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The Day America Declared War

President Franklin D. Roosevelt described the Japanese attack on Pearl Harbor as “a day that will live in infamy.”  There is another dark, infamous date in our nation’s history:  January 22, 1973, the day when the United States Supreme Court legalized abortion in the case of Roe versus Wade

How could the highest court in the land legalize the brutal murder of innocent children?  What arguments did the lawyers on both sides of the issue make?  What underlying moral and spiritual views surfaced during the hearings?  How had our culture gotten to this point, and where are we as a nation in regard to this controversy today?

The Debates

The oral arguments in Roe v. Wade were presented before the United States Supreme Court by the attorneys involved in the case.  The first was held in Washington, DC on December 13, 1971.  Mrs. Sarah Weddington was the attorney for “Jane Roe” (Norma McCorvey), an unmarried pregnant girl in Texas who went to several doctors seeking an abortion and was denied because of Texas law.  As a result, she filed a lawsuit.  Arguing the case in behalf of the State of Texas was Assistant Attorney General Jay Floyd, who represented Henry Wade, District Attorney of Dallas County.  The second oral argument was presented before the Supreme Court on October 11, 1972.  Mrs. Weddington again represented Jane Roe, and Robert C. Flowers, Assistant Attorney General of Texas, represented Wade and the State.

The Justices of the Supreme Court at the time of the 1973 decision were Chief Justice Warren E. Burger and Associate Justices William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackman, Lewis F. Powell, Jr., and William H. Rehnquist.

From the outset of both oral arguments it was obvious that both Mr. Floyd and Mr. Flowers were outmatched.  Mrs. Weddington was well-prepared, focused, eloquent, and tenacious.  Mr. Floyd and Mr. Flowers, on the other hand, lacked documentation for some statements they made and were not always clear in their argumentation.  They wandered through questions pertaining to other cases and laws in other states.  Even worse, they had little or no conviction that killing an unborn infant is murder.

In the first oral argument, Mr. Floyd had basically given up before he began.  He said, “The State–the State Court, Court of Appeal, held that the State had a compelling interest because of the protection of fetal life–of fetal life protection.  They recognized the humanness of the embryo, or the fetus, and they said we have an interest in protecting fetal life.  Whether or not that was the original intent of the statute, I have no idea.”  What a pathetic attempt to uphold the law!  Mr. Floyd didn’t even have the courage to say, “We should protect unborn children.”  The best he could do was say “they said we have an interest,” that is, the State of Texas said this.  And he had “no idea” what the original Texas statute meant!

Mr. Floyd’s lack of moral fiber became more apparent as the hearing progressed.  After making some improvement by asserting, “We say there is life from the moment of impregnation,” he immediately recanted and said he really didn’t know when life begins.  He then made an amazing statement which revealed his total lack of moral conviction: “When does the soul come into the unborn–if a person believes in a soul–I don’t know.”  Here is an attorney supposedly upholding a law against murdering a child, and he leaves the very existence of the soul up in the air!  What if a person does not believe in the soul?  This would mean that, for that person, killing a man is no more morally wrong than killing a dog, since it is the soul of man that distinguishes us from the animals!

The only real argument Mr. Floyd made was to say that privacy laws are not without qualification: “As far as the freedom over one’s body is concerned, this is not absolute–the use of illicit drugs, the indecent exposure legislation...” But this was too little too late.  The first hearing was over moments later.

Mr. Flowers did even worse in his oral argument in 1972.  He began his argument by asserting, “But it is the position of the State of Texas that upon conception we have a human being, a person within the concept of the Constitution of the United States and that of Texas also.”  This is a fine statement, but he was totally unprepared to even begin to substantiate this point.  Justice Stewart immediately asked, “Now, how should that question be decided, is it a legal question, a constitutional question, a medical question, a philosophical question, or a religious question, or what is it?”  This is the right question! How do we decide? But neither Justice Stewart nor Mr. Flowers had the answer!

