First We Defend Law, Then We Defend Life:
What the Pro-Life Movement Needs After Decades of Failure

by Kerry L. Morgan

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In 1973, the United States Supreme Court handed down its pro-abortion opinion and judgment in the landmark abortion case of Roe v. Wade. More than forty (40) years later, that opinion and judgment remains intact. Despite intense differences over whether the unborn child is a human being, potential life or simply tissue, pro-life, pro-choice and pro-abortion advocates nevertheless share the same fundamental view of the legal force and effect of Roe v. Wade. All agree and defend the view that Roe is the supreme law of the land and that it is a Constitutional decision. This one universal assumption is embraced by all factions as an undeniable truth.

Yet, it is this exact assumption itself which is wrong. More than that it is a curse. It is a curse because this assumption undermines and destroys the rule of law itself. It substitutes in place of law a great pretender the rule of lawless men the rule of Justices who will not bend their collective will to conform to the pre-existing rule of law. That is the sobering truth none will hear.

Of course, the disciples of choice and abortion don’t see it this way. They look upon Roe as a progressive decision, as the advancement of law itself to the next level of personal freedom. Nor do pro-life followers see the collapse of the rule of law as the central problem. They see the Roe decision as essentially a problem of judicial selection who should sit on the Supreme Court, rather than as a large-scale institutional usurpation of the Constitution or law itself.

It is this singular failure and refusal, however, to understand and acknowledge that Roe is not the law of the land, which lies at the heart of over forty years of failure to protect unborn life. The legal rule and only legal rule capable of countering the judges’ war against the rule of law in the abortion context, is that Roe is not the supreme law of the land. Roe is not the supreme law because it is not law at all. That is correct, “Roe is not law.”

But isn’t Roe about abortion? What then is all this discussion about law? Roe is about abortion – it is about the law of abortion and the power of the state government to protect unborn life from private destruction. The problem is that well-intentioned pro-life lawyers, legislators and laymen have principally thought about the substance of Roe as a challenge whereby they must establish in subsequent legislation and litigation, that human life be conceived of in medical terms in order to warrant legal protection. While this is one aspect of the case, it is by no means the best means to protect unborn life. The best means to protect unborn life is to first understand and accept the legal proposition that the defense of law is a necessary predicate to the eventual defense of life. In other words, we must reclaim the rule of law and defend it from lawless judges, before we can hope to defend human life.

We have failed as a nation to understand that, fundamentally, Roe is more destructive to the rule of law itself, than even to the right to life. Unless and until the defense of law and the unalienable right to life arising therefrom are first made the centerpiece of the pro-life movement’s legislative and litigation strategy, we will never secure the unalienable right to human life under law.

Nor should we. For those religious lawyers or legislators who approach pro-life litigation and legislation from the point of view that God rejects abortion and, therefore, the state should punish abortion criminally, I ask why God should sign on to your agenda when you don’t honor His? God will not be mocked by lawyers or judges claiming God is on their side while disparaging His laws by their “laws.” Have you not read what King David recognized about God’s view of the subject in Psalm 94?

      Can unjust leaders claim that God is on their side —
        leaders who permit injustice by their laws?
      They attack the righteous
        and condemn the innocent to death.
      But the Lord is my fortress;
        my God is a mighty rock where I can hide.
      God will make the sins of evil people fall back upon them.
        He will destroy them for their sins.
      The Lord our God will destroy them.

But perhaps our religious leaders and litigators are wiser than David. Their mass mailings tell me so. Moreover, when God says that those who take an oath ought to uphold it, does He mean it or is that just dicta? Public officials, lawyers and judges all take an oath to uphold the Constitution, not to rewrite it. Do you think that God will overlook violation of such oaths for the sake of your good pro-life motive? that He will sustain your love of life upon the foundation of your contempt for law? It’s time for sober reconsideration.1

For those legislators, lawyers or judges who don’t care about God or religion, who are pleasant though practical atheists, or simply cosmetic conservatives, and cannot abide any rule of law animated by “religious” concepts, then all you have is your own “law” itself unto which you can appeal. You can’t very well call on God for justice now can you? So to such as these you must at least call on the rule of law. Yet, the outcome is nevertheless the same. Protection of life cannot arise without the a priori defense of the rule of law. The key to that defense is to recognize that the Constitution’s text does not regard the Supreme Court’s opinions as law. But legal pleading assuming supreme authority in the Court destroys law itself and enslaves us more and more every term.2

So whether the proposition that “God is the Lawgiver”or that the “Law is Supreme” stirs your soul to protect innocent unborn life, the result is the same if you embrace the notion that Roe is law or that Roe is the supreme law of the land. As stated earlier, the best means to protect unborn life is to first understand and accept the legal proposition that the defense of law is the necessary predicate to the defense of life. We must defend the rule of law before we can hope to defend human life under law. The best we have been able to muster thus far, however, is the defense of human life under the rule of lawless men. Failure is inevitable.

