WHAT COULD HAVE BEEN . . .

Just one year shy of a half-century ago, two momentous pronouncements were made with long-lasting implications for many lives. Each was handed down by a highly respected and long-established institution—in the life of the nation, in one case, and of a Protestant denomination, in the other. Each was welcomed by some of those affected, condemned by others. Both have been the subject of heated debate for decades. Coincidentally, in June, 2022, both of these rulings were up for discussion, debate, and formal review by the relevant bodies.

Rather than pick apart the two new pronouncements, as many have done, I invite readers to imagine a world where things turned out differently. Such a world is not very distant from the world we live in.  If a few individuals in each body had assessed the relevant reasons and conditions and come to a different conclusion, we might now be on the path toward a dramatically different future. 

Imagine, then, a world in which two news stories along the following lines appeared in June. 

GRAND RAPIDS, MICHIGAN, June 16, 2022:  Today was the second of two days of intense discussion of the Human Sexuality Report (HSR) that had been commissioned by the Synod of the Christian Reformed Church in North America (CRCNA) in 2016. After several COVID-related delays, the report was on the agenda of Synod 2022 when it met this week at Calvin University.

The discussion on the floor of Synod was wide-ranging and respectful, and the recommendations of the study committee and of Synod’s advisory committee were considered very seriously. The delegates recalled, as did the report, the directives of Synod 1973 to welcome church members of same-sex orientation but to demand life-long abstinence from any kind of sexual intimacy.  Some observed that the church had listened to only half of that report, firmly upholding the ban on same-sex activity but making little effort to reach out to LGBTQ members. Both supporters and opponents of the HSR spoke of the pain and isolation experienced by gay friends and family members and lamented that many have left the CRCNA to seek a more welcoming church home or have left the church altogether. 

Some delegates argued vehemently in support of the report’s reaffirmation of the the dual emphasis of the 1973 report—we should welcome gay members but condemn same-sex activity, partnership or marriage. This, they said, is the church’s only option, however sharply it may clash with contemporary cultural values. Others argued that, given all that we have learned in fifty years about the biology and psychology of sex and gender as dimensions of our status as God’s image-bearers, we should acknowledge that sexuality finds many forms of authentic expression beyond traditional heterosexual marriage. Scripture forbids all same-sex activity, some argued. Not so fast, others countered: Biblical writers say a lot about God’s grace and love for all people, and about hospitality, but nothing about contemporary same-sex relationship patterns. And all this happened without shouting or name-calling, as befits a gathering of pastors and council members.  Disagreements did not stop them from listening to each other, or from coming together in prayer.[1]

At the end of the day on June 15, Synod voted by a large margin to accept the HSR to help the church face changing societal realities while holding fast to the Word.  One section of the report remained to be considered: the committee asked Synod not just to approve the HSR but also to declare that prohibition of same-sex relationships is a matter of confessional integrity. Synod should declare, said the HSR, that pastors, office-holders, and church members who hold a different view are guilty of heresy and must be subject to discipline. The delegates decided to put these matters off for the next day agenda and adjourned for dinner.  Between the meeting hall and the dining hall they were greeted by a crowd of 200 protesters, holding up signs and singing songs, calling for rejection of the report.

On June 16, the discussion took an unexpected turn when an elder from one of the classes that had been especially vehement in support of the report voiced his misgivings. “I appreciate the careful work of the committee,” he said, “but I just can’t see that we should set this report apart from every other action of Synod and elevate it to confessional status. Does Synod even have the authority to do that?  I don’t think so.” Delegates debated this question back and forth.

Much discussion turned on the assertion in the report that “unchastity,” as it is used in the Heidelberg Catechism, refers not only to fornication and adultery but to same-sex intimacy of any kind, within or outside marriage. “Why didn’t the authors of the Catechism mention internet porn or sexy text messages or using drones to spy on your neighbors?” asked one pastor delegate rhetorically. “Because they didn’t exist. The same goes for legally recognized, faithful, loving same-sex marriage. This appeal to the Catechism is just a ploy to shut down discussion of some hard questions–questions on which my congregation and others are making slow but steady progress. We need to keep listening to each other, not close our ears.”

When the declaration of confessional status came up for a vote, the outcome surprised nearly everyone: it was voted down by nearly as large a margin as that by which the previous day’s approval of the report had passed. And then came something even more unexpected: a delegate moved that the previous day’s decision be brought back to the floor for reconsideration. The president and parliamentarian hesitated for a moment but then ruled that, because the delegate had voted with the majority, his request was legitimate. They allotted just one hour of discussion, expecting that the motion would fail.