Let’s look at this question from another perspective.  How is the question of the murder of a two-year-old child decided?  How does the Supreme Court, or any human court, reach the decision that this is morally wrong and a crime?  Is this a legal question, a constitutional question, a medical question, a philosophical question, or a religious question?  The answer is not difficult for anyone who recognizes that God is the author of moral law.  Unless our laws against murdering a two-year-old child are grounded in an authority that transcends human decision, they have no objective binding power and are therefore subject to change.  If laws against murder derive their authority from human beings, then human beings can change those laws.  The monumental question of taking human life cannot be decided without reference to the One who gives life.  But that was the aspect of the case that was sadly missing.  The role of God was not even mentioned in these hearings.  Our culture had become so secular that the attorneys and justices in this case did not even acknowledge the One who gave us the law against murder, without whom this law would be a mere fleeting human opinion.  They thought in their ignorance and arrogance that they could decide such questions on their own.  That is why they reached the horrific decision that not only struck down state laws against abortion but also asserted that the Constitution guarantees a woman the right to murder her unborn child!

After the hearing digressed into a discussion of particulars of the Texas statute, Justice Stewart returned to his original question about what framework should be used to decide the question.  Mr. Flowers responded, “I wish I could answer that.  I believe that the Court must take these, the medical research, and apply it to our Constitution the best they can.”  Justice Marshall immediately took advantage of the door Mr. Flowers had opened:  “But there’s no medical testimony that backs up your statement that it goes from inception, is there?”  When Justice Marshall continued to press him on this point, Mr. Flowers retreated again: “You’re entirely right there.  But I find no way that I know that any court of any legislature or any doctor anywhere can say that here is the dividing line–here is not a life, and here is a life, after conception.”

What a pitiful excuse for an oral argument!  Mr. Flowers was allegedly upholding a Texas law against abortion, yet he had no idea what the original intent of that statute was.  He asserted that the Court should look at medical research to help decide the case, but he had no medical research to give the court.  He said that life begins at conception but then admitted he did not know any way to establish this claim as fact.  He argued that the Constitution protects the life of the unborn, yet he could not present any evidence to that effect.  The lives of millions of future infants depended on his argumentation, and this is how their right to live was defended!

In arguing the case for a woman’s right to have an abortion, Mrs. Weddington employed a few lines of reasoning which, though simple, were presented in such a consistently clear and precise manner that the Court agreed with her argumentation.  Even while fielding the pointed questions of the Justices, she was able in both oral arguments to keep the discussion moving in the direction she had planned.  To accomplish this, she approached the question from a few basic angles.  The first was to convince the Court that State or Federal lawmakers had not been able to prevent abortions, so why continue a futile statute?  This was the age-old “they’ll just do it anyway” argument.  Mrs. Weddington cited the fact that when abortion was made legal in New York, Texas women just went there to get an abortion.  She also argued that when abortion is illegal, many pregnant women will perform an abortion themselves, resulting in further complications and greater risk of death.

Next, Mrs. Weddington entered an emotional plea on behalf of women seeking an abortion.  “In Texas law,” she argued, “the woman is the victim.”  After all, she insisted, “I think it’s without question that pregnancy to a woman can completely disrupt her life.  Whether she’s married; whether she’s pursuing an education; whether she’s pursuing a career; whether she has family problems; all of the problems of personal and family life, for a woman, are bound up in the problem of abortion.”  She even had the audacity to claim that an unwanted pregnancy is “an irreparable injury”!

The utter hypocrisy of Mrs. Weddington’s argumentation is disgusting.  What about the aborted child?  Where was her concern for the real victim–the unborn baby?  And talk about “irreparable injury”–what is more irreparable and permanent than taking an innocent child’s life?  Mrs. Weddington referred to an aborted baby as a “pathological specimen”!  So the mother is the victim of an irreparable injury, but the child she has slaughtered is just a “pathological specimen”!  Not even records of the atrocities committed by the Nazi regime sound more chilling than these unconscionable statements.

As Mr. Floyd rightly observed, the woman in this case made the choice to become pregnant.  It was absurd to call her a victim.  Mrs. Weddington’s appeal to pity because of the economic and personal hardships caused by pregnancy, if carried to its logical end, would give a woman the same moral right to murder her two- or three-year-old child!  In fact, she admitted that if it could be proven that the unborn fetus is a person, difficult consequences would follow!  Here is part of that discussion:

MRS. WEDDINGTON:     “But here we have a person, the woman, entitled to fundamental constitutional rights as opposed to the fetus prior to birth, where there is no establishment of any kind of federal constitutional rights.”

JUSTICE BLACKMAN:     “Well, do I get from this, then, that your case depends primarily on the proposition that the fetus has no constitutional rights?”

