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June V. Russo Must Be the Death Knell of Pro-Life Judicial Supremacy and Incrementalism

by James Silberman Read Profile arrow_right_alt

The decision offered by the supreme court in June Medical Services v. Russo cannot seriously be taken as a surprise as the history of abortion litigation in America over the last half-century is one of unrelenting dehumanization of preborn human beings. Not one iota of Roe has been rolled back in 47 years.

These decisions to mandate that the lethal brutalization of preborn humans be allowed in every state have come exclusively from courts made up of a majority of Republican appointees. Excepting the time between Antonin Scalia’s death and Neil Gorsuch’s confirmation during which there was a 4-4 split, the supreme court has been made up of a majority of Republican appointees for the entire duration of legal abortion in the United States. The Planned Parenthood v. Casey (1992) decision was reached by a court of eight Republican appointees and a pro-life Democrat who dissented in Roe. A better opportunity to overturn Roe could not have been fathomed in the wildest, most optimistic of pro-life imaginations, and yet, even the ’92 court spat on their constitutional obligations by upholding legal abortion in full.

The June v. Russo decision to strike down Louisiana Act 620 was 5-4, but this ratio does not fully capture the pro-abortion status of the current court. True to form, Clarence Thomas wrote a separate dissent calling Roe unconstitutional: “[Our precedents] created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

Thomas has written many similar opinions since joining the court in 1992, including in Gonzalez v. Carhart (2007) and Whole Women’s Health v. Hellerstedt (2016). Though they agreed with Thomas regarding the Constitutionality of the abortion regulations in question in these cases, neither Roberts nor Alito ever joined Thomas’ separate opinions calling for Roe’s reversal. In June v. Russo, Thomas’ opinion was once again spurned by Alito, with Kavanaugh and Gorsuch also passing on their first opportunity to join Thomas in denouncing Roe. Though Alito, Roberts, Gorsuch, and Kavanaugh have all expressed support for various abortion regulations within the framework of Roe and Casey, there is no reason for strong optimism that any current justice other than Thomas will vote to overturn them. Optimism for five such votes any time soon is likely a delusion.

The Good News

The need for course change should now be thoroughly understood, so we can proceed to the good news: The court’s June v. Russo opinion has the potential to be the best thing that ever happened to the cause of equal justice and protection for preborn humans if it shakes pro-lifers free from judicial supremacy and incrementalism.

Josh Craddock – known best in anti-abortion circles for his paper published in the Harvard Journal of Law and Public Policy explaining that the 14th amendment, rightly understood and applied, outlaws abortion and his Live Action video on the same topic – wrote in a tweet that the June v. Russo decision is the “death knell” for the pro-life establishment’s strategy. Craddock then points to bills like the Abolition of Abortion in Oklahoma Act (a bill of total and immediate abolition) as the solution and rebukes National Right to Life for their opposition to it.

Pro-lifers must join Craddock in acknowledging the dead end that incrementalism has hit and in condemning those pro-life organizations obstructing state-level abolition, which, especially after June v. Russo, is the practicable path forward.

Furthermore, state-level abolition by way of Roe’s nullification is the only moral path forward. The strategy of submitting to Roe while regulating abortion to the greatest degree the court will allow was never an ethical strategy to begin with.

A Divine Mandate

The holding of Roe is that the various state governments must allow the mass murder of preborn humans. (“Murder” being the word used because, pretense aside, we all know it’s murder, as did Blackmun, Kennedy, and all the other justices and pro-choicers.) Such a decree can never, in the true sense, be legally binding, and submission to such a decree is a sin. All people at all times everywhere have an immutable obligation before God and neighbor to resist such an order. The obligation of the federal executive, federal legislator, governor, state legislator, and state judge is to interpose against the federal judiciary. The obligation of the citizen is to demand this interposition.

In recent weeks, I’ve spoken with a number of pro-life incrementalist lawyers and lobbyists about immediate abolition. Responding to their assertions that nullifying Roe at the state level would be illegal and/or immoral, I asked them whether it was illegal and immoral for Wisconsin, Michigan, Vermont, New York, and Massachusetts to nullify the Fugitive Slave Act. They all dodged the question. “Slavery and abortion are not the same thing… I’m really not interested in playing rhetorical gotcha right now,” I was told by a Virginia-based Christian law professor and former US attorney. Pro-life judicial supremacists will often not give an answer because they know the underground railroad was a righteous cause and that state-level nullification to defend the underground railroad from an evil federal law was a righteous cause.

Authority, in its legitimate forms, is God-ordained. But there is no unconditional authority except that which belongs to the Lord. Lest we sin, we must not submit to the depraved and savage capriciousness of the court’s abortion jurisprudence when doing so means the constant destruction of our preborn neighbors.

A Constitutional Mandate

God’s word is the only foundation needed for such defiance (and for many defiers of tyrants, it was the only foundation at their disposal), but state magistrates today also have a Constitutional mandate to uphold the right to the equal protection of the laws against murder. The argument that the 14th amendment doesn’t rightly provide equal protection to preborn humans is made by intelligent and sometimes conservative legal minds including Scalia, but that doesn’t make it any less preposterous.

The 14th amendment was a legal-political expression of “never again” sentiment. Its express purpose was to abolish the separation of humanity from the equal protection afforded by legal personhood. The idea that there’s a loophole in the amendment that allows the concept of human chattel who can be denied the equal protection of the law just so long as you first classify them as non-persons is outrageously illogical. If “person” as used in the 14th amendment does not include all human beings, it provides no guarantee to anyone.

