 13:1–7 ESV

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. Therefore one must be in subjection, not only to avoid God’s wrath but also for the sake of conscience. For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed.

What about civil disobedience?

We have some example in Scripture from Exodus to Daniel in the OT. In the NT we have...

Acts 4:19–20 ESV

But Peter and John answered them, “Whether it is right in the sight of God to listen to you rather than to God, you must judge, for we cannot but speak of what we have seen and heard.”

Acts 5:29 ESV

But Peter and the apostles answered, “We must obey God rather than men.

3 Postions on Civil Disobedience.

The anarchist view says that a person can choose to disobey the government whenever he likes and whenever he feels he is personally justified in doing so.

The extremist patriot says that a person should always follow and obey his country, no matter what the command.

The position the Scriptures uphold is one of biblical submission, with a Christian being allowed to act in civil disobedience to the government if it commands evil, such that it requires a Christian to act in a manner that is contrary to the clear teachings and requirements of God’s Word.

Christians should resist a government that commands or compels evil and should work nonviolently within the laws of the land to change a government that permits evil.

So if Roe is not overturned there is no reason to resort to an extremist or anarchy position that promotes unrest or violence.

But as we will also see . If Roe is overturned. We should be cautious of celebration too.

What are the implications if Roe vs Wade is overturned?

Is Roe versus Wade being overturned? What would this mean for abortion rights? What would it mean for the pro-life movement? What was the reasoning behind the decision that was leaked? Today, we're to discuss some of the implications of the leaked first draft majority opinion by Justice Alito, and if we have time, take some questions at the end.

Who leaked it and why?

I think that's the stuff that everybody wants to know about, but I don't think we will. There's been speculation that folks on one side or another who leaked it. I think there's probably a little more rationale for one side than the other. But I think the second thing is that the response to Alito's draft I think shouldn't have surprised anybody if you were paying attention, because this has been hinted at for some time, we knew this might be where it was going after oral arguments, and both sides have been preparing for this for a long time. Anybody who paid attention who claims to have been surprised by this is being disingenuous. I think some of the politicians who they thought the world's ending here, they should've been the least surprised by anybody.

Will this end abortion?

I think as far as it goes for the unborn, I don't think much is going to change as a result of the overturning, because all the recision will do is turn it back to the states. Roughly 25 or so states have indicated that they're going to put significant restrictions on abortion, but the other 25 will probably have something like what California has already said they're going to do and become a sanctuary state for abortion. So, it's definitely not the end of abortion rights.

It's a good day for the unborn, because it will be more difficult in half the states to get abortions.

But in those 25 states, just as we've seen in Texas and Mississippi since these rulings, a significant drop in abortion is going to result in lives being saved. But how many, of course, remains to be seen.

Unintended benefits?

One of the unintended side effects of this will be actually to reduce the polarization in the culture, because instead of having one overriding federal law that's shoved down everybody's throat in everybody's state, you've got different states are able to make their rules according to what the consensus of their population is. So, I think you'll see a pretty deep swath of the south and the Midwest that will restrict it pretty significantly, but on the coasts, Illinois, other parts that are more typical liberal democratic states, I think you'll find that abortion rights will be protected. So, there will be places to go for anybody who has their own particular view on abortion.

It's an initial idea that the rhetoric may tone down or the division may tone down, because in this ruling that Alito released, he said that people called Roe and then Planned Parenthood versus Casey in 1992 and said, "This is the final debate. It's over," and they wanted to lower the temperature. If anything, it went up and got worse.

What Alito says “ We don’t have any guess where this is going to go with the rhetoric.” And that is not what they're responsible for in division. What this has the potential to say is.... This is not being decided from the top down. Go work through the legal system and go persuade people of your position. It seems as pro-lifers, we would actually invite that.

What a concept that people would be persuading one another instead of shoving it down our throats. I think that's a good change, and I think that bodes well for the pro-life argument. Although, I think most states I think have already made up their minds. Depending on where the decision goes, they'll go forward in a certain direction. But I think the idea that nobody shoving something down everybody's throat by state is a good thing. So, I think we'll see how the debate goes. Who knows? I think if you read the editorials , you would've thought that there's violence in the streets that's going to be happening tomorrow.

I think you'll see both sides out, being public. Hopefully we'll see some of those public demonstrations that actually have reasons, instead of just stating the position and calling the other side names. That's not healthy. But if you have real legislative debate, that's a good thing. I think that bodes well for the unborn. The court, I think essentially what they will do is the same thing that they did with the assistant suicide decision 20 five years ago, because they refused to say that the state of Washington in that decision could not prohibit. They said they could allow it, they could prohibit it, but they said, "We are not making a decision. We're leaving that to the states to decide." The states have done that. Not every state has passed laws on assisted suicide, but a lot of them have, and we don't see acrimony about assisted suicide like we are being led to believe that we'll see about abortion here.