MRS. WEDDINGTON:     “It depends on saying that the woman has a fundamental constitutional right and that the State has not proved any compelling interest for regulation in this area.  Even if the court at some point determined the fetus to be entitled to constitutional protection, you would still get back into the weighing of one life against another.”

JUSTICE WHITE:     “So that’s what’s involved in this case?  Weighing one life against another?”

MRS. WEDDINGTON:     “No, Your Honor, I say that would be different, and the State could prove that there was a person, for the constitutional right.”

JUSTICE STEWART:     “Well, if it were established that the unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?”

MRS. WEDDINGTON:     “I would have a very difficult case.”  

JUSTICE STEWART:     “I’m sure you would.  So if you had the same kind of thing, you’d have to say that this would be the equivalent after the child was born if the mother thought it bothered her health any having the child around, she could have it killed.  Isn’t that correct?”

MRS. WEDDINGTON:     “That’s correct.”

But even Mrs. Weddington was not comfortable with late-term abortions.  When Justice White asked if she would apply her arguments “right up to the time of birth,” she responded, “Obviously I have a much more difficult time saying that the State has no interest in late pregnancy.”  But then she argued that this was more a matter of feelings than legalities: “I think that’s more the emotional response to a late pregnancy, rather than it is any constitutional” issue.  She went on to say, “The Constitution, as I see it, gives protection to people after birth.”  

Mrs. Weddington stressed that the Texas law against abortion should be rescinded because it was vague and inconsistent.  For instance, the law made abortion a criminal act if a doctor performed it, but it did not criminalize an abortion if the mother performed it.  But rather than encouraging the State of Texas to revise and improve the law, she urged the Supreme Court to overturn it.

In the end, it was Mrs. Weddington’s appeal to the woman’s right to privacy that swayed the Court.  Specifically, she appealed to the Fifth, Ninth, and in particular the Fourteenth Amendment: “I think the Fourteenth Amendment is equally an appropriate place, under the rights of persons to life, liberty, and the pursuit of happiness.  I think that in as far as ‘liberty’ is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.”

What does the Fourteenth Amendment actually say?  Here is Section One of that Amendment, which was the part Mrs. Weddington referred to:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Decision

On January 22, 1973, the Supreme Court decided that the Texas State law against abortion was unconstitutional.  Justice Harry A. Blackman delivered the majority opinion while Justices Byron R. White and William H. Rehnquist dissented.  In reaching this verdict, the Court considered evidence from the following fields.

    Ancient Attitudes.  The court cited ancient Persian, Greek, and Roman views of abortion, suggesting that these civilizations had few scruples about abortion.  The majority decision even made the incredible sweeping claim that “ancient religion did not bar abortion”!  But the Court either overlooked or suppressed the facts.  Will Durant, hardly a friend to Christianity, cited numerous records of ancient cultures in The Story of Civilization.  In ancient Assyria, “abortion was a capital crime; a woman who secured miscarriage” was “impaled on a stake.”1 In ancient Persia, abortion was a worse crime than fornication, and “was to be punished with death.”2 In ancient India, “abortion was branded as a crime equal to the murder of a Brahman.”3 Abortion and exposure of infants was common in ancient Greece, and though Romans frequently performed abortions, “philosopher and the law condemned it.”4 And to claim that “ancient religion did not bar abortion” is a plain distortion of history (Exod. 22:22-25).

    The Hippocratic Oath.  The Court likewise denied the relevance of this time-honored vow, which includes such promises as “I will not give to a woman a pessary to produce abortion” and “I will not give to a woman an abortive remedy.”  These vows, the Court argued, reflect the view of a minority of philosophers even in Hippocrates’ day and are not “the expression of an absolute standard of medical conduct.”

    The Common Law.  “It is undisputed that at common law, abortion performed before ‘quickening’–the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy–was not an indictable offense.”  But the Court also denied any precedent in common law for cases of abortion occurring after “quickening,” asserting that it is “doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.”

    English Statutory Law.  England’s first criminal abortion statute was enacted in 1803.  But new legislation called the Abortion Acts of 1967 overturned the previous law, extending abortion rights to cases where it is “immediately necessary to save the life or to prevent grave or permanent injury to the physical or mental health of the pregnant woman.”