But it did not fail. One after another, delegates who had voted for the report requested the mike. “I talked with my kids last night,” said one, “and they told me the gay kids in their youth group are going to be devastated.” Another commented, “I went back over the report, and this time I noticed how partial and slanted its discussion of biology and psychology is. I guess I should have read that part more carefully before I voted yesterday.” 

Many echoed the words of a pastor delegate from a classis usually regarded as very conservative: “I agree with the conclusions of the report, even if not all their arguments are solid. But we had a very open and very fruitful discussion yesterday about whether the church should be more open to members who are in same-sex relationships and marriages. I am not ready to say yes to that. But I just don’t think all the important questions have been answered. That doesn’t fit my vision of a Reformed church that is always reforming. Let’s continue the dialogue! I may never change my mind, but I want to hear more discussion like what we heard yesterday. Brothers and sisters, let’s put this report up on a shelf where anybody can read it but nobody takes it as the church’s official position.”

When the vote was taken, nearly two-thirds of the delegates voted to rescind the previous day’s decision. There was still one more recommendation from the HSR committee on the floor–disciplining a congregation that has ordained a married lesbian deacon—and it was voted down by an even larger margin. “We need to stop pretending we have all the answers,” said one delegate, also a deacon. “Let the churches seek the Spirit’s guidance in their specific circumstances. There won’t be any gay council members in my congregation anytime soon, I’m sure of that. But if God has given a woman who is married to a woman special gifts that enable her to serve the Kingdom in another congregation, I don’t see why we should try to throw her out.”

WASHINGTON, D.C., June 24, 2022:  The long-expected ruling of the U. S. Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization was handed down today.  To the surprise of nearly all Court observers, it departed dramatically from Justice Samuel Alito’s draft opinion leaked to news media earlier. Contrary to expectations, the Court upheld the 1973 decision in Roe v. Wade and affirmed that access to abortion, subject to reasonable limitations such as stage of pregnancy, is a well-founded right of citizens that the courts may not rescind.

Interviews with clerks for several justices confirm that their about-face resulted from both public commentary and private discussions in the justices’ families and circles of friends in response to the draft. They talked about the importance of their promises in Senate hearings to respect “settled law” even in controversial contexts. And they anticipated that a reversal of the 1973 decision would create a chaotic patchwork of state laws for women bearing unwanted pregnancies. “Do we really want to dial back the reproductive rights of women in Wisconsin to the provisions of an 1848 anti-abortion law?” a clerk heard one justice say to another.

Clerks of the Supreme Court have been wary about disclosing its inner workings, all the more so since the recent leak. We may never know just what reflections and reconsiderations prompted Justice Alito to ask Chief Justice John Roberts to assign another colleague to draft a new opinion—one that would be scrupulously kept from the public while under review. Associate Justice Sonia Sotomayor was a surprising choice for this task, given how sharply she has dissented from her more conservative colleagues in recent cases. But the opinion that she drafted was sufficiently nuanced, and so fair in setting out positions different from hers, that it won the support of six other members of the court.  The seven-to-two majority, with only Justices Clarence Thomas and Amy Coney Barrett dissenting, shocked court-watchers across the country.

Roe v. Wade, the majority opinion acknowledges, was a messy compromise whose grounding in previous rulings, and in the Constitution, has long been subject to controversy. The right to abortion, wrote the Court in 1973, is implicit in the guarantee of due process contained in the Fourteenth Amendment, and it is further grounded in an implicit right to privacy that the Court has inferred in other contexts. These arguments, many observers found, stretched these two rationales too far and applied them too loosely. In giving credence to these criticisms, the new opinion closely follows Justice Alito’s now-discarded draft. 

And yet, whatever its shortcomings as a model of constitutional law, Roe v. Wade  is now the “settled law” of the United States, Sotomayor’s majority opinion states.  This is not a liberal or conservative position; it is simply an expression of the courts’ duty, in our tripartite federal system, to honor precedent and uphold the law. Laws are not perfect, nor are people. But people have rights that must be respected, and laws have authority that cannot be lightly cast aside.

In nearly half a century of application and interpretation, state legislatures have sought to balance the reproductive rights of women with the respect and protection that are due to a future person. Early in pregnancy, legislatures and courts have agreed, pregnancy termination is a matter for the woman and those closest to her to decide. The state may not make the decision for her. Later in pregnancy the woman’s rights may need to yield to those of the child nearing birth, and abortion may be prohibited except in some emergencies, such as imminent risk to the woman’s life. In these ways the states have put the principles of Roe v. Wade into practice.