What exactly did Roe vs Wade and Planned Parenthood vs Casey do?

I think it might be helpful if we clarify exactly what Roe did, what Casey did, and what this case called Dobbs versus Jackson Women's Health Organization, which is in Mississippi, a Gestational Age Act does. So, just very briefly, what did Roe do in America in 1973?

Roe allowed abortion up until the point of viability, which in 1973 was at the end of the second trimester. They divided it in three trimesters, only because nine is divisible by three.

That's the only reason. One of the striking things that has come out is the admission by Justice Blackman who wrote the majority decision in 1973, that those divisions were completely arbitrary.

So, what Roe versus Wade did, I'm going to read here, this is in the ruling from SCOTUS, is it says

for the first 185 years after the adoption of the constitution, each state was permitted to address this issue in accordance with the view of its citizens. Then in 1973, the court decided Roe versus Wade, even though the constitution makes no mention of abortion, the court held that it confers a broad right to obtain one.

That would be after viability. Now, here's the thing. I'm going to read some stuff from the ruling that I think might be helpful. It said it imposed the same highly restrictive regime on the entire nation, and it effectively struck down the abortion laws of every single state. Justice Brian White put in his dissent the decision represented the exercise of raw judicial power. That was 1973.

Now, very quickly, what Casey did in 1992 was, here's a quote, again, this is from the opinion that has leaked, it said,

"Casey, throughout Roe's trimester scheme, substituted a new rule of uncertain origin under which states were forbidden to adopt any regulation that opposed an undue burden on a woman's right to have an abortion."

So, they forwarded the argument for Roe versus Wade, but in a sense, just shifted it from viability to undue burden. Now, the Mississippi law, which is at the heart of what the Supreme Court is considering right now, does this. It says, again, I'm reading the leaked opinion of the court written by Alito, it says,

"The state of Mississippi asked us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy."

So, what this new law does that looks like is being upheld by the Supreme Court, is it pulls back from Roe clearly viability and says at the 15th week a state can restrict abortion. Now, keep in mind, the majority of abortions are before this time. 15 weeks is about three and a half months. But what this does is by upholding this law, it gives precedent for the states to not follow Roe, to not follow Casey, and to go back to a Federalist kind of case and make their own. That's what is at stake. Now, what has the court ruled? I would encourage all of you, if you have a chance, the ruling is online. It's a rough draft in the sense that it might be edited for grammatical changes, but it seems to be pretty close to being final.

Here's what they wrote on page five. This is the majority, and it seems like it was a five justice majority. It says,

"We hold that Roe and Casey must be overruled. The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

This is a strong denunciation of Roe. But at the heart, this ruling says it very, very clearly. It says.

"We begin by considering the critical question whether the constitution, properly understood, confers a right to obtain an abortion."

Three things to consider.

The first one is,

Is the right to abortion in the constitution?

No.

What was the purpose of the constitution?

You can look high and low, all the way around. I think it's important to recognize that what the constitution did, it was not create rights. It recognized them. It recognized God given fundamental rights that had been a part of common law and natural law, and recognized widely as such. Even in 1972, 46 of the 50 states had lost prohibiting abortion, hardly a moral consensus that was about to be recognized. The same was held with assisted suicide, that there's no longstanding tradition of a right to die and no reason for the court to recognize it.

The leaked ruling makes this clear.

"The constitution makes no express reference to a right to obtain an abortion, and therefore, those who claim that it protects such a right must show that the text is somehow implicit in the constitutional text."

Now, they walk through how there's at least five different constitutional provisions, first, fourth, fifth, ninth, and 14th amendments that people have tried to make this case, and they all fail. Here's what's really interesting that's written here. Alito says,

"The message seemed to be that the abortion right could be found somewhere in the constitution, and that specifying its exact location was not of paramount importance."

That's a pretty damning thing.

Let me read one more line,. At the very end, they said this.

"We must ask whether the 14th amendment means what it means by the term liberty. When we gauge that inquiry in the present, the clear answer is that the 14th amendment does not protect the right to an abortion,"

People have known this about Roe for a long time, and many pro-choice people have conceded this.

Some of the most interesting concessions came right after Roe V. Wade was passed by Ruth Bader Ginsburg, for example, who decried that it was wrongly decided. She was actually very concerned that the court overreached and it would interrupt legislative momentum that she saw happening in a number of states.

I think it's just a huge stretch to think that the founding fathers gave their lives so that women could kill their offspring. That's a big stretch, and that's why it's nowhere in the constitution.

Now, the second question that the ruling looks at is, is the right to abortion rooted in our nation's history? They say,

"Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion."

Zero. None.

"The earliest constitutional right to abortion that has come to our attention was published only a few years before Roe."

They go on to say,

"Not only was there no support for a constitutional right until shortly before Roe, abortion had long been a crime in every single state."