    American Law.  As the first oral argument in 1971 conceded, state abortion laws were mostly enacted in the mid-1800s.  Prior to that time, the prevailing view of abortion was essentially that which English common law held.  The Court observed, “It was not until after the War Between the States that legislation began generally to replace the common law.”  Since most state abortion laws were established long after the Constitution was written, a woman at the time of the adoption of the constitution “enjoyed a substantially broader right to terminate a pregnancy than she does in most states today.”

    The American Medical Association.  The Court admitted that in 1857 an AMA Committee on Criminal Abortion called the procedure the “unwarrantable destruction of human life.”  In 1871 the Committee even called “the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females.”  What a different age that was!  The medical profession called on ministers of churches to stand with them against this immoral act!  But the moral courage of those days came to an end in 1970 when an AMA committee, observing that abortion was becoming an increasingly controversial issue among medical professionals, noted a “remarkable shift in testimony” in both the medical and the judicial arenas.  Times had changed!

    The American Public Health Association.  This organization adopted Standards For Abortion Services in 1970 which dealt primarily with expediting and maintaining the safety of abortion services.

    The American Bar Association.  This association passed the Uniform Abortion Act in 1972, which approved of abortion under certain stipulations.

After reviewing this testimony, the Court briefly responded to arguments made in behalf of abortion laws.  The first was the opinion that abortion laws were “the product of a Victorian social concern to discourage illicit sexual conduct.”  The Court quickly dismissed this explanation, insisting that it had no relevance to the case before them.

The second argument was that criminal abortion laws were enacted because medical procedures at the time these laws were passed jeopardized the health and life of a woman seeking an abortion.  But the Court also rejected this argument on the ground that medical knowledge had advanced since that time and abortions were safer.

The third argument held that the State has an interest in protecting prenatal life.  But the Court disagreed with this view as well, citing research which maintained that the real purpose of abortion laws in their historical context was to protect the pregnant mother.

In the end, the Supreme Court found justification for overturning state abortion laws in the woman’s right of privacy:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.  The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.  Specific and direct harm medically diagnosable even in early pregnancy may be involved.  Maternity, or additional offspring, may force upon the woman a distressful life and future.  Psychological harm may be imminent.  Mental and physical health may be taxed by child care.  There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.  In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.  All these are factors the woman and her responsible physician necessarily will consider in consultation.

At the same time, however, the Court argued “we do not agree” with the position that a pregnant woman “is entitled to terminate her pregnancy at whatever time, in whatsoever way, and for whatever reason she alone chooses.”  The majority decision concluded “that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.”  Clearly, the Court Justices who approved this decision had ceased being judges at this point.  They had become politicians trying to please both sides.

As to the definition of a “person,” the Court maintained that the use of this word in the fourteenth Amendment “does not include the unborn.”  It also insisted that “the unborn have never been recognized in the law as persons in the whole sense.”

What was the Court’s view of when life begins?  There were too many conflicting opinions, they claimed, to be able to decide.  “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development in man’s knowledge, is not in a position to speculate as to the answer.”  So the Court insisted that a state has an interest in protecting prenatal life at “some point,” but nobody knows what that point is! The whole issue is a moral guessing game!

The Court summarized this infamous decision as follows:

    A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

    (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

    (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

    (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

    The State may define the term “physician,” as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.

In his dissenting opinion, Justice Rehnquist challenged the Court’s appeal to the woman’s right of privacy, arguing that this definition of “privacy” was not “even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution.”  He also charged that “the decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”

Justice Rehnquist then made an excellent observation regarding the historical context of the Fourteenth Amendment.  The majority decision had argued that the word “person” as used in this Amendment does not include the unborn.  But, as Justice Rehnquist noted, at the very time the Fourteenth Amendment was drafted in 1868, “there were at least 36 laws enacted by state or territorial legislatures limiting abortion.”  “The only conclusion possible from this history,” he urged, “is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

But the majority prevailed in this seven-to-two decision.  With a wave of the hand, the highest court in the nation opened the floodgates for the legalized slaughter of the unborn.  Now, years later, the blood of millions of precious children cries out to heaven.

