The OLD Philosopher – John M. Miller
Last week the US Supreme Court publicized two bombshell judicial decisions. On Wednesday they essentially ruled that the federal government can pass no substantive laws regarding firearms possession. Only the states can do that, they said. On Thursday they threw out the Roe vs. Wade Supreme Court decision of fifty years ago, which had declared that all women in America have the right to an abortion under certain carefully proscribed conditions. There was a great deal more to the two rulings, but this was the gist of them.
Because several “red states” had anticipated the latter decision was coming, they had already passed laws which made abortion in those states illegal as of last Thursday afternoon. One news story said that an abortion clinic in Alabama had to tell several women who had appointments that afternoon to receive abortions that it would no longer be possible for the clinic to grant their requests. The story said some of the women were instantly enraged, others were immediately in tears, and everyone, staff and patients, were emotionally traumatized, as was well more than half of our nation.
Every sensible person would agree that it is immoral to use a weapon to kill another person without cause, and that the causes where such an act might be deemed legal are very narrow indeed. But the right to an abortion became a federally recognized right via Roe vs. Wade, and though the morality of that decision was hotly debated before and since that ruling, the legal precedent was established five decades ago.
Nonetheless, in a majority opinion of 5-to-4, five justices snatched that federal right away from every woman, leaving it to the fifty states to decide their own laws regarding abortion. Wrap your mind around that; only five people, four men and one woman, took it upon themselves to take away a right which the Supreme Court itself had granted fifty years earlier. In other words, by the action of only five individuals, abortions may be allowed in some states and forbidden in others. That is like saying that voting can be allowed in some states but not others, or free speech can be allowed in some states but not others.
Donald Trump promised that he would appoint only anti-abortion justices to the Supreme Court. By the action of Mitch McConnell, the ex-president had the opportunity to name not two, but three, justices. As we all know, Donald Trump is always a man of his word, and now three of the nine justices on the Court are appointees from his four-year term as president.
A legal right is a right, and the Supreme Court in effect abrogated an important right for millions of women who happen to live in states that now or very soon will outlaw abortions under all or nearly all circumstances. That is clearly wrong; it is even immoral.
In their Senate Judiciary Committee hearings, all three of the Trump appointees agreed that the Roe vs. Wade decision made that decision settled law, and all three lied. That wasn’t a very moral thing to do.
The five justices who voted to negate abortion as a federal right said they did it for constitutional and legal reasons. They didn’t. They delude themselves. They did it on the basis of their own moral thinking regarding abortion. No doubt the five were influenced by the long-standing teachings of their Church, and in itself, that is undeniably acceptable. Four are Catholics, and one, Clarence Thomas, was raised Catholic but became an Episcopalian after he was married. It may be that his wife is even more inflexible than he is; who knows.
No one can deny that it is perfectly acceptable and fair for anyone to oppose abortion on the grounds of their own personal morality or their Church’s stance on the issue. However, It is not acceptable or fair for individual legislators or jurists in effect to impose their individual morality of everyone else. SCOTUS has effectively rendered abortions impossible for many females who see this issue from a different moral perspective and who happen to live in states where laws severely restrict abortion or forbid it altogether. There is a word for such a decision, and it bears repeating; it is immoral.
In his concurring opinion with the 5-4 majority (but with no other justice joining him), the aforementioned Justice Thomas wrote, “In future cases, we [SCOTUS] should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The first case gave married people the right to contraception, the second the right to sexual relations with a person of the same sex, and the third the right to same-sex marriage.
His words definitely mean that Clarence Thomas believes his thinking on the morality of those decisions needs to be revisited. He apparently hopes those rights should be abolished by new Supreme Court rulings, just as abortions were overturned in the 5-4 2022 ruling. Then he had the pugnacious persona; morality to add, “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
No words should strike more fear into the heart of every thoughtful American than those typically Thomasian originalist challenges. Some pundits have declared the newly publicized Supreme Court abortion decision is an example of Nazism. Perhaps that is an exaggeration. Let us merely say that it is “semi-hemi-demi-Nazism.” This is the kind of extreme social engineering that went on in Hitler’s Germany during the 1930s and early 1940s. Autocrats love to determine morality, so long as it conforms to their individual understanding of morality.
Extreme rightist conservatives or leftist liberals tend to think that they alone possess sufficient moral standing to decide what truly is best for society. No one has a copyright or patent on morality or ethics. Laws should not determine morality, but morality might determine many kinds of laws. Furthermore, laws may reflect morality when there is a very widespread agreement on the morality of particular matters. For example, only deranged people imagine that murder is acceptable, and therefore multitudes of laws and legal precedents try carefully to spell out what constitutes murder. Theft is not morally acceptable, so nearly everyone agrees that it is immoral to steal from anyone. The Ten Commandments codified what had long been considered to be morality; brand new morality did not codify the Ten Commandments.
A society creates a social contract when, after many decades or even centuries, it symbolically stitches together a code for how it shall conduct itself. Many individual concepts of morality coalesce in a consensus to make that social contract a reality. Individuals will differ on what should or should not be included in the contract, but eventually it takes effect, subject to future changes based on a nearly unanimous agreement of the populace. Social contracts are what make nations viable.
Individual moral considerations regarding contraception, sexual relations with someone of the same sex, same-sex marriage, and abortion vary greatly. There is no one-size-fits-all in these and other similar matters. It is wrong-headed, wrong-hearted, and morally wrong to declare laws which negate rights that may be very unpopular to large numbers of people on moral grounds, but ought nonetheless to be rights on legal grounds.
It is not at all difficult to build a case that abortion is ethically unacceptable. But if a woman, young or older, married or single, is pregnant, she may decide it may be more unethical for her to carry that fetus full-term to birth than to get an abortion. There are no good decisions regarding abortions, only varying degrees of bad decisions.
Once a pregnancy has occurred, however, there is always a widespread diversity of convictions on what should transpire. Equity demands that only the woman has the right to decide what she feels is the best, or, more accurately, the least bad, course of action for her to take. To take that right away from her is simply wrong.
Now what shall America and Americans do? A federal election is coming in four months. That is a good place to begin to rectify the egregious wrong that has been inflicted on the United States by the United States Supreme Court. - June 27, 2022
John Miller is Pastor of The Chapel Without Walls on Hilton Head Island, SC. More of his writings may be viewed at www.chapelwithoutwalls.org.