There's a clear moral consensus in the opposite direction. So, if under a view of the constitution that we interpreted according to the original intent, as opposed to it being this living, breathing document that's malleable really to whatever we want to do with it, under that assumption, then there's no basis for saying that this is a right that the court needed to finally formalize and recognize. That's really what the court should be doing. If they recognize rights that are incipient in the constitution, but just haven't been recognized so far. The court's made some egregious errors in the past.

Thank goodness the court decision that allowed the internment of Japanese during world war II was overturned. Thank goodness that Separate But Equal in Plessy V. Ferguson was overturned. The court's not infallible. I think that Roe V. Wade is one of those decisions that is best overturned and the matters left to the states for rational debate.

They say,

"The inescapable conclusion is that a right to abortion is not deeply rooted in the nation's history and traditions."

I'd say Alito got kind of fired up at this point.

I think what he recognized is that what the court did in '73 was not to recognize the consensus that was already there, but it created one.

What it shows is the educational power of Supreme Court decisions, that even if it doesn't change the law in any state, the law will provide this educational impetus for people to rethink whether abortion rights are really the order of the day. I think that's huge value. I mean, even if nothing changes on the ground, that's significant value educationally for the lives of the average person and how they think about abortion.

The third question that they consider is this one. It says,

"The right to abortion, is it supported by other precedents?"

He says, for example, here's one of the first one he cites. His response to this is simple but profound. He quotes Casey, who elaborates on,

"At the heart of liberty is the right to define one's own concept of existence, of meaning of the universe and of the mystery of human life."

Here's his response. This is Alito again, the majority.

"While individuals are certainly free to think and to say what they wish about existence," meaning in the universe, "They are not always free to act in accordance with those thoughts."

he goes on to say,

"Those criteria at a high level of generality could license, fundamental rights to use illicit drugs, prostitution, and the like."

Let’s go back to the issue of viability as it relates to protection. Reading from the opinon again.

"Roe did not provide any cogent justification for the lines it drew. For example, does the state have no authority to regulate first trimester abortions for the purpose of protecting a woman's health if, as Roe held, a state's interest in protecting prenatal life is compelling after viability, why isn't that interest compelling before viability?"

....it goes on to say

"Some have argued that a fetus should not be entitled to legal protection until it requires the characteristics they regard as defining what it means to be a person."

Among the characteristics that been offered, sentience, self-awareness, ability to reason, et cetera," but here's what it says, then I want you to jump in. It says,....

"By this logic, it would be an open question, whether even born individuals, including young children, those afflicted with certain development or medical conditions merit protections as persons."

This sounds like the type of apologetics argument you we have been making for decades.

People who are favoring infanticide, they are actually making exactly the same point, that birth is just a change of location. There's no difference and there's no point between conception and birth that makes any metaphysical or fundamental difference in what kind of a thing the unborn child actually is. So, there's actually no good reason on Roe's reasoning why infanticide shouldn't also be allowed. That's why early on, Peter Singer and others who made the case for infanticide, and did so on the basis of Roe, were absolutely in line with that position. There's nothing to stop that. Here's the other thing it doesn't stop. It doesn't stop persons who are under anesthesia from being persons, because they don't lack any of those qualities when they're under general anesthesia. You could even make teh argument that some people who are even in a deep sleep, they don't have those capacities.

What we have to recognize is that even though those capacities for somebody on anesthesia are just lost temporarily, the unborn child also doesn't have them temporarily, but they will. See, from the point of conception, the unborn child has all the capacities he or she needs to be a fully human person. They are a fully human person, but with lots of unactualized capacities. But from the very start, they have all those capacities resonant, and they mature at stages that are appropriate to the way an unborn child matures. That's why I don't like it when we use the terms develops or becomes. They mature into what they already are.

For these reasons, they're basically saying,

"We strongly affirm that it should be overturned."

Here's their final conclusion. What they do,

"Our decision returns the issue of abortion to those legislative bodies and allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators' voting and running for office."

Does this ruling undermine the legitmacy of the court?

Well, it won't undermine the legitimacy of the court any more than reversing Plessy V. Ferguson did, or reversing some of the other egregious decisions that were made in the past. I think with those decisions, we look at that and say, "Hey, the court made a mistake. Times changed. We learned more," and they corrected a mistake, and God bless him for that. We should praise the court. I think what's more of a threat to the court is actually that the draft that you read from was leaked.

To me, this actually seems like a ruling that a pro-choicer should be in favor of, because what this is doing is not mandating one view for all 50 states, which is authoritarianism, which is what was done in Roe versus Wade. This is actually giving choice to the states. A woman can still get an abortion and will be able to in the long distant future in the United States. It seems to me that if somebody is actually pro-choice, they should look at this and say, "Good." Now, if they're pro-choice not by the label, but truly pro-choice, this should be a positive ruling that says, "Good. Now we can make a case, choice for, choice against, and it's moved to an issue of the states."

May the best arguments win.