The Change

How could this have happened? How could a country undergo such a “remarkable shift” in its view of right and wrong?  In the late 1800s and early 1900s, discussion on this subject commonly included such language as “criminal abortion” and the “unwarrantable destruction of human life.”  In fact, in 1870 the New York Times referred to abortion as the “perpetration of infant murder” that “is rank and smells to heaven.”5  A story on “The Evil of the Age” in the Times in 1871 lamented that “thousands of human beings are murdered before they have seen the light of this world.”6  Now the moral overtone of this language has given way to neutral and question-begging expressions such as “the right to choose” and “the woman’s right to privacy.”

As always, these changes happen gradually.  In our nation, the Civil War had dramatic and permanent effects on the moral and religious landscape of America.  The rise of the teaching of Charles Darwin on evolution and the spread of rationalistic views of the Bible which denied its inspiration further weakened American culture as the twentieth century approached.  After this republic had weathered World War I and then the Great Depression, another war erupted which not only took thousands of fathers out of their homes to fight overseas but also took many mothers out of these homes to work in factories.  This shift in the family has had lasting detrimental effects, the first wave of which was felt in the 1960s when the children of the new home environment reached adulthood.  Deprived of the parental training and supervision which previous generations had been given, some of these ungrateful and unruly young men and women led the rebellion of the 1960s.  The Supreme Court decision on abortion came just after this upheaval.  It occurred during a time when old restraints were being cast aside for newfound freedom to experiment with drugs and sex without any feeling of responsibility.  As a result, children came to be viewed as a burden instead of a blessing. These rebels burned with hatred toward authority of any kind as a tidal wave of permissiveness began to sweep the land and long-held convictions about right and wrong collapsed.  Views on everything from decency in dress to the value of human life changed, and this shift was seen in homes, schools, churches, the media, the government, and even the highest court in the nation.

If we remember the Old Testament, we will not be shocked that a culture can change so drastically in its attitude toward the value of human life.  The Israelites knew that there was only one God.  Nature declares this (Psa. 19:1); the law at Sinai forbid the worship of any other god (Exod. 20:15).  God warned Israel not to adopt the morals and manners of the Canaanites (Lev. 18-20), prescribing the death penalty for many of these heinous and perverted acts.  The Israelites understood the value and sanctity of human life; the death penalty was given for murder long before they were a nation and was made a part of the law of Moses (Gen. 9:6; Lev. 20:2).  They realized that children were a blessing from God, a gift to be protected and treasured (Psa. 127:3-5).  That is why Israelite women who were childless considered their state so terrible.  Yet this is the nation that eventually turned to the worship of the pagan god Molech, offering their children as human sacrifices to this idol.  They actually burned their sons and daughters in fire dedicated to this god (Jer. 19:5).

How could a people who once valued and protected human life, especially in their own family, come to despise it to the point just described?  This change in thinking came slowly and gradually just as it did in our country.  The more the Israelites associated with pagans, the weaker their convictions became.  Eventually they justified acts their fathers would never have dreamed of tolerating much less committing.  Even the most clear truths–the existence of God and the sanctity of human life–became cloudy in their minds as they listened to and were intrigued by the religions of the Canaanites.

Yes, there was a time in this country when there were no laws against abortion.  As the Supreme Court hearings revealed, state laws prohibiting abortion were established in the 1800s.  Technically, then, abortion was legal prior to this time.  But that does not mean it was accepted by the majority of society.   We should remember that there were no specific state laws against human sacrifices in those days, but that doesn’t mean the practice was tolerated.  The truth is, there was no need for such laws in the early days of this country, partly because of British law and partly because of the high moral standards of the early Americans.  Laws are often made not to anticipate societal ills but to curb and restrain them after they have begun to damage society.  Paul said, “The law is not made of a righteous man, but for the lawless and disobedient...” (I Tim. 1:9).  The purpose of law is to check evil.  State anti-abortion laws were enacted because the practice of abortion was beginning to spread.  There was cultural opposition to abortion before these laws were passed, and this collective conscience for the most part kept the practice from occurring.  The same change occurred with the passage of laws prohibiting polygamy and the use of powerful drugs.  The fact that there was a period in which there were no laws against these things does not mean that society approved of them or that they should be legal today.  It only shows that there was a time when such things were so reprehensible that people in this society saw no need to have laws prohibiting them.

