The year 2020 has been an extraordinary year.  For me as a Christian leader, two themes have dominated the complicated developments of 2020:  Religious liberty issues inherent in a number of Supreme Court decisions and the impact of the COVID-19 pandemic.

• First, a somewhat surprising Supreme Court decision: The new session of the United States Supreme Court began on 1 October 2020 with eight justices instead of nine, due to the death of Justice Ruth Bader Ginsburg.  On Monday, 5 October, the Supreme Court declined to take up the appeal of Kim Davis, a former Rowan County clerk in the Commonwealth of Kentucky. After the Obergefell decision in 2015, which legalized same-sex marriage in all fifty states, Davis refused to issue marriage licenses for same-sex couples. This engendered numerous legal issues and court battles. Davis had been fighting a lawsuit against her which she appealed to the United States Supreme Court. That battle ended on Monday when the Court declined her appeal.  While the whole Court decided not to take the case, Justices Samuel Alito and Clarence Thomas used this opportunity to sound an alarm to the religious liberty question.  Throughout the last several months in my weekly Issues in Perspective commentaries, I have summarized the positive and negative aspects of various Court religious liberty decisions during the 2019-2020 Court term.  It has been a complicated set of decisions.   But the Alito-Thomas alarm is worth serious consideration.  Albert Mohler summarizes their concern:  “On the one hand, they agreed not to take up Davis’s case because the legal matters were not ‘clean.’  On the other hand, the justices argued that the case of Kim Davis represented the foreseen and predictable consequences of the Obergefell decision. The unilateral move taken by the Court in 2015 set up a massive collision between the newly invented sexual liberties associated with the LGBTQ movement and religious freedom.”

In a statement written by Justice Thomas but joined by Justice Alito, the two justices argued that the Davis case was, “a stark reminder,” that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of the decision and its effect on other anti-discrimination laws.”  The Court, as the justices contended, chose to endorse, “a novel Constitutional right,” over the religious liberty interests explicitly enumerated in the First Amendment. The 2015 decision created a problem only the Court can resolve: “Until then, Obergefell will continue to have ruinous consequences for religious liberty.”  That is incredibly strong language from two justices on the nation’s highest court. They knew in 2015 as they know now that Obergefell posed a serious threat to religious liberty issues.  Mohler:  “But Justices Alito and Thomas have now, with piercing clarity, levied a full indictment against Obergefell. Make no mistake, these two justices were drawing a line in the sand. In the Constitution, you will find a clear protection of religious liberty—you will not, however, locate a right to same-sex marriage. Yet, in 2015, the Court invented a set of rights nowhere enumerated in our nation’s governing document that has fostered an unavoidable collision between the LGBTQ agenda and religious freedom . . . This collision will be on full display this Supreme Court term, especially in the case involving a Catholic charity in Philadelphia that has been a leader in foster care and adoption. Given Catholic teachings, the charity will not consider same-sex couple applicants for their foster care and adoptive services. According to the city of Philadelphia, the Catholic organization must choose between continuing their ministry or giving up their convictions concerning same-sex couples.  This is a massive case with enormous consequences—and it is, predictably, yet another consequence of Obergefell.”

• Second, let’s consider the impact COVID-19 has had on the abortion issue.  Abortion access has been a critically important and successful strategy of the pro-life movement.  Indeed, in 90% of American counties there is currently no abortion clinic and in six states there is only one clinic left in the whole state.  In addition, up to 21 states have passed laws banning or limiting abortion in ways many deem unconstitutional (based on Roe v. Wade).  Many of these laws are being challenged in various courts throughout the land.  However, the COVID-19 pandemic has fostered the growth and appeal of “medical abortions,” which require drugs rather than surgery.  Medical abortions normally occur in clinics, but during the COVID-19 pandemic temporary measures could become permanent in some parts of the world, including the United States.  A reminder:  Two medicines are needed for medical abortions—mifepristone (which blocks the effects of the pregnancy-enabling hormone progesterone) and misoprostol (which induces contractions).  These drugs are taken two days apart and the pregnancy normally ends four to six hours after the second drug is administered.

