Roe v. Wade v. Congress v. God

Editor’s Note: As noted below, this article was written after the draft of the Supreme Court of the United States decision on the Dobbs v. Jackson Women’s Health Organization case was leaked to the press but before the official announcement of the Court’s ruling, which was made public after our July 2022 issue had gone to press. However, the commentary made here remains just as relevant.

In the annals of court decisions, it is unlikely that the phrase Dobbs v. Jackson Women’s Health Organization will ever carry the emotional punch of Roe v. Wade. Yet, when in May of this year the Supreme Court of the United States (SCOTUS) was rocked by the unauthorized leak of a preliminary draft decision of that case—a case that could potentially curtail the availability of abortion across the U.S.—many observed that the leak might be as significant as the decision itself.

Before SCOTUS issued its landmark ruling on Roe v. Wade in January 1973, abortion was illegal in 30 of the 50 U.S. states. It was legal upon request in just four—Alaska, Hawaii, New York, and Washington. In other states, abortion was allowed if a pregnancy jeopardized a woman’s life—with a definition of “jeopardy” often so broad and subjective that an affluent abortion-seeker could usually find a willing doctor.

Roe v. Wade decriminalized abortion in all 50 states. Yet, almost as soon as SCOTUS issued its ruling, observers began to wonder whether the decision would stand the test of time. Justice Harry Blackmun, writing the majority opinion, admitted as much when he wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (U.S. Reports: Roe v. Wade, p. 113). Blackmun acknowledged that his opinion was time-bound—reached in part because of a lack of scientific consensus as to when a human life begins.

So, it is no surprise that, nearly 50 years later—after five decades of medical advancements that have given us far greater understanding of life in the womb—Roe v. Wade is facing increased scrutiny.

On one hand, advances in surgical technique have made abortion far safer than ever before—for the mother. Yet we should put this in perspective; key abortion-rights advocates in the years before Roe v. Wade have long since admitted that their figures regarding supposed “back-alley” abortions were largely fictitious. Former abortionist Dr. Bernard Nathanson, in his autobiography The Hand of God, writes, “There were perhaps three hundred or so deaths from criminal abortions annually in the United States in the sixties, but NARAL [the National Abortion Rights Action League] in its press releases claimed to have data that supported a figure of five thousand” (pp. 89–90). These long-discredited lies still inflame many who fear the return of less permissive abortion laws.

Congress, SCOTUS, and Partisanship

But even if Roe v. Wade cannot survive the scrutiny of modern medical science, why have abortion supporters been unable to muster the political support to legislate legal abortion on some other premise? Consider that the U.S. Congress has not passed legislation that would legalize abortion and remove the issue from the purview of the courts. Why? Is it that, despite Roe v. Wade, individual legislators know that the abortion issue is still a super-sensitive matter that can win or lose an election? Is it that abortion is more important to some legislators as a “hot-button” issue for fundraising than as a settled matter affecting the lives of their constituents?

We are used to thinking of Congress as a partisan political body—that’s what it is. But the Supreme Court, since its establishment in 1789 as part of the U.S. federal government’s three branches, has considered itself above and apart from its nation’s partisan politics. As Chief Justice John Roberts said when speaking to law students at New England Law in February 2016, “We don’t work as Democrats or Republicans” (ABAJournal.com, February 5, 2016). Justice Neil Gorsuch echoed that sentiment at his March 2017 confirmation hearing: “I do not see Republican judges, and I do not see Democrat judges. I see judges.” Indeed, in the last 15 years, the most frequent SCOTUS majority has been 9-0. But it is the narrow decisions—the 5–4 bare majorities—that attract the most attention, even though these have in recent years accounted for fewer than 30 percent of cases, and only 5 percent as recently as 2015.

But is the Supreme Court truly non-partisan, from the Justices to the law clerks to the staff? It was an insider who leaked Justice Alito’s draft opinion to the website Politico.com, which bills itself as “the global authority on the intersection of politics, policy, and power.” Before this leak, journalists occasionally obtained pre-release copies of SCOTUS decisions, but observers cannot recall any previous leak of an unofficial draft.

Issues of Trust

Court-watchers quickly offered their speculations as to why the Dobbs v. Jackson Women’s Health Organization draft was leaked. Was it to rally opposition? To prod Congress into passing legislation to protect legal abortion? Was it an “insider” attempt to convince a moderate Justice to leave Roe v. Wade intact? Whatever the motive, it was a devastating blow to the Court’s internal sense of trust, its image, and its sense of orderly function.

“I do think that what happened at the court is tremendously bad,” said Justice Clarence Thomas. “I wonder how long we’re going to have these institutions at the rate we’re undermining them.” Chief Justice Roberts quickly announced an internal investigation to find the leaker, but the damage appears to have been done, and done deeply. Gone are the days when, as Thomas put it, “we actually trusted each other. We may have been a dysfunctional family, but we were a family.”

