What does the law say about abortion? How does David Opderbeck, a law professor and author of a book on theology and the law, say about the law about abortion? His book is called Law and Theology.

I can’t think of many pastors who don’t need a book like this so let me put it this way: every pastor needs this book on the shelf, but before it gets on the shelf, that pastor needs to read it to comprehend how law works. It’s too easy to pontificate behind pulpits about law when the first principles about law are not in the grasp.

What about abortion and the law?

In 1965, in the case called Griswold v. Connecticut, a law was struck down that banned contraceptives. Here’s how Opderbeck summsarizes the issues:

The reason is chat the Connecticut statute applied equally to everyone: neither men nor women could lawfully use contraceptives. But in addition to the equal protection clause, the Fourteenth Amendment also contains a “due process” clause, which prohibits a state from “depriving any person of life, liberty, or property, without due process of law.” Writing for the court, Justice Douglas stated that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance and that “various guarantees create zones of privacy.” Justice Douglas thought these zones of privacy were particularly salient concerning intimate family relationships.

The slogans “Hands off my body” and “It’s my body” come from this ruling about personal privacy.

Image: Cover Photo

Of course, eight years later came Roe v. Wade (1973). Here is Opderbeck again: “Justice Blackmun’s majority opinion in Roe held that the right of privacy recognized in Griswold was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. However, the court held that the state may have an interest in “safeguarding health, in maintaining medical standards, and in protecting potential life.” The balance of these interests, the majority held, varied depending on fetal “viability,’ which the court presumed began at about the third trimester of pregnancy.”

This set off both Roman Catholics and conservative evangelicals into a kind of moral activism. Both legal issues – when does life begin? – as well as appointment of Supreme Court Justices became part of the agenda of opposition to Roe v. Wade.

David Opderbeck then points to Sandra Day O’Connor’s decision not to vote with the conservatives in 1992’s Planned Parenthood of Southeastern Pa. v. Casey. Scalia’s words were these:

Scalia suggested that the “best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.

In 2007 Gonzales v. Carhart’s case dealt with partial birth abortions and ruled that late-term abortions can find other means (other than “intact dilation and evacuation”) to protect a woman’s health. Justice Ginsburg wrote against the conservatives.

In 2016, in Whole Woman’s Health v. Hellerstedt, a ruling came down that prevented Texas from placing obstacles to a woman’s right to abortion, and the obstacles here were about providing a surgical center and employ only MDs who were hospital-authorized.

What is at issue here is the Supreme Court’s flexibility – from one court to another – in deciding due process and in making judgments about legal matters previously clear in American history and jurisprudence. Opderbeck knows that some of this is “doctrinally shaky” (198). There are “originalists” and there are those who think the law is “living” and in need of adjustments to modern conditions.

But he offers this wise summary statement about Christians and abortion:

Reasonable people, including reasonable and faithful Christians, can disagree on whether or ar what point a very early stage pregnancy involves a “person” or ar least a “potential person.” Reasonable people, including reasonable and faithful Christians, also ought to hear the concerns of feminist scholars and activists and other women about the historically enormously disproportionate burdens women have borne in pregnancy and child rearing. But it remains the case that human flourishing is a central concern for any serious Christian (or Jewish or Muslim) social ethic and that pro-life Christians reasonably believe most abortions involve the grave moral consequence of terminating innocent human life.

The law is not the Christian mission; the kingdom of God is. But this does not mean Christian activism can’t be energized to bring positive law into closer alignment with Christian virtues and ethics.

500,000 new abortions each year in the USA. When, Opderbeck, asks probingly, does life begin? He contends there are good legal, rational, and Christian grounds to ban even early term elective abortions. What the law permits is not, he reminds us, what the law imposes. This places the decision, not so much on law as it does on the one deciding on abortion.