The Supreme Court in 1973 tried to strike a medium between what they saw as two extremes: the view that life begins at conception, and, on the the other end, the idea that abortion should be permitted right up to the time of birth.  Mr. Floyd and Mr. Flowers said they couldn’t prove that life begins at conception, Mrs. Weddington said she was not comfortable with saying that an abortion should be allowed right up to the time of birth, and the Supreme Court said they weren’t sure how to settle this difficult question!  The truth is, by trying to please both sides of the controversy, they opened the floodgates.  Their allowance of abortion eventually led to the barbaric practice of partial birth abortion.  But what was there to prevent it?  If, as the attorneys and judges in Roe v. Wade claimed, nobody knows when life begins or whether an unborn child is a person, then what is the difference between killing a child a few minutes after it is conceived or a few seconds before it is born?  Without an objective definition of personhood, no one can show a real difference between the two.

Speculating about the beginning, the meaning, and the value of human life is foolish and dangerous.  And yet this is what arrogant men do.  Joseph Fletcher, author of Situation Ethics, set forth criteria for determining personhood.  The first of these was “minimal intelligence”:  “Any individual of the species homo sapiens who falls below the I.Q. 40-mark in a standard Stanford-Binet test, amplified if you like by other tests, is questionably a person; below the 20-mark, not a person...Mere biological life, before minimal intelligence is achieved or after it is lost irretrievably, is without personal status.”7

How brutal and cold!  Fletcher sets himself up as judge as to who is and who is not human based on intelligence!  This means that any person falling below his minimum standards is on the same moral level as an animal.  Aborting a baby or killing a severely retarded adult is no more serious than shooting a dog according to this putrid thinking.

The 1973 decision of the Supreme Court on abortion made the same arbitrary distinctions regarding the meaning of personhood.  Fletcher based his definition on intelligence; the Supreme Court ruling on abortion was based on the equally subjective division of fetal life into trimesters as well as on the vague concept of “viability.”  The problem with both approaches is that they try to resolve the moral issue of abortion by mere biological criteria.  This cannot be done.  Man is not just a body; he has a body and a spirit, and this is what separates him from animals.  God gives us liberty to kill animals for our use, but He forbids us to take the life of an innocent human being because man is made in God’s image (Gen. 9:1-6).  The real question underlying the 1973 Supreme Court decision in Roe v. Wade is: What was the Court’s view of the nature of man?  Did they believe that man is a mere animal?  Did they believe man has a soul?  What was their basis for even saying that taking human life under any circumstance or for any reason is wrong?  How could they uphold a distinction between taking the life of a human and taking the life of an animal?  They avoided the primacy of the spiritual dimension of this issue and thus reached the tragic decision Americans have lived under since 1973.

An abortion advocate might argue, “But the Court couldn’t have defined man as a being created in God’s image and having a soul that distinguishes him from animals.  That would have been an endorsement of religion.”  However, the Supreme Court and lower courts across the land recognize laws against murder.  Do these laws state that murder is a crime because man has a soul?  In fact, do they even state why murder is wrong?  Do they explain why murdering a man is a crime but killing an animal is not necessarily illegal?  These considerations show that there is a moral substructure of our culture upon which our laws are built and without which they become arbitrary edicts of the state.  There is a higher law which Judge Robert Jackson in the Nuremberg trials described as a law which transcends the provincial and the transient.  This law, which emanates from God, is absolute and unchanging.  Whether or not human governments consciously or verbally recognize it is irrelevant to the fact that the moral law of God is the only real basis for saying that taking human life is objectively wrong.  A certain state may not say that murder is wrong because God says it is and because man has a soul, but that does not keep that state from having laws against murder.  So why would questions about the soul, from the viewpoint of the Court, be a factor in determining whether taking the life of an unborn child is murder?  Why was it not sufficient to show that life in the womb is human life–a living, growing human being?  If it is not necessary for legal purposes to define man as a being created in God’s image in order to have laws against murder, then why would such a stated definition be required in order to have a law against abortion?

The list of sources appealed to by the Supreme Court in its 1973 decision is revealing.  It is obvious that the Court had been secularized and that, unlike earlier American institutions, it was careful to avoid the role of God in deciding this issue.  After all, even the Declaration of Independence says that we are endowed by our Creator with certain inalienable rights–life, liberty, and the pursuit of happiness.  They understood that the right to live cannot be objectively established, much less consistently protected, unless God is recognized as the giver of life.  But the Supreme Court tried to separate this right from its Source, and in so doing wrongly granted the right to take life.

