Pro-life media outlets are abuzz over the arguments being made in briefs filed with the Supreme Court of the United States (SCOTUS) in a high-profile abortion case (No. 19-1392) which the court has agreed to hear. What should we make of the arguments being made, and are the governors who have voiced their support of Mississippi to be applauded?
The short answer is yes! Some good arguments are being made, and it is encouraging to see a coalition of governors speak out on the right side of the debate. Of course, once down in the weeds of the briefs, we find a mixed bag of arguments. Mississippi and the coalition of governors do make some politically motivated, utilitarian arguments with which many abolitionists would not agree. However, let us focus on the positive. Mississippi correctly argues that there is no right to abortion in the Constitution. Therefore, per the rights of the States that are explicitly protected in the Tenth Amendment, abortion criminality belongs under the purview of the States. Mississippi puts it this way: “Because nothing in text, structure, history, or tradition makes abortion a fundamental right or denies States the power to restrict it, that ‘power[ ]’ is ‘reserved to the States.’” Right on, Mississippi!
On 29 July 2021 a dozen governors, including Oklahoma Governor Kevin Stitt, filed an amicus brief in support of Mississippi’s petition. Their brief reiterates: “The Fourteenth Amendment has nothing to do with abortion. Therefore, regulating abortion is constitutionally committed to the States (as no other constitutional provision speaks to abortion either).” Well said, governors!
The bottom line is that thirteen States are officially calling upon SCOTUS to reverse its opinion in Roe v. Wade and its corollaries. This is an opportunity for the court to correct its abortion jurisprudence. This is not a bad thing; this is a very good thing. That these governors are on the right side of the argument is hugely encouraging, and we should congratulate them for taking a stand.
One must ask, could these governors seize the opportunity to build on their momentum? Could they immediately, whether separately or with a unified front, put their message of State Sovereignty into action? It turns out that there is a lesson from our history with slavery that answers this question emphatically.
In the 1850s the entire federal government was pro-slavery. Congress passed the Fugitive Slave Act in 1850. To carry out this law, federal marshals were tracking and capturing escaped slaves, and those who harbored them, throughout the States. In 1857 SCOTUS issued its infamous Dred Scott opinion that slaves were property before they were people.
In the face of this great evil perpetrated by all three branches of the federal government, what was the response of those States holding that slavery and man-stealing were immoral and unlawful? Did they file court case after court case for fifty years, waiting for SCOTUS and the feds to change their minds? No, they recognized that slavery and man-stealing were so self-evidently wrong and unlawful that immediate action was called for to protect the liberty of innocent human beings.
Wisconsin, New York, Vermont, Massachusetts, and Michigan did not comply with the immoral and unconstitutional federal pro-slavery policy. They obeyed God and their constitutions by immediately protecting runaway slaves within their jurisdictions. State Legislatures passed laws to nullify Congress’s Fugitive Slave Act within their borders. State courts refused to cooperate with federal courts, including SCOTUS, and local law enforcement personnel actively protected ex-slaves and volunteers on the Underground Railroad by thwarting federal marshals.
A similar response against the federal policy of abortion is needed today. The issue at hand is not some arcane bureaucratic rule or complex interstate trade agreement that can wait for SCOTUS to finally figure it out and tell us how to proceed. Rather, we are dealing with a clear-cut, immediate matter of life and death. There was a time when officials of the States recognized when immediate action was the only reasonable and righteous response. Is not murder by abortion as clearly wrong as slavery and man-stealing?
We are glad for SCOTUS to have this opportunity to repent. The appeal of these governors to SCOTUS is a good thing, but it is only one thing they could do. We must encourage them to take the next step in abolishing abortion. Governors need not wait for permission from SCOTUS to abolish innocent bloodshed in their sovereign States.