Josh Stump posted this article on Facebook, September 2, 2020. It’s is also available on Medium. Reposted here with permission.
“I know, as a Christian, I have to vote for Trump, but I just really don’t want to.”
So said a good friend of mine in hushed tones at a church gathering before the 2016 election. This woman is near saintly. She is generous, kind, gracious, talented, intelligent and has dedicated herself to serving others in the name of God. So her words really struck me. At first, I was just sort of baffled and incredulous. Why on earth would she think that anyone who follows Jesus would also want to be led by Trump, much less feel obligated to vote for him? I mean, Trump was (and is) the least like Jesus of any American politician I have encountered which is undoubtedly why she didn’t want to vote for him. Look back at how I described my friend above. Trump is none of those things and often seems to go out of his way to be the opposite of those things. So, why was this loving woman feeling so compelled to support a person who clearly shares none of her values?
It turns out the answer can be boiled down to one word: Abortion.
Last week, I posted a bit of a rant about how Christianity was established in and built on love (just ask its founder) only to see so many of its current followers abandon love in favor of politics and self-righteousness (just watch the news). My question then was, “Why?” Since then, many people have sent me articles, book excerpts, videos, etc. with really interesting discussions of that question from a variety of different angles. It has been informative, depressing and inspirational all at once and I encourage everyone to keep digging into that question.
One tributary branching off this larger discussion was why would Christians vote for Trump given his obvious distaste for Christian values. The answers sometimes centered around vague notions of “family values” which is so stained with irony it boggles my mind, but mostly the discussion ended up coming back to abortion.
The thinking appears to go something like this. Abortion = infanticide and therefore is the most important issue with no close second place; the Supreme Court made a massive mistake in Roe v. Wade giving women a constitutional right to govern their own bodies; Congress and State legislatures cannot outlaw abortion now because of Roe; Trump has promised to put Justices on the Supreme Court who will overturn Roe v. Wade and therefore free legislators to criminalize abortion. Therefore, the most important issue in the election is who will place “conservative” Justices on the Court that will undo Roe and put an end to most or all abortions.
Many Christians appear ready to overlook corruption, racism, treason, criminality, misogyny, bullying, weakening national security, pandering to dictators, cruelty to the weak and poor, failures to lead through a pandemic, and policies and practices that keep us violently divided (among other things), if it means getting more Justices on the Court that will help end abortion.
Listen, I don’t agree with that sort of one issue approach no matter what the issue is, but many, many Christians see abortion and the ability to legislate morality on issues of sex and gender as that important.
Here’s the catch…or actually, the “con” that has been sold to the American Christian and everyone who wants to outlaw abortion. Trump’s policies and politics might actually lead to more abortions, not fewer and Roe v. Wade is almost certain to remain the law. “How can that be?” you might ask. After all, Biden is pro-choiceish and Trump is going to get Roe overturned…except, no, he’s not, and even if you are staunchly pro-life, you should be thankful that he won’t, and even if he did (which, again, he won’t) that might not actually lead to fewer abortions, just more traumatized women with criminal records.
So, here’s the deal. I’m not going to try to change anyone’s mind on abortion in this post. I’m just going to do my best to explain one of the reasons it should not be the guiding issue in the next election.
Let’s start with just a bit of history and Constitutional law. Sounds fun, right?
In 1879, Connecticut passed a law essentially banning all birth control. In 1965, that law was challenged in the Supreme Court after a birth-control clinic was opened by “Griswold” in Connecticut. The question was: does the Constitution prohibit a State from outlawing birth control?
The Justices of the Supreme Court looked at the Constitution and found nothing about birth control. So, the majority of Justices got a little creative. They looked at the bill of rights and decided that one could infer a general right to privacy given how important privacy is in some of the amendments. After all, if the founders wouldn’t let police in your house without probable cause and a warrant, then surely they valued privacy. So, even though the word “privacy” does not appear in the Constitution, the majority of Justices agreed that it should have or was probably meant to, or could just be implied or something like that. And a “new” constitutional right was born to allow the Supreme Court to strike down Connecticut’s law against birth control.
The Court found that the Constitutional right to privacy prohibited the government from interfering in a person’s right to access birth-control and therefore it could not be illegal to set up a birth-control clinic. So what does that have to do with Trump and abortion? Hold on. I’m getting there.
Now fast forward to 1973 when the Court was getting ready to rule on Roe v. Wade. Jane Roe (a fictional name to protect identity) sued Henry Wade. Texas had a law making abortion illegal except to save the life of the mother and Wade was a representative of the State charged with enforcing that law. Roe argued that the law violated her Constitutional right to privacy as established in Griswold. The Court agreed and found that the right to privacy made the Texas law unconstitutional. So, while the Court in Roe did not find a constitutional right to have an abortion (as some suggest), it did extend the right to privacy to cover abortion making it difficult for States to criminalize abortion.
One note here on how the Supreme Court works. They follow a principle called stare decisis. This means that the Court is bound to follow the precedents set by prior Supreme Court rulings. So, because Griswold had already established a right to privacy, the Roe Court had to look at that as precedent and apply the right to privacy to the Texas abortion law. In other words, if it had not been for Griswold, the decision in Roe would likely have been different. They are necessarily linked.