Does the Declaration of Independence endorse religion by confessing that we have a Creator?  This foundational document does not “endorse” or give special preference or power to a particular religion or church.  But it does recognize the Creator and our relation to and dependence upon Him. Acknowledgment of God and the basic moral principles that come from God does not mean that the state is under any particular church.  It simply means that a government should recognize such ideas as the sanctity of human life as being absolute, and this implies that their origin is a Source above men.

The Scriptures

What would have been wrong with the Supreme Court at least considering what the Bible says on this matter?  The Court appealed to every authority from ancient philosophers to the American Medical Association in its decision.  Were the Scriptures not worthy of mention?  Would judges in the 1800s have been averse to citing the Bible in their verdict?  Even if the Supreme Court did not recognize the Bible as the inspired Word of God, why would the Justices fail to include Bible verses on this subject under “ancient attitudes”?  Were they ignorant of this teaching, or were they trying to be politically correct and avoid the complications of making the question a church-state issue?  Either way, the Court distanced itself from the Bible and from the Judaeo-Christian ethic which is the foundation of our culture.

The Scriptures clearly teach that life begins at conception.  Elizabeth “conceived a son in her old age” (Luke 1:36).  She conceived a son or human being, not a mass of tissue that later became a human.  That human being was John the Baptist.  This was the “babe” that “leaped in her womb” when Elizabeth was six months pregnant (Luke 1:36, 41, 44).  He was a “son” from conception and a “babe” at six months.

Job cursed the night when it was said, “There is a man child conceived” (Job 3:3).  Later he asked concerning a servant, “Did not he that made me in the womb make him? And did not one fashion us in the womb?”  (Job 31:15).  This patriarch believed that life begins at conception and that life in the womb is indeed human.

Hosea warned Israel that the Assyrians would slaughter many of their people.  He specifically stated that their children would die in the siege–both born and unborn children.  “As for Ephraim, their glory shall fly away like a bird, from the birth, from the womb, and from the conception” (Hos. 9:11).  The name Ephraim means “fruitful” (Gen. 41:52), but Hosea warned, “Ephraim is smitten, their root is dried up, they shall bear no fruit: yea, though they bring forth, yet will I slay even the beloved fruit of the womb” (Hos. 9:16).  The children of the Ephraimites would be given to the murderer (Hos. 9:13).  The general point of this passage is that the children of these Israelites will die; the specific point is that this death will come upon them at different stages of life, going all the way back to conception.  Children would perish “from the birth,” that is, children already born would die.  They would perish “from the womb,” that is, babies of noticeable development would die.  They would perish “from the conception,” that is, children newly conceived would die.  The New King James Version reads, “No birth, no pregnancy, and no conception!”  Children would die at all three of these distinct stages of life, the beginning of which is conception!

After Rebekah had conceived, “the children struggled within her” (Gen. 25:22). The Lord told her, “Two nations are in thy womb, and two manner of people shall be separated from thy bowels” (Gen. 25:23).  These unborn infants were Jacob and Esau, and the Scriptures call them “children” and “people.”

God told Jeremiah, “Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations” (Jer. 1:5).  As far as personhood was concerned, God made no distinction between the unborn Jeremiah and the young man Jeremiah.

Psalm 139 is a praise of the wonderful knowledge of God.  David said there is no place he can be where God does not see him, including his first days in his mother’s womb.

For thou hast possessed my reins: thou hast covered me in my mother's womb. I will praise thee; for I am fearfully and wonderfully made: marvelous are thy works; and that my soul knoweth right well. My substance was not hid from thee, when I was made in secret, and curiously wrought in the lowest parts of the earth. Thine eyes did see my substance, yet being unperfect; and in thy book all my members were written, which in continuance were fashioned, when as yet there was none of them (vv. 13-16).

Our Future

God has spoken.  Life begins at conception, and taking that life is murder. Killing a baby in the womb is as wrong as killing a three-year-old child.  Had the majority of Justices on the 1973 Supreme Court recognized the fundamental concepts of the sanctity and meaning of human life, they would not have appealed to situation ethics.  If economic hardship or emotional distress to the mother justifies the taking of an unborn child’s life, then the same circumstances justify the killing of a three or four year old.  Justice Stewart saw this implication, and yet the Court cited these conditions as factors in their decision.