Craddock explained in his paper that “person” and “human” were, at the time of emancipation, legally interchangeable terms: “According to dictionaries of common and legal usage at the time of the Fourteenth Amendment’s adoption, the term ‘person’ was largely interchangeable with ‘human being’ or ‘man.’ The 1864 edition of Noah Webster’s American Dictionary of the English Language defined the term ‘person’ as relating ‘especially [to] a living human being; a man, woman, or child; an individual of the human race.’ The entry for ‘human’ included all those belonging to ‘the race of man.’ No dictionary of the era referenced birth or the status of being born in its definition of ‘person,’ ‘man,’ or ‘human being.’”

By their strict adherence to post-constitutional and sadistic supreme court abortion decisions, every governor, state legislator, and state judge expresses contempt for their oath of office. There is no greater imaginable hypocrisy than swearing to uphold a document which prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws” and then writing or enforcing laws sanctioning mass murder. Anyone who does so should be voted out or impeached for moral turpitude and assault on the constitution.

Let the Cry For Abolition Ring

The alternative to pro-life incrementalism (submitting to the Roe while regulating abortion to the greatest degree the court will allow) is abolitionist immediatism. Immediatist sentiments were perhaps best articulated by British slavery abolitionist Elizabeth Heyrick and American abolitionist William Lloyd Garrison. During an 1833 meeting of the American Anti-Slavery Society, Garrison read the abolitionist Declaration of Sentiments, eviscerating any proposition of incrementalism: “We regard as delusive, cruel, and dangerous, any scheme of expatriation which pretends to aid, either directly or indirectly, in the emancipation of the slaves, or to be a substitute for the immediate and total abolition of slavery.”

Garrison understood that the nature of politics is compromise, and that politicians (excluding the extreme few with unmovable moral convictions) will naturally seek the path of least resistance. They will not take drastic action to abolish a great moral evil unless the option to compromise is taken off the table by the people. Incremental legislation will be used by politicians as an attempt to appease those demanding justice; to quell the righteous outrage which demands the abolition of a monstrous practice. This is exactly what has taken place in Texas, Oklahoma, Indiana, and Idaho in recent years.

On February 25, 2019, The Abolition of Abortion in Texas Act was assigned to the Texas House Judiciary and Civil Jurisprudence Committee chaired by Rep. Jeff Leach. Knowing that he was not going to pass or even allow a vote on the bill, Leach had to do something to save his pro-life credibility. On March 7, he filed the Born-Alive Infant Protection Act, a bill which does virtually nothing. It was passed and signed by the governor. Leach was hailed by the pro-life establishment as a hero. He spoke at the Austin March for Life. Texas Alliance for Life gave him a 100% pro-life rating and their “Courageous Defense of Life Award.” That is how abortion was kept legal in Texas.

It’s a cozy arrangement between pro-life politicians and pro-life lobbyists where they reward each other for preventing abolition and then use their “victories” to fundraise and solicit votes. Everyone wins except the babies, who continue to be slaughtered. Incremental compromise bills thus have the effect of delaying abolition. They delude the people into thinking the politicians are doing all they can, express cruelty to the victims, and are dangerous to the spiritual and moral health of the culture.

Heyrick’s 1824 pamphlet, Immediate, Not Gradual Abolition, explained that the indefinite perpetuation of an evil of such monstrous proportions as chattel slavery is made certain by the contemplation of gradualism and compromise, which is “the grand marplot of human virtue and happiness.”

“The slave holder knew very well that his prey would be secure, so long as the abolitionists could be cajoled into a demand for gradual instead of immediate abolition. He knew very well, that the contemplation of a gradual emancipation, would beget a gradual indifference to emancipation itself. He knew very well, that even the wise and the good, may, by habit and familiarity, be brought to endure and tolerate almost any thing…

“[T]his GRADUAL ABOLITION, has been the grand marplot of human virtue and happiness; the very masterpiece of satanic policy. By converting the cry for immediate, into gradual emancipation, the prince of slave holders, ‘transformed himself, with astonishing dexterity, into an angel of light,’ and thereby ‘deceived the very elect.’ He saw very clearly, that if public justice and humanity, especially, if Christian justice and humanity, could be brought to demand only a gradual extermination of the enormities of the slave system; if they could be brought to acquiesce, but for one year, or for one month, in the slavery of our African brother, in robbing him of all the rights of humanity, and degrading him to a level with the brutes; that then, they could imperceptibly be brought to acquiesce in all this for an unlimited duration.”

Legislation to immediately abolish abortion by treating Roe as the legal nullity it is has already been introduced in Oklahoma (SB13), Texas (HB896), Idaho (HB361), Indiana (HB1089), Washington (HB2154), Alaska (HB178), and Missouri (HB2285), with abolition bills number eight, nine, and ten coming in three more states at the beginning of the next legislative session. Many pro-life leaders are working against these abolition bills (see here, here, here, here, here, here, and here for just a few examples among many). It’s time for those who have kept silent for unity’s sake but are disgusted with National Right to Life and other pro-life organizations and politicians fighting against abolition bills to speak out. With Craddock and the abolitionists, deliver a well-deserved rebuke to those pro-life leaders opposing the immediate abolition of abortion. Deliver it repeatedly until the necessary effect (the end of pro-life submission to Roe) is achieved.

Roe should have been defied in every state within weeks of January 22, 1973. We may be 47 years late, but better that our obedience to God and love for neighbor be delayed than we remain in the sin of continuing to subject innocent children to the abortionist’s knife for years and generations more to come. That is – unequivocally – what the opponents of Roe’s nullification and abortion’s immediate abolition, whether they be pro-choice or pro-life, are complicit in.

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