Six Republican justices now sit on the Supreme Court, including three appointed by recent president Donald J. Trump. Their supporters widely expect these six to lead the way in overturning the 1973 ruling known as Roe v. Wade that legalized abortion in the United States. But the Court faces some real problems if it decides to go in that direction, beyond the 2-1 support for abortion rights in the American voting population, particularly among younger adults.
First, they run the risk of undermining their own credibility as arbiters of constitutional law. For fifty years, Republicans joined with religious conservatives to make overturning Roe v Wade the capstone of victory in the Culture War. Their effort was primarily the election of Presidents who would appoint ant-abortion justices to the Supreme Court.
If this strategy works, it will demonstrate that the law of the land is not actually rooted either in the constitution or in legal traditions but squarely in political power: those who win the most votes determine what the law is. Historically, that has been the role of legislatures and Congress and not the Court; the Court was designed to be above the ebb and flow of popular opinion. But if the Court succumbs to this wave of political power, it will signal to everybody on all sides of the political spectrum that the way to change the law in the United States is to appoint justices to the Court. And all it takes is five votes.
Second, a victory in the Supreme Court by this minority of Americans represented by a majority of Justices will embolden the Political and Religious Right in their campaign to dismantle many of the elements of modern government operations.
It is not just abortion that those on the Right resist: it is public health initiatives, as we are seeing in the current pandemic; it is the rights and opportunities of minorities of all kinds including immigrants, refugees, descendants of slaves, and the entire LGBTQ community. The Right Wing in American politics in concert with the Religious Right has resisted the expanded freedoms granted all of these people. They fought like hell against racial integration and reconciliation, even to this very day; and they resent more than they can say the rights granted gays and lesbians, to say nothing of transgendered persons.
But the resistance to modern life in America goes all the way back to Social Security, Medicare, Medicaid, and of course, Obamacare! It includes much of the regulatory state that protects us from products, processes, and powers that deem the bottom line (as in money) as the only norm of success. The rights and privileges granted to women as to whether or not to carry a fetus to term is not, by a long shot, the most far-reaching element of their campaign to roll back our progress and replace it with a social system controlled by corporations, churches, and those with the most guns.
Finally (and in a quirky contradiction to what they claim as fundamental), overturning Roe v. Wade would create a sharp challenge to the principle of personal privacy upon which the right to an abortion is founded.
How will these six right-wing Justices (who claimed recently that they are not “political hacks”) reframe the right to privacy after they have successfully asserted that such a right does not exist because it is not expressly articulated in the Constitution? Is there a right to privacy at all? In what does it consist? Is that right to privacy a wall of protection against government over-reach? And if so, in what circumstances? And how can government power to control what a woman does with her pregnancy be squared with any version of a right to privacy? If government power can reach into a woman’s womb, is there any place where it is off limits?
All that being said, let me be clear. I do not support abortion, and I don’t think Christians should abort our babies, except in the most extenuating circumstances. But I believe strongly that this should be a spiritual decision and not a legal mandate.
In this regard, I place it in the same category as drugs (including cigarettes) and guns: Christians, in my judgment, should neither use prohibited drugs or smoke (or chew) tobacco; but I do not support a law against either. I have written often against the private ownership of guns. Christians should respond to the awful carnage of gun violence in our country with the glad surrender of our guns; we need to lay them on the altar of Jesus who gave his blessing to peacemakers. But I do not support a law prohibiting citizens from owning guns.
In the same way, I believe the Christian community needs to continue our work to support women who are pregnant, to encourage them to give birth and raise their children or give them to adoptive parents, and to support parents and their children with all the public and private resources of our rich and generous country.
Tell me what you think!
(December 2021)
