By John Michener

Pro-life media outlets are abuzz over Mississippi’s high-profile abortion case (No. 19-1392) pending before the Supreme Court of the United States (SCOTUS). Mississippi is correctly arguing that there is no right to abortion in the Constitution. Therefore, per the rights of the States that are explicitly protected in the Tenth Amendment, abortion criminality belongs under the purview of the States. Mississippi puts it this way: “Because nothing in text, structure, history, or tradition makes abortion a fundamental right or denies States the power to restrict it, that ‘power[ ]’ is ‘reserved to the States.’” Right on, Mississippi!

On 29 July 2021 a dozen governors, including Oklahoma Governor Kevin Stitt, filed an amicus brief in support of Mississippi’s petition, arguing: “The Fourteenth Amendment has nothing to do with abortion. Therefore, regulating abortion is constitutionally committed to the States (as no other constitutional provision speaks to abortion either).” Well said, governors!

That these governors are on the right side of the argument is encouraging, but it also highlights their cognitive dissonance. On the one hand they make a proper argument that they have the moral and legal right to abolish abortion, but on the other hand they refuse to do it. Their argument is sound, so there is no reason to wait for the bully (SCOTUS) who stole our State’s right to give it back to us. Governors have every right to take it back immediately, which will serve to encourage SCOTUS to officially self-correct.

Murder by abortion is not some arcane bureaucratic rule or complex interstate trade agreement that can wait for SCOTUS to finally figure it out and tell us how to proceed. Rather, we are dealing with a clear-cut, immediate matter of life and death. Governors should not wait for permission from SCOTUS to abolish innocent bloodshed in their sovereign States. Immediate action is the only reasonable and righteous response.

Enforcing state sovereignty is a proven strategy. Historically, several States defied federal court opinion to prevent man-stealing and set slaves free. Currently, many States, including Oklahoma, are defying unconstitutional federal court opinions to allow their citizens to use marijuana. But when executives refuse to stand up to judicial bullies, the bullies keep bullying. Worse, in the case of abortion, they keep getting away with murder.

For example, on 4 October 2021 Oklahoma County District Judge Cindy Truong stayed Oklahoma’s new “pro-life” Heartbeat Bill and Licensing Bill which GOP politicians had been celebrating since they were signed on 26 April 2021. The Licensing Bill would have classified the performance of abortion as “unprofessional