The Supreme Court Didn’t Rule Against Abortion Today, and I Thank God for That
Today’s Supreme Court decision today was not an abortion ruling, and I thank God for that. It also didn’t do what the AP said, and “end nearly 50 years of constitutional protection for abortion.” That’s good, too.
I’d better explain quickly, before you think The Stream has gone leftist. Or mad. We haven’t, I assure you. Abortion is wrong, and by recognizing the States’ rights to make abortion illegal in different ways, this decision will reduce the commission of that wrong. That is a very good thing, and I thank God for that.
That by itself, however, doesn’t mean the majority’s written opinion is principally about abortion. You can check it out for yourself; the decision is really quite readable. You’ll find its reasoning had nothing to do with whether abortion is right or wrong, but something else instead — something very good and very important.
Why This Wasn’t an Anti-Abortion Decision
The occasion that got this decision rolling was certainly abortion, and the outcome is good. The decision’s reasoning was focused entirely elsewhere, though: how courts should and shouldn’t operate in America.
The Supreme Court today decided that the Burger Court in 1973 decided Roe wrongly. But it wasn’t because abortion is wrong. Instead it was (don’t let the simplicity fool you now!) because the Burger Court decided Roe wrongly. That is, made its decision the wrong way, based on wrong legal principles, and thus it came to a wrong conclusion. Its wrong conclusion (per today’s decision) wasn’t, “Abortion is right.” Its wrong conclusion was, “Abortion is a right.”
In line with that, today’s decision doesn’t say abortion is wrong; it says calling abortion a right is wrong. This is why I say it wasn’t an anti-abortion decision. If it was anti-anything, it was an anti-courts-declaring-rights-wrongly decision.
I’ll give you a short peek inside the opinion, though again, I encourage you to read it for yourself.
Which ‘Rights’ are Right?
Citing precedent, this Court listed two sources that inform us which rights a government should protect. First, there are “those rights guaranteed by the first eight Amendments to the Constitution.”
Abortion obviously isn’t in there, but the Bill of Rights was never meant to be an exhaustive list. The Court knows this, and recognizes there are also “those rights deemed fundamental that are not mentioned anywhere in the Constitution.”
“Deemed fundamental” — that’s an interesting phrase. Someone has to do that “deeming fundamental,” and it’s easy to see that turning quickly into a battle of private opinions. Not so, however, for as this opinion explains, (again, citing precedent), we have a far more objective way to recognize such rights:
The question is whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.” … The term “liberty” alone provides little guidance. Thus, historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause.
The Court Got it Wrong in Roe
The opinion goes on to show that historical inquiries yield a conclusion completely opposite to Roe:
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stage.
There’s more to it, including a thorough review of counter-arguments, but that’s the core of it. It’s not about whether abortion is right or wrong, it’s about whether the Court should declare it a right.
The same goes for Justice Clarence Thomas’s solo concurring opinion. He got blasted straight out of the get for suggesting the Court should review its support for contraception and gay marriage. That’s a misreading of what he said. He actually suggested the Court review whether it was within its proper bounds in declaring these things to be rights.
Why This Didn’t ‘End Almost 50 Years of Constitutional Protection for Abortion’
So the AP was wrong: Today’s decision didn’t end decades of constitutional protection for abortion. There never was any such thing. Granted, an earlier court said there was, but that Court was wrong. So said the Court today, and they supported it with extended reasoning.
I’ll illustrate with an analogy. Suppose I told you that on February 13, 2022, the Los Angeles Rams defeated the Cincinnati Bengals by a score of 23 to 20, thus ending the Bengals’ fifty-year Super Bowl winning streak. You’d call me nuts. It doesn’t matter that the first half of that statement is true. The Rams couldn’t have ended the Bengals winning streak because it never existed.
What ended today wasn’t nearly 50 years of a constitutional right to abortion, but nearly 50 years’ ruling opinion that a constitutional right to abortion exists. Now we begin an unknown number of years during which the current Court’s decision will be the ruling opinion. And I think they make an awfully good case that their opinion is more than that: It’s the truth.
Why I Thank God That This Wasn’t a Decision About Abortion
So today’s decision wasn’t about abortion, but about how the courts should determine what rights Americans hold. I’ll quote again from the decision:
Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”
This Court says no court should take it upon itself for doing what legislatures are supposed to do, and even takes the Burger Court to task for “conducting the sort of fact-finding that might be undertaken by a legislative committee.” That wasn’t a complaint about fact-finding, but about the Court’s thinking it should be doing someone else’s job.
Legislatures make laws. Courts interpret them. That, along the Executive Branch’s defined sphere, describes and defines our country’s separation of powers. Today the Supreme Court affirmed its commitment to staying inside its assigned lanes.
A Step Back from Judicial Tyranny
And that is good thing, a very good thing. It’s our country’s best protection against tyranny. If courts can make law, as they did in Roe, and again most recently and infamously in Obergefell v. Hodges, the result is laws made by courts. Too obvious? The point is this: We didn’t elect these judges, and we sure never said the country’s entire family-law system was up to five people to decide. When small groups of unelected and un-fireable public officials make un-challengeable laws all on their own, that’s called despotism.
If today’s decision had rendered abortion illegal, that would have been despotic, too. It didn’t do that, though. It rendered abortion a matter for states’ legislatures to decide. This wasn’t just a decision in favor of life, it was a blow against U.S. courts’ drift toward independent law-making — toward tyranny.
I thank God for what today’s decision did for unborn lives. I thank Him for what it did for born ones, too: It restored some of America’s proper constitutional balance.
Tom Gilson (@TomGilsonAuthor) is a senior editor with The Stream and the author or editor of six books, including the recently released Too Good To Be False: How Jesus’ Incomparable Character Reveals His Reality.