The Supreme Court's Pending Abortion Ruling

KEVIN HARRIS: Bill, the last several years you’ve watched the Supreme Court with interest. We’ve done some podcasts on it. I suspect that this possible overturning of Roe v. Wade may be of utmost importance to you.

DR. CRAIG: Yes. I am just holding my breath, hoping and praying that these justices will have the courage to do the right thing. I can hardly believe it that we have come to this point where this terrible decision that has resulted in the deaths of so many unborn babies may finally come to an end.

KEVIN HARRIS: This is a New York Times article that just came out.^[1] Quoting now, it says,

All six Republican appointees on the Supreme Court have long signaled that they have qualms with the Roe v. Wade decision. What’s been less clear is whether at least five of them — enough to make a majority — would be willing to overturn Roe, which would require scrapping decades of legal precedents.

Doing so has downsides for the court. It would then look more like just another partisan branch of government that changes policy when its members change, rather than a nonpartisan interpreter of legal principles. At least a few justices are already worried about the court’s image.

Haven't many of us been concerned that the Court legislates rather than interprets the Constitution and legal principles?

DR. CRAIG: Absolutely. The Court's reputation has long been tarnished, and those who are making noises about the repercussions are those on the left who have been legislating from the bench rather than strictly interpreting the Constitution. I think it's high time now to return to a constitutionally accurate decision on this question.

KEVIN HARRIS: The article continues,

The questions that the justices ask during arguments are often a preview of how they will rule, Adam Liptak, who covers the court for The Times, points out. Yesterday, all six conservative justices asked questions suggesting support for Mississippi’s law. It outlaws abortion after 15 weeks, a clear violation of Roe and subsequent court rulings protecting abortion access early in pregnancy.

In yesterday’s arguments, all five of those justices — Barrett, Kavanaugh, Neil Gorsuch, Samuel Alito and Clarence Thomas — seemed interested in a full repeal of Roe. Alito suggested that the ruling was “egregiously wrong.”

Wow! Do you have any thoughts of what it would mean for America if Roe v. Wade were overturned?

DR. CRAIG: The justices’ questions were very interesting, weren't they? Very telling. What they were asking about was: Doesn't the Court have precedent for overturning Court decisions that gave prior precedence? So if someone says you can't overturn Roe v. Wade because of judicial precedence, these justices have said, “Wait a minute. The Court has overturned itself in the past.” So we have precedent for going against precedence which is very interesting, I think. What this would mean, I think, is not that abortion would be outlawed. Rather it would return the issue to the states to decide. And some states would clearly outlaw abortion or place severe restrictions on it, but in other states like New York and California you can expect that the status quo will continue into the indefinite future.

KEVIN HARRIS: The article continues,

Still, the outcome remains uncertain. Justices often try to influence one another during behind-the-scenes negotiations over a case. Roberts or the three liberal justices may yet convince Barrett and Kavanaugh that the political costs of full repeal are too large. The court is likely to announce its decision by early July.

Either way, the long political battle over abortion seems to be on the verge of a new era. In much of the country, abortions may soon be less common than they have been for nearly a half-century.

So it appears the article is saying that this won't end Roe v. Wade, but it will curtail it and reduce abortions. Could this outcome merely be another step in the full elimination of abortion?

DR. CRAIG: Yes, I think that's right. It's an incremental approach. This Mississippi law would still allow abortions in Mississippi up to 15 weeks of gestation. So it doesn't eliminate or rule out abortions, but that might come later as state legislatures are emboldened by the Supreme Court's decision. So some states may go further in outlawing abortion. You mentioned the long political battle that lies behind this decision. I want to take my hat off to the long-suffering pro-life forces that have labored against enormous odds to try to bring this reversal to pass. I can well remember decades ago people saying the abortion debate is over. Roe v. Wade has decided it. The Supreme Court’s Casey decision confirmed it. Why don't these pro-life people just recognize reality? They're never going to overturn this. And they didn't give up. They stood their ground for what they believed in and fought against enormous odds and now, miraculously, may be on the verge of having this horrible decision finally reversed.

KEVIN HARRIS: The article quotes several of the justices. I wonder if you would comment on a couple of them. This quote from Justice Thomas – he says (this is during the hearing):

“If I were to ask you what constitutional right protects the right to abortion, is it privacy?” Thomas asked. “Is it autonomy? What would it be?”

DR. CRAIG: That is the question. What in the world in the Constitution in the words of the framers could be interpreted to say that abortion right up through the ninth month of pregnancy is legal in this country? Privacy? Privacy would never justify the homicide of another human being. Autonomy? Autonomy supports the pro-life position because the unborn baby is a distinct complete human being. These pro-choice arguments are based, frankly, on obsolete science. The slogans like “My body, my choice” or “Keep your hands off my body” are based on antiquated science that thinks of the developing fetus as an appendage to the woman like an appendix that can be removed at her will when in fact this is a separate distinct human being that is developing within her. Arguments about autonomy actually support the pro-life position and not undermine it. I remember years ago talking to a friend about this. I said it seemed to me that eventually it's inevitable that the pro-life position will win, and he looked at me with surprise and said, “Why?” I said because of the ongoing science. The development of in-utero photography and the incredible photographs that come of these little unborn infants with their little fingers and toes, their eyelids and facial expressions, even sucking their thumb. We're dealing here with little human beings – in effect, babies – and it just becomes obvious that you are killing unborn babies when you engage in this sort of abortion. So it seems to me that as science develops it has made it increasingly difficult for pro-choice people to argue that this is just someone's body and they have the right to do with it whatever they wish.

KEVIN HARRIS: Here's another interesting quote. The New York Times says,

Gorsuch implied that the court’s previous focus on viability — the point after which a fetus can survive outside the womb — was inappropriate. (Many abortion opponents emphasize that younger fetuses are living beings.) “If this court will reject the viability line, do you see any other intelligible principle that the court could choose?” Gorsuch asked.

Thoughts?

DR. CRAIG: Right. Again, viability alone – if you adopted that, actually, it would severely curtail Roe v. Wade because in this country many people don't realize abortion is legal right up through the ninth month of pregnancy. A woman who is nine months pregnant can go in and get what's called a partial birth abortion which is one of the most gruesome and hideous procedures in which the baby is partially delivered, partially extracted from the woman's cervix, and then the doctor takes forceps and goes in and crushes the skull of the little baby killing it and then extracts the remaining portions of its carcass from the mother. It’s just an inhuman procedure that is permitted because of this antiquated science behind Roe v. Wade. So even if you adopted a measure that said once the baby is viable then abortion would be illegal, that would curtail Roe severely. But obviously, I think the ability to survive, say, a premature delivery is no test of humanity. The unborn infant is a human being in development but not yet ready to be born and so it's in need of nurture and safety to develop fully and be born, not to be killed prematurely.

KEVIN HARRIS: I know that you wouldn't presume to know what God would do in a given situation, but I wonder if you think God would bless us as a nation if we eliminated the killing of unborn babies. Could this upcoming ruling be God's way of beginning a change in our attitudes about life and things like that in this country?

DR. CRAIG: I don't know. I just say we should reverse this decision because it is the ethical thing to do, not so that we can be blessed for it. But having said that, I do think that a nation which values life, which values human life, is apt to be more humane in other ways than one which devalues life as our present culture does on the basis of this Roe v. Wade decision.

KEVIN HARRIS: We have until July when this will probably come down.

DR. CRAIG: I know. It is agonizing to wait. How many more unborn babies will die before this decision is made public? It’s agonizing.

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