The Current Supreme Court Controversy

Supreme Court

The Current Supreme Court Controversy

Unless you have been asleep for the past several days, you will know that the Supreme Court of these United States (SCOTUS) is poised to overturn the landmark Roe v. Wade, 410 U.S. 113, decision that legalized abortion in 1973.

Before we fall prey to the idea that the SCOTUS decisions are always right or have never been easily or frequently reversed, we should understand the facts. How many Supreme Court cases have been reversed in the history of the Supreme Court? In its 232-year history, it has done so 233 times. That would average out to one a year over the lifetime of the court. That might sound high, but consider this: Between 1946 and 2020, there were 9,095 decisions made by the high court. In that time, data from the US Government Publishing Office show 161 overturned decisions as of Dec 4, 2021.

The majority opinion of the Roe v. Wade decision was that the Constitution of the United States of America provides a “right to privacy under the Constitution that cannot restrict a person’s ability to choose whether to have an abortion.”

It is clear from our own history that the decisions made by fallible men and women are often wrong. When Roe v. Wade was decided, the juris prudence with regard to the justification of that ruling was hotly debated. Many legal scholars opined that Roe v. Wade was built on a shaky foundation. The missteps that lead to this half a century long controversy began with the Justices announcing a broad new constitutional right to abortion that is not found in the words of the Constitution.

Justice Blackmum wrote the majority opinion for the court included the medical history of abortion, citing the views of the Persians, Greeks and Romans, and quoted two versions of the Hippocratic oath and early English authors dating back to the 13th century. He did not, however, quote a provision in the Constitution that protected abortion rights. That omission is cited in the draft opinion being circulated by conservative justices as they prepare to overturn Roe v. Wade. (Savage, 2022)

Justice Samuel A. Alito Jr. wrote in a draft published on Monday by Politico. He added that Roe’s reasoning was exceptionally weak.” This echoes many of those who originally objected to original Roe v. Wade decision. Weak or not, this battle has been brewing for a very long time.

Like it or not, we do not live in a theocracy. This is not ancient Israel. We live in a constitutional Republic where the rights of the minorities are protected from the possible tyranny of the majority. This is not the perfect form of human government, but I honestly believe it is the best we have at this time. Thankfully, the founding fathers derived our inalienable rights from the Creator, not the President or any other human agency.

Let me make a comparison to another SCOTUS decision that was demonstrably wrong-headed. It was the Dredd Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). This was a landmark decision of the United States Supreme Court in which the Court held that the United States Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them. Dredd Scott was a slave that sued in court for his freedom. Sadly, the abovementioned decision did not go in his favor.

This egregious example of flawed jurisprudence should give us all pause. Prior to the bloody Civil War, African slaves were considered non-citizens, not worthy of the protections afforded to others under the Constitution of the United States of America to legitimate citizens. The majority opinion ignored facts in evidence that the two dissenters noted.

Justices Benjamin Robbins Curtis and John McLean were the only two dissenters from the Court's decision, and both filed dissenting opinions. Curtis's 67-page dissent argued that Taney's assertion that black people could not possess federal U.S. citizenship was historically and legally baseless. Curtis pointed out that at the time of the Constitution's adoption in 1789, black men could vote in five of the 13 states. Legally, that made them citizens of both their individual states and the United States federally. Curtis cited many state statutes and state court decisions supporting his position. His dissent was "extremely persuasive", and it prompted Taney to add 18 additional pages to his opinion in an attempt to rebut Curtis's arguments. (Nowak & Rotunda, 2012)

Why did I go back to the infamous Dredd Scott decision when discussing the impending overturning of Roe V. Wade? For most of us who lived through the 1973 decision, we remember that one of the famous claims in favor of abortion was that a fetus was not a viable human being. They noted that the viability of babies surviving outside the womb had certain medical constraints. At that time, the ability of medical technology to offer premature babies was limited. Most medical personnel understood that this age of viability outside the womb was going to increase, and indeed it has.

For people of faith, the argument was never about the viability of the fetus outside the womb. We understood that life begins a conception. Many verses in the Scriptures validate the fact that life begins at conception. The Psalmist of Israel said this:

13 For thou hast possessed my reins: thou hast covered me in my mother's womb.

14 I will praise thee; for I am fearfully and wonderfully made: marvelous are thy works; and that my soul knows right well, Psalm 139: 13-14  

When the SCOTUS declared African slaves less than human, not worthy of the protections of citizenship after being kidnapped and sold into slavery, that decision was completely wrong. I cannot help but make the same observation concerning Roe v. Wade. When we ignore the life within the womb for the convenience of adults, we were making a similar error in judgment with regard to life in general.

We know that babies in the womb are human beings. If someone murders a pregnant woman and her baby dies as a result, the perpetrator of that crime is charged with double homicide.

There has always been one race, the human race. We are all one blood, Acts 17:26, according to Scripture. If the Dredd Scott justices would have consulted their Bibles, they would have known that the Transatlantic Slave trade that was built on ‘men stealing’ was an evil practice punishable by death in the Bible, Ex.21:16a.

Sadly, there are serious concerns when unintended pregnancies arise. We have to do a better job in dealing with the consequences of unwanted pregnancies. There are many organizations that are standing in the gap where these matters are concerned, but there is always more that can be done.

At Creation Studies Institute, we want to educate the public to the biblical worldview. We want to promote the gospel and see lives changed, hope replace despair and love conquer hate. We are the one’s who should be able see both sides of this issue, and respond with compassion and understanding for all concerned. As always, we covet your prayerful support as we endeavor to reach the world with the truth about Creation and the gospel of our Creator who became our Savior, Jesus Christ.

Submitted by Pastor Steven Rowitt, Ph.D.

References

Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, MN: West Thomson/Reuters.

Savage, David G. (2022). Where Roe went wrong: A sweeping new abortion right built on shaky legal foundation. Los Angeles Times, May 3, 2022 8:58 AM PT.