How has the pandemic changed medical abortions?  For example, in Great Britain the health secretary in March approved a rule change  which, in effect, gave a woman’s home the same status as an abortion clinic.  The Economist reports:  “Instead of visiting a doctor, women could arrange an abortion by phone and have the pills delivered by post.”  Ireland has introduced something similar, as has France.  In July a federal judge in the US lifted regulations that required women to collect abortion pills from a surgery clinic  or hospital, ruling that this was a “substantial obstacle in the path of women” during a pandemic.  [The Trump administration has asked the Supreme Court to overturn this ruling.]

The Food and Drug Administration in America has approved the two drugs mentioned above to abort pregnancies of less than ten weeks but it has also imposed more stringent regulations than those that apply to most drugs in America.  Therefore, in America medical abortions account for about 40% of all abortions, while in most northern European countries, medical abortions account for more than two-thirds of all abortions.  Two organizations within the US are providing ready access to the drugs needed for medical abortions to women to use in their homes—Aid Access and TelAbortion, which operates in 13 states.  Aid Access is a non-profit that prescribes and then mails the abortion pills, mostly from overseas, to women in America. Many of these women live in states that have restricted access to abortions.  [The FDA is trying to stop Aid Access from doing this.]  Understandably, pro-life advocates find it difficult to campaign against mail-order abortions compared to abortions done in clinics: “A woman taking tablets at home inspires less incendiary rhetoric than a doctor in scrubs performing a dilation and evacuation.”  It seems reasonable to conclude that medical abortions will significantly increase and that the COVID-19 pandemic will enhance this trend.

One final comment on abortion in 2020:  Tricia Bruce of the Center for the Study of Religions and Society at the University of Notre Dame led an important sociological study on “What Americans Really Think About Abortions.”  The uniqueness of this study is that it was based on interviews among ordinary Americans, not activists on either side of the abortion question.  Bruce summarizes:  “Through all this talk, there was an underlying sentiment that no one really wants an abortion.  ‘It’s a sad thing,’ a ‘hard thing,’ ‘a personal thing.’  This was true among the quarter of our female interviewees who’d had abortions themselves, some of whom wished in retrospect that they had chosen differently . . . Acknowledging that abortion is a practice that Americans want to reduce does not result in a single position on its legality . . . Though Americans’ views on abortion are very personal, more gray than black and white, and steeped in considerations of the ‘good life,’ such nuances seldom find a place in public discourse on the issue . . . Listening in-depth makes sense of the paradox that most Americans don’t “want” abortion but nonetheless support legal access to it.  One could call them confused, conflicted or even incoherent about the issue, but their views differ notably from the positions of many activists, politicians and religious leaders, who insist on hard-line ‘pro-choice’ or ‘pro-life’ labels.  Most ordinary Americans engage in difficult moral juggling about abortion, whether or not they slow down to tell others about it.”

What should we conclude about the valuable insights gained from Bruce and her colleagues?  Importantly, their study shows once again how personal the decision on abortion really is.  It is a decision governed by multiple variables, but there is always the uncertainty, the guilt, and the questioning that follow the decision.  For me as a Christian, the confusion, the ambiguity and the “paradox” (to use Bruce’s words) which this study surfaces indicates the absence of a clear, absolute ethical foundation.  Decision-making on ethical issues distills down to what works “best for me,” regardless of any other consideration.  It is difficult and, in our Postmodern, Post-Christian era, it is provocative; but the only foundation on which to build an ethical value system that governs individual behavior is the Word of God.  God’s Word establishes the absolute value of human life at all stages along the developmental path—from conception on into eternity.

See Albert Mohler, “Ruinous Consequences for Religious Liberty” — A Prophetic Warning from Two Supreme Court Justices,” www.albertmohler.com (6 October 2020); Joan C. Williams in the New York Times (4 October 2020); The Economist (19 September 2020), pp. 16, 31; and Tricia C. Bruce in the Wall Street Journal  (26-27 September 2020).