This use of situation ethics by the Supreme Court helped to establish a precedent that has led to further frightful consequences.  State laws had allowed abortion prior to 1973 if the mother’s physical well-being was in danger, but the Roe v. Wade decision allowed abortion on the basis of emotional danger to the mother.  Now the same argument is being made to justify euthanasia and physician-assisted suicide.  Human life at its beginning and toward its end is being taken away because that life causes emotional hardship!  How long will it be until those of us in the middle become victims of the same reasoning?  The legalization of abortion in 1973 resulted in partial-birth abortions; how can we say that killing a middle-aged person who is in emotional distress or who is causing others emotional distress is wrong?  What is to keep judges and lawmakers from using other equally arbitrary reasons to justify the taking of human life?  When these subjective criteria outweigh the foundational value of human life, there is no end to the killing that can occur with government approval.

When a society loses its core belief that man is made in God’s image, it is left without any real moral basis for distinguishing human life from animal life.  When respect for the value of human life disappears, men become like animals, and the taking of that life is seen as a means to some selfish end.  Yet this is what the 1973 Roe v. Wade decision did.  It degraded the value of human life and ushered in an era of unprecedented slaughter of innocent children.

Thousands of years of history confirm what the Bible warns: tampering with certain foundational moral principles will bring a nation to ruin.  Among these are the distinct roles of men and women, the purpose and responsibilities of marriage and the family, and the sanctity of human life.  Resting on the laurels of unrivaled wealth and power, our civilization is in serious danger because of its rebellion against these principles.  The same country that fought against Nazi Germany in World War II has forgotten the lessons it learned.  Now judges and educators in our land are showing the same disregard for human life that eventually led to the extermination of millions of Jews by the Nazi regime.  At the root of it all is the way men view human life. Victor Frankl, a survivor of Auschwitz, observed:

If we present man with a concept of man which is not true, we may well corrupt him.  When we present him as an automation of reflexes, as a mind machine, as a bundle of instincts, as a pawn of drive and reactions, as a mere product of heredity and environment, we feed the nihilism to which modern man is, in any case, prone.  I became acquainted with the last stage of corruption in my second concentration camp, Auschwitz.  The gas chambers of Auschwitz were the ultimate consequence of the theory that man is nothing but the product of heredity and environment–or, as the Nazis like to say, “of blood and soil.”  I am absolutely convinced that the gas chambers of Auschwitz, Treblinka, and Maidanek were ultimately prepared not in some ministry or other in Berlin, but rather at the desks and in lecture halls of nihilistic scientists and philosophers.8

The very mention of Auschwitz evokes images of horror today.  Yet millions more have died in American doctors’ offices since 1973 than those who died in Nazi concentration camps. And unless the will of God is brought into the picture, one has no real moral reason for saying that either atrocity is really an atrocity at all.

An anti-war sentiment has troubled this nation for years.  Where are these protesters when children are being slaughtered every day in our own country?  The truth is, more lives are taken every year in America by abortion than all the lives that have been lost in all the wars this nation has fought from its beginning.

Moral anarchy leads to ruin.  When “every man did that which was right in his own eyes” in ancient Israel (Judges 21:25), the nation fell hostage to foreign powers.  The same chaos will cause the collapse of a society today.  “The wicked shall be turned into hell, and all the nations that forget God” (Psalm 9:17).

If our nation is to continue, the good people of this land must rise up with righteous indignation in defense of those who are unable to defend themselves.


1 Will Durant, The Story of Civilization: Our Oriental Heritage (New York: Simon and Schuster, 1935), p. 275.

2 Ibid., p. 396.

3 Ibid., p. 489.

4 Will Durant, The Story of Civilization: Caesar and Christ (New York: Simon and Schuster, 1944), p. 364.

5 Marvin Olasky, Prodigal Press (Westchester, IL: Crossway Books, 1988), p. 20.

6 Ibid.

7 Joseph Fletcher, "Indicators of Humanhood: A tentative Profile of Man" in Contemporary Issues in Bioethics, Tom L. Beauchamp and LeRoy Walters, eds. (Belmont, CA: Wadsworth Publishing Co., 1982), p. 90.

8 Quoted by Ravi Zacharias in Can Man Live Without God? (Dallas, TX: Word Publishing, 1994), p. 25.



Kerry Duke is minister at the West End church of Christ in Livingston, TN

and Vice-President of Academic Affairs at

Tennessee Bible College in Cookeville

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