Here’s the point (long awaited I’m sure). Any new case on abortion has to consider not only Roe but Griswold. To fully overturn Roe, a Court would likely have to overturn Griswold and find that there is no constitutional right to privacy in the US. Said another way, overruling Roe v. Wade would not just be about abortion, it would be about privacy generally. Now ask yourself this, how likely is it that the Supreme Court is going to say there is no right to privacy in the United States? Before you answer, consider that since 1972, a majority of the Supreme Court has been appointed by Republican Presidents. So, for 47 years, Republican appointees have controlled the court and not one case overruled the key finding in Griswold or really even seriously questioned it.
Because of this history, overruling Roe would likely mean that States could govern what happens in your home and bedroom. From birth-control to your sex life, everything would be back on the table. And that is because the Court would have to go back on 55 years of precedent and change its mind on privacy…not abortion…privacy.
That’s why I say, it’s not going to happen no matter who Trump puts on the Court. Lawyers know this. Politicians trying to tap into Christian angst about abortion, always promise otherwise. But it is, as the great Mary Poppins would say, “A pie crust promise…easily made, easily broken.” And they’ve been breaking it for literally my whole life.
And, the kind of Justice that would be willing to overturn Roe and therefore Griswold and the right to privacy, is not the kind of Justice most conservatives would want anyway. You see, Republicans generally seek out “conservative” justices, but in the context of a judge that doesn’t mean conservative like it does for a politician. For a judge that means he or she generally looks at the law and tries to follow exactly what it says or what it means as opposed to what they think it should say or what they want it to mean. They feel like the laws should be made by the legislatures and not the Courts and so they try to limit the scope of their own power. The problem with that, for anyone hoping to see Roe overturned, is that only a very activist Justice would overturn that line of cases at this point.
So, to recap. Roe isn’t getting overturned. It’s not impossible, but it is highly, highly unlikely. Republican appointed Justices haven’t done it in the last 5 decades because none of them want to undo the Griswold decision and for good reason no matter how they happen to feel about abortion. And, the conservative Justices that Trump appoints are not likely to want to rock the boat that much unless they are so extreme that they are willing to undo the right to privacy altogether. Would you really want that? Even if you are “pro-life,” would you trade your personal privacy for the possibility of harsher abortion laws?
And so, the catch is that no matter what Trump does, the odds are that Roe is not going anywhere.
There is also some excellent research out there showing that criminalizing abortion may not result in fewer abortions, which is a point for another day, but an important one. It is worth asking are you really interested in fewer abortions or just punishing the women who feel compelled to seek them out? If I told you that I could wave a magic wand and cut the number of abortions in half but only if they remained legal, would you do it? If not, I wonder if you are really anti-abortion or anti-people who get abortions? Maybe you should wonder the same.
Personally, I would rather see us focus on better access to birth control and education about family planning and procreation (not to mention wealth disparity, gender inequality and general attitudes about sex and morality) which many people much smarter than me believe to be the things that actually result in fewer abortions. Do you see the irony there? More and better education and birth control brings the overall number of abortions down. But if you strike down the case that protects a woman’s right to choose you also lose the ability to protect the right to better education and birth control. I get why anyone would be troubled (to say the least) by abortion, but shouldn’t the goal then be for there to be fewer of them as opposed to just more punishment?
I didn’t write this just to explain some legal stuff you never asked for anyway. I am writing this in an attempt to release anyone from the idea that the outcome of the coming election will so alter the landscape of reproductive rights that abortion should be the singular issue. I’m writing to answer my friend’s question about voting for Trump with a resounding, “don’t worry, you don’t have to.” Chances are, abortion will continue to be protected by the Constitution regardless of who the President puts on the Supreme Court. I mean, that hasn’t changed in the last 4 years or even the last 47. So if Trump can’t make abortion illegal, why tolerate all the bad of Trump when you can’t get the one thing you really wanted from him anyway?
Of course, none of this is quite as absolute or certain as it may seem here. And I’m certainly not arguing abortion or reproductive rights more generally doesn’t matter or should play no role in how you evaluate a political candidate. But the reality is that Trump replacing RBG will not bring down Roe v. Wade and if it did, you stand to lose your ability to keep the government out of your bedroom. What if the next President or state legislature decides that it is in the public interest to limit how many children you can have? You think that’s crazy? Don’t forget that this whole thing started because a State outlawed birth-control. All birth control. You’re telling me you can’t imagine a radical environmentalist determining that it’s better for the earth if everyone only has 1 kid and you have to go through a stringent licensing process to do that? Well because of Griswold and Roe, right now they can’t. Do you really want to give up that protection?
All of this to say, if you’ve read this far, do this one thing for me. Ask yourself if abortion was going to remain legal regardless of who is the next President, would you still vote for Trump? If the answer is no, you should give in to your better nature and vote against the man who brags about molesting women, defends white supremacists and is treating our highest office as his own personal license to demean and degrade the people that Jesus was most focused on helping.
I’m not trying to change your mind about abortion. It’s just the idea that Trump will fundamentally change the law on that issue is a lie. And this election is too important to hinge on yet another lie.
Just please give it some consideration. Thanks.
For more from Josh Stump, check out his articles on Medium @stumptown1.
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