The first rule of law: protect the innocent

By now, with the Dobbs v. Jackson oral argument in the rear-view mirror, the Justices of the Supreme Court will have met and cast their votes on the future of abortion in America. One can only pray that in the inner chambers of the Supreme Court, the process of assigning drafts that will serve as Roe’s obituary has begun. Oh God, let it be so.

I am eager to say good riddance to Roe. The scourge of this abomination is comparable only to America’s other most horrible sin—slavery and the regime of racial supremacy. Roe v. Wade has torn apart our country politically and defined cultural battles for a generation. But it has also led us to question our national identity and whether the project of constitutionalism could endure as a legitimate project alongside what is, indisputably, the legally codified killing of unborn persons.

The response to the obtuse, rogue constitutionalism set forth in Roe and cemented by its progeny in Planned Parenthood v. Casey, is not to jettison constitutionalism. It is, instead, to return to a just constitutionalism—one that interprets the Constitution according to text, structure, and original meaning.

America was orchestrated with a just project in mind. It began with the truth that our rights come from God. An entailment of such a proposition is that rights are defined by God’s intentions for humanity, not black-robed Philosopher-Kings. We have failed to live up to those ideals from the very beginning. And still, the quest for justice is not yet complete. As in times past, we have corrected our errors and sought to redress our injustices. Supreme Courts have reversed unjust decisions in the past. May they do the same to Roe in Dobbs.

Government is ordered by God for the preservation and advancement of justice (Romans 13:3-4; 1 Peter 2:14). From this truth, we deduce a simple maxim for governments and magistrates to consider as their most basic priority: Protect the innocent. Government policy must be intended to protect, not to harm. Of course, governments can do unintentional harm, learning after the fact that a particular policy undermined the common good. A just government, however, corrects its mistakes.

What makes the tragedy of Roe so calamitous is that it perpetrates the very thing government is called not to do—to harm. Under Roe, more than 60 million Americans have lost their lives under a regime of legal murder. There is no language scalable to the horror of that reality. Individuals bristle as the label of “murder.” As an academic ethicist, I can tell you that abortion is murder—the intentional taking of innocent life. It is prohibited by the Sixth Commandment (Exodus 20:13). The natural law tells us that murder of the innocent is wrong, so abortion advocates finesse a so-called “right” to abortion by clouding the definition of what constitutes a “person.” All of this ignores what we often all forget to squarely reckon with: Each of us was once an unborn “fetus.”

An unborn child is not an inert substance. An unborn person exists from the moment of conception, genetically distinct from his or her mother, and a being who possesses all the necessary biological data and potency to live outside the womb. In other words, an unborn child is a person. Not just a “possible” person, but an actual person. God is the author of life, and it is from him that humans owe their image and their dignity (Genesis 1:26-27; Acts 3:15). As an intrinsic good, life is worthy of protection under the law and all just law recognizes this truth. Governments are constituted to protect the right to life.

Roe is an affront to all these basic truths. Roe is an affront to reason, justice, and God’s own righteousness. In the end, the law matters. But law should conform to Law.

At a time when Christians are tripping over one another to appear the most sensitive to issues of injustice, many are missing what is in front of them. The irony of our moment is that in the rush to be the most socially aware generation of American history, a political and cultural regime has turned its eyes from the most obvious example of systemic injustice. We are now on the threshold of rectifying this injustice.

Looking back at history’s most grievous horrors, Americans of this so-called enlightened generation often ask themselves, “How could those in power have perpetrated such horrors as the slave trade or the Holocaust?” I can tell you how—look no further than what a legal regime aided and abetted by the cruel overlords of progressive culture have done to the unborn. They have torn the unborn limb to limb under the guise of “choice,” “autonomy,” and Justice Anthony Kennedy’s ghoulish understanding of “liberty.”

Roe must go. Just constitutionalism dictates it. But a just God demands it.