This essay provides the grounding and argument in support of the proposition that we must defend the rule of law before we can hope to defend human life under law. It identifies the thinking of political and legal charlatans who want to defend lawless judges and have convinced themselves and you that they can protect unborn life though denying the rule of law.

Chapter One tells you why supreme court opinions are only evidence of law, not law itself and not the supreme law of the land. It discusses why Roe is not the supreme law of the land because it is not law at all. The chapter also discusses the key historical documents that the charlatans all declare are irrelevant. More importantly, the power of “judicial review” is contrasted with its cheap authoritarian counterpart “judicial supremacy” wherein it is shown that the power to review cases is not the power to establish law. For the Constitutional scholar, an extensive review of the case law root of judicial supremacy in Cooper v. Aaron is discussed along side with more balanced cases such as United States v. Peters and Sterling v. Constantin.

Chapter Two turns the corner and looks at the diverse Constitutional remedies we enjoy and shows how they are destroyed by nationalistic judicial decrees such as the Court adopted in Roe. Moreover, the different legal and political remedies available to strike back at the Court for its illegal and treasonous usurpation of law are also discussed in detail. For example, the lawless judgments of the Court must first be understood, viewed and judged as lawless acts. Lawless judgments such as Roe do not deserve to be enforced by state or federal executive officials including state Governors and the President. Nor do they need to be honored by state supreme courts which have jurisdiction to determine the Constitutionality of state abortion laws.

A model judicial opinion setting the record straight is also included as an aid to jurists and lawyers who want to move in the direction discussed in the booklet, but have difficulty conceptualizing how it would actually work in practice.

Finally, Chapter Three turns to the political and electoral side of Roe v. Wade. Here are discussed the failed political “remedies” for Roe that both honorable and shameless politicians have pawned off on the American electorate. Do nothing “I am Pro-life, vote for me” candidates get what they have coming a new job. These hucksters and their plans that deserved to fail are dissected. You know the siren songs the Republicans have advanced over the years: “A pro-life Republican President will save us”, “A Pro-life Republican Congress will save us!”, and “A Pro-life Court will save us!” And what about the Democrats? Their slogans are less creative and boringly well worn: “I am personally pro-life, but I will abide by the court’s decision.” As for the Libertarians, they have got to figure out which of their principles are going to control personal autonomy or a limited federal government.

In conclusion, the pieces are all assembled. All that remains is for those that accept the premise that Roe is not law, is to follow through with that conviction in whatever station they enjoy. This means stop listening to the cheerleaders for judicial supremacy in the media, courts, political parties, churches and mandatory attendance associations such as schools and state bar associations. It means going on the offensive with your public officials and promising to vote for other candidates. Yes, voting for the “evil” candidate who doesn’t lie to you about his love of judicial power, as opposed to voting for the one in your party who says he is pro-life but can’t bring himself to adopt this view that the rule of law is worth defending. He thinks he has time to bide and you should send him back to office to bide his time. You’re a stooge if you vote for him.

What nation can escape the consequence of the constant shedding of innocent blood? You think God will not take notice? King Manasseh of that now extinct country Judah thought that way too. He filled the nation with innocent blood, but God was not willing to forgive that offense.3 Nor will he forgive ours. Even if we turn back today, we will still have to pay the price for past condemnation of “the innocent to death.”4 Too much blood has been shed to not notice.

Next:   Supreme Court Opinions Are Only Evidence of Law, Not Law Itself


*   Copyright © 2004 Kerry L. Morgan. Used with permission.
     1.    Ecclesiastes 5:6 — “Do not let your mouth lead you into sin. And do not protest to the temple messenger, ‘My vow was a mistake.’ Why should God be angry at what you say and destroy the work of your hands?”
     2.    Thirty years after Roe the Supreme Court used the same pseudo-constitutional deceit to “strike down” the anti-sodomy laws of thirteen (13) states on the basis that the Constitution guaranteed such a right. See Lawrence v. Texas, No. 02-102, June 26, 2003. This is more fruit of our failure to defend the rule of law.
     3.    2 Kings 24:1-4.
     4.    Psalm 94:20-23.