In addition to raising issues of trust within the Supreme Court chambers, the leak has been used to attack the integrity of several Justices due to their prior statements about Roe v. Wade. In the leaked draft, Justice Alito writes that “Roe was egregiously wrong from the start.” Abortion advocates were quick to point out that Alito took a much milder tone during his confirmation hearing, when he acknowledged that although Roe v. Wade was open to further litigation, it was nevertheless “an important precedent.” Justice Brett Kavanaugh at his confirmation hearing called Roe v. Wade “settled as a precedent” and one Senator—Susan Collins (R-ME)—says Justice Kavanaugh called the decision “settled law” in a private conversation. With such accusations, supporters of Roe v. Wade hope to paint the Justices as deceptive or untrustworthy in their previous, carefully worded statements to Congress.

And the leak has intensified public sentiments about the overturn of Roe v. Wade. The prospect of seeing abortion decided by individual states, as it was before 1973, has stirred fervent emotions. The Axios news digest reported that federal agencies “are investigating social-media threats to burn down or storm the Supreme Court building and murder Justices and their clerks, as well as attacks targeting places of worship and abortion clinics” (“DHS preparing for violence following abortion ruling,” May 18, 2022). Abortion rights activists have already held protests in front of Justices’ homes, disrupting their neighborhoods.

Indeed, if the final SCOTUS opinion is anything like the leaked draft, we can expect not a peaceful resolution, but rather an intensified series of local battles. Sixteen states have passed laws that would preserve legal abortion, while 22 states’ laws would become more restrictive without Roe v. Wade. And we should not expect to see much reasoned debate. Some will say that politics is often far less about consistency than about finding an ideology that suits one’s personal desires. Consider the popular refrain, “My body, my choice!” How many who are holding tight to that phrase in the midst of the abortion controversy were just months ago insisting that vaccine mandates be imposed on every American body?

Ancient Practice v. Biblical Truth

Justice Blackmun recognized that abortion was even controversial in antiquity, and that the ancient Hippocratic Oath, first taken by pagan Greek physicians at least three centuries before Christ, included the promise, “I will not give to a woman a pessary to produce abortion.” Yet, writing the Roe v. Wade majority opinion, Blackmun also acknowledged that abortion has been part of human society for thousands of years.

We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, and that “it was resorted to without scruple.”… Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring.

But what is the biblical perspective on abortion? Quite simply, an abortion kills a human being to whom God gave life. God knew Jeremiah in his mother’s womb (Jeremiah 1:5). God hates hands that shed innocent blood (Proverbs 6:17).

It is true that, for many centuries, even many who considered themselves Christians commonly assumed that what we call “life” began with a baby’s first breath outside of the womb. But now that we know so much more about life inside the womb, we need to be very careful that we do not let ourselves be caught up in futile and specious arguments. Some try to twist Scripture to say that although an unborn child is alive, its murder is less of an offense than murdering a born human being, and that this difference somehow makes the murder acceptable. But if we follow that line of reasoning, we will quickly find ourselves condoning infanticide and euthanasia. Would we dare say that an infant or toddler, not yet at the age of reason, or an adult suffering from severe Alzheimer’s is somehow less than a full human being? Sadly, increasing numbers of people, even physicians, are now saying “yes” to that notion, as well as to the idea that euthanasia and “assisted suicide” of the elderly are not just morally acceptable but even socially desirable.

Choose Life

As this article goes to press, we know neither the identity of the leaker nor the Court’s final decision on Dobbs v. Jackson Women’s Health Organization. Roe v. Wade may or may not remain intact, and SCOTUS may or may not be able to restore some measure of security and trust within its chambers and with the American people. Thankfully, Christians can decide to uphold the biblical standard no matter what else transpires. The earliest Christians paid taxes as subjects or citizens of a Roman Empire where unwanted newborn infants were commonly left in the cold to die of exposure—but they would not take part in such conduct themselves. Regardless of human law or custom, Christians have a divine obligation before God to show by their example how to live in a way that is truly pro-life, not just concerning a child’s birth, but rearing children to love and serve their Lord and Savior, the giver of life.

In a time when institutions are losing people’s trust, we at Tomorrow’s World continue to strive to speak truth to our readers. Our Editor in Chief, Gerald E. Weston, has been plain about the facts concerning abortion—from “Abortion: The Real Story,” his 2018 two-part series in this magazine, to his powerful telecast “Tiny Fingers and Toes!” Additionally, if you haven’t already done so, please read Mr. Wallace G. Smith’s “Seven Lies About Abortion” in our January 2022 issue. And know that we at Tomorrow’s World will continue to tell you the truth about our culture’s shocking willingness to murder the most innocent among us—and what this means for our future.