How the Same-Sex Marriage Case Might Affect the Texas Abortion Law

July 13, 2015

Many people have heralded the Supreme Court’s recent same-sex marriage decision as an historic win for equality and freedom. While that claim may be popular in the cultural conversation, the decision itself is a radical departure from the Supreme Court’s usual legal analysis. And the underlying reasoning may affect much more than marriage. This ruling may guide the Court to strike down Texas’s new abortion restrictions, effectively keeping open dozens of abortion clinics that would have otherwise been shut down.

How would this happen? On June 29, 2015, the Supreme Court ordered Texas to halt implementation of its new abortion laws until the Supreme Court could hear the case during the next term. This means that the Court will likely issue a ruling on the constitutionality of the Texas law around this time next year. And the reasoning used in the same-sex marriage opinion could affect the future abortion decision.

A right to abortion, like the right to same-sex marriage, is not explicitly stated in the Constitution. That’s why Roe v. Wade and the same-sex marriage decision were both so controversial: the Supreme Court found these rights imbedded within the Constitution’s “liberty” protections. And with the Court’s radical departure in the same-sex marriage case, the standard for finding new rights within the Constitution has shifted in favor of ambiguous notions like “dignity” and “autonomy.” This could present unique challenges for the pro-life movement.

What about the same-sex marriage case poses a threat to the Texas abortion law? First, both cases are analyzed under the 14th Amendment’s “Due Process Clause,” which prohibits states from depriving any person of “life, liberty, or property, without due process of law.” Normally, those protected liberties are spelled out in the Bill of Rights. In the latter half of the 20th Century, however, the Court began to recognize rights that extend to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and belief.” According to Justice Kennedy, it is the Supreme Court’s duty to identify and protect those rights. It requires Justices, he said, “to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” The Constitution, further, protects “the right of all persons to enjoy liberty as [they] learn from its meaning.” As time marches on, new rights and liberties are addressed as the Court gains “new insight” into the nature of liberty. Such is the framework for the Supreme Court’s current analysis of what “liberty” is protected under the Constitution. This is troubling for many reasons, not least of which is that the concept of liberty is left to the unelected Justices, using their “new insight” to define what levels of dignity and autonomy are protected by the Constitution during any given generation.

But what does this mean for Texas’s abortion law? It depends. If the Court chooses to adopt the “dignity” approach, it could have disastrous effects for many unborn children. Justice Kennedy is a pioneer of the dignity analysis, and personal reproductive choices are often at the heart of many of his examples of autonomy and dignity protected by the Constitution. And because Texas’s law places certain restrictions on a woman’s ability to exercise that “autonomy,” the law will be left up to the “reasoned judgment” of a majority of the Court. And because the Court has to define the rights associated with a person’s dignity and autonomy, it must also set the boundaries of those rights. If the Court engages in the same kind of ad hoc analysis of progressive notions of dignity and personal autonomy, it may well strike down the Texas law as impermissibly intrusive on a woman’s personal autonomy.

The prevailing legal standard for abortion cases is that abortion restrictions may not “unduly burden” a woman’s “right” to privacy with regard to her reproductive choices. This is dangerous territory given the recent Supreme Court decision on same-sex marriage. One of the reasons that Justice Kennedy cited for striking down same-sex marriage bans was that such bans impose a “stigma” upon the dignity of same-sex couples. In relation to abortion culture, stigma is a loaded term. Campaigns seeking to remove the stigma from all abortion practices are commonplace in the media. If the Court latches on to this notion of stigma surrounding abortion, it may find that the Texas law’s restrictions add impermissible “stigma” to a woman’s autonomous choices.

Further, the leading Supreme Court abortion case (Planned Parenthood v. Casey) provides only mixed guidance for the current Court. Some of the legal reasoning in that opinion anticipates the reasoning in the same-sex marriage case. Take this precept, for example: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This was Justice Sandra Day O’Connor’s attempt to define liberty in relation to a woman’s ability to have an abortion. In fact, the Court’s role of exercising its “reasoned judgment” first appeared in Planned Parenthood v. Casey. So if the Court uses the reasoning in the same-sex marriage case to extend Planned Parenthood’s definition of liberty, the Texas abortion restrictions may be in trouble.

Yet the other side of the Planned Parenthood coin is that it protects a woman’s ability to have an abortion only up to the point of viability. If the Court opts to take a more scientific approach to its reasoning, then the Texas law may survive. This is because advances in pre-natal medical care have made it possible for increasingly younger babies to survive outside of the womb. It is not unheard of for children younger than 24-weeks gestation to survive premature birth. And the principle that life begins at conception is increasingly gaining consensus in the scientific community. All of these factors may counsel the Court to uphold the Texas law, as it more accurately reflects scientific data on pre-natal medicine.

Until there is an actual decision, we won’t know how the Supreme Court will rule on the Texas abortion law (and, in fact, the Court must still decide even to take the case). But the amorphous, vaguely-philosophical precedent set by the same-sex marriage decision does not bode well for the future of self-government and societal restraint. Nor does it bode well for unborn children in Texas. If the Supreme Court embarks on a path of self-reflection and reasoned judgment—instead of Constitutional analysis—we may find the lives of thousands of unborn children hanging in the hands of one Court.

The good news, however, is that we worship a sovereign God who ordains even that the grass grows and withers away (Matt. 6:30). The universe is upheld each second by the word of his power (Heb. 1:3). Nothing happens outside of his power and will. Yet our actions—as individuals and as a nation—have consequences. We should pray for our nation’s highest court. Pray that sound reason would prevail, and that we as a country would recover the rule of law, which provides the most protections for life, liberty, and property. And pray for all of our authorities, that we may be able to lead peaceful and quiet lives of obedience to God (1 Tim. 2:1–4).

In the end, we as Christians know that liberty and dignity are not something that we define for ourselves. We all—unborn babies included—carry inherent dignity as image bearers of the living God. And true liberty only comes when we have been freed from slavery to sin through Jesus Christ. Therefore, the most urgent prayer for legal and cultural renewal is that the hearts of men would be turned to Jesus Christ for the forgiveness of sins and breath of new life. Apart from this, we will not experience the lasting dignity and liberty that we seek.

Kyle Bryant

Mr. Kyle Bryant serves as the Campus Director for TCS Heights. Although raised in the public school system, Kyle is passionate about seeing a revival of classical education in our communities and churches. After graduating from Kingwood High School, he attended Texas A&M University, where he graduated with a B.S. … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24