These permissions and restrictions, Justice Sotomayor and her colleagues add, have not been accepted universally or without controversy. Recently some state legislatures including Mississippi’s have sought to outlaw all or nearly all abortions. Some have even tried, like Texas’s legislature, to evade the provisions of Roe v. Wade by paying bounties to private citizens who inform on women or their health care providers for exercising their right to an abortion. The state governments behind these new laws have now asked the Court to clear the way for across-the-board bans on abortion, at any stage and for any reason, by revoking the 1973 decision. 

Before we decide whether to do so, the majority opinion continues, we need to consider the effect on the lives of women and families of anti-abortion laws.  Advocates claim that we owe it to innumerable children–nearly 900,000 each year in the United States—to prevent their lives from being snuffed out in utero if current practices continue.  

When we examine global patterns of abortion access and the rate of abortions performed, however, we encounter a sobering reality check, the majority points out.  A comprehensive review of abortion around the globe reached this surprising conclusion: 

“Abortion rates are highest in countries that legally restrict access to terminations, but lowest in high-income countries where abortion and contraception are accessible.”[2]

Country-by-country comparisons reinforce this picture. In the US, the rate of abortions per 1,000 women aged 15-44 is 20.8 percent. In the Netherlands, where abortion has been available on request since 1984, the rate is just 10.4 percent, half of the US rate. Belgium and South Africa also grant women a broad right to abortion, and their rates are 7.4 percent and 4.5 percent, respectively. Blanket abortion bans are correlated with some of the highest abortion rates, it appears, but this is difficult to quantify because many of these countries keep the relevant data a closely-guarded state secret.        

Laws against abortion, it is clear, do not translate reliably into fewer abortions.  But they do affect where and how abortions are obtained, Justice Sotomayor adds, citing this finding:

“According to data from the World Health Organization, the legality of abortion across the world actually has little to no effect on abortion rates throughout the world. Legal or not, abortions can, will, and do take place. The legality of abortion, however, does affect how safe those abortions are. Women who do not have access to a legal abortion frequently turn to illegal or “homemade” abortion options, which are typically much riskier, more dangerous, and less effective than legal options conducted by professional doctors in a clinical setting would be.”[3]

It would be highly improper for us as the highest court of the land, the majority opinion concludes, to take either a pro-life or a pro-choice position, as the opposing sides label themselves. There are perplexing moral questions on all sides of the abortion debate—questions over the responsibility of both male and female partners when an unwanted pregnancy occurs, over when and whether a fetus is a person or has certain rights, and over the responsibility of our communities to offer adequate health care and supportive services for mothers and children in need. The members of this court, and of our legislatures and citizenry, hold widely diverging views on these questions.[4]

But these questions are not before the Court. Before us instead are three questions.  First, did the Court set out clear lines in 1973 within which reproductive rights of women must be respected, and outside which restrictions may legitimately be imposed? Second, has the Court followed these guidelines in its past opinions and invoked them as precedent in its rulings since 1973? And third, is this Court now authorized, in its role as interpreter of the Constitution, to set these precedents aside and delegate the protection of reproductive rights to fifty state legislatures?

When our draft opinion was circulated, a majority of the members of this court were ready to answer No, No, and Yes to these questions.  But on further reflection, we have come to a position, not of full agreement on all points of law, but of mutual respect and greater humility. We now answer Yes, Yes, and No. Roe v. Wade therefore remains the law of the land. 

IN CASE YOU TUNED IN LATE:  These are fictional, not real, news accounts.  The Synod of the CRCNA, and the Supreme Court of the United States, came to very different conclusions than those I have imagined here. More’s the pity. But we can dream of a different future—a world in which women’s rights and their welfare are a top national priority, a church in which all are made welcome. Today’s dream may someday, by God’s grace, be a reality. 

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[1] Respectful and thoughtful debate really did occur—I’m not making that up.  But unfortunately amity had its limits.  Some delegates boycotted a prayer service because ordained women would be among the worship leaders.

[2] https://www.news-medical.net/news/20200724/Study-finds-highest-abortion-rates-in-countries-with-legal-restrictions.aspx (citing a study by the Guttmacher Institute)

[3] https://worldpopulationreview.com/country-rankings/countries-where-abortion-is-illegal

[4] This is an imaginary opinion, so why not:  Justice Sotomayor here cites with appreciation Wes Granberg-Michaelson’s probing reflection on these issues on the Reformed Journal site in early May.