Hopes are running high among pro-lifers these days. With Justice Anthony Kennedy’s departure from the Supreme Court, many of us can’t resist a peek at the political crystal ball. Dare we entertain the thought of finally overturning Roe v. Wade?
Possibly. At one point, it looked like the current nominee to replace Kennedy, Brett Kavanaugh, would cruise to confirmation. But recent allegations of sexual assault have muddied his path. In any event, nobody knows for sure whether Kavanaugh (or anyone else on the president’s short list) would cast a tie-breaking vote against Roe. Or whether the Court’s other conservative members would play their scripted roles. Or whether a challenge to the Court’s abortion jurisprudence would even reach the current cohort of justices.
In the meantime, as we game out different scenarios, a word of caution—one that might, at first glance, seem outlandish. Pro-life Christians should take greater pains to separate opposition to abortion from opposition to Roe v. Wade.
Wait, that can’t be right. Isn’t Roe responsible for backstopping America’s heinous regime of abortion-on-demand? Quite so. There’s a reason the annual March for Life occurs each January on Roe’s anniversary—and that it culminates with a peaceful demonstration outside the Supreme Court building. There’s a reason the marchers carry signs and hear speeches raging against the Court’s infamous handiwork.
Yet for all our focus on scrapping Roe, a salient fact remains: The wrongness of this decision has precisely nothing to do with the wrongness of abortion. Taking the life of an unborn child is a sin against God and man. Roe, by contrast, is an offense against America’s democratic order, a renegade ruling utterly untethered from the text, logic, structure, or history of the Constitution it purports to enforce. Supporters and opponents of abortion ought to find it equally indefensible.
Justice Harry Blackmun’s majority opinion discovered a phantom “right to privacy” lurking in the darkest recesses of the 14th Amendment’s Due Process clause—a zone of autonomy said to encompass a woman’s right to terminate her pregnancy. Even liberal legal scholars who cheer the outcome scratch their heads at the Court’s reasoning. Take Yale and Harvard Law School’s John Hart Ely, who opined that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” Or Harvard’s Laurence Tribe, who remarked, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Most pro-life Christians, like most Americans, aren’t constitutional experts. They protest Roe because Roe means abortion, and they figure that whatever is on the side of abortion ought to be opposed, pure and simple. They react to industrial-grade evil not with pocket constitutions and law-journal citations, but with moral clarity and righteous anger. There’s something refreshingly healthy in that impulse.
But there’s also a cost to the integrity of our political witness. Whenever we frame the case against Roe as a moral struggle against abortion, we treat the judiciary as a vehicle for promoting our agenda, rather than a neutral tool of democratic governance. Even loose talk about building a “pro-life majority” on the Court or amassing “five votes against abortion” carries a strong whiff of results mattering more than underlying principles. Don’t we condemn pro-choice absolutists for this very trait?
In fairness, every popular movement relies on crude shorthands, and often enough “pro-life judge” simply signifies the deeper “originalism” that Kavanaugh and like-minded thinkers espouse. Repeat the shorthands enough, though, and before long they become the dominant rallying cries. Instead of advancing a principled critique of judicial malpractice, we end up profiling as one more tribe trying to outgun the other tribes.
Disentangling the legal case against Roe from the moral case against abortion doesn’t mean mistaking the Constitution for sacred Scripture. It doesn’t mean elevating the will of its flawed human framers above God’s will for protecting unborn life. And it doesn’t mean baptizing an originalist approach to Constitutional interpretation as more “Christian” than its rivals. It simply means that our Constitutional order—whatever its wisdom, whatever its folly—is the order we happen to live under at this moment in history. According to Scripture, we owe it some measure of allegiance (Rom. 13:1–5; 1 Pet. 2:13–14).
Under that order, legislators make laws that reflect their moral convictions, and judges determine whether those laws comport with the Constitution (which itself can be changed with enough popular support). Roe proves that judges sometimes violate their end of the bargain, inserting personal morality where legal reasoning belongs. We risk bringing discredit to our cause when we appear to champion judges who would do the same thing, only with the correct morality.
No matter how the Kavanaugh nomination plays out, let’s keep up the fight against Roe. But only for the right reasons.
Matt Reynolds is books editor for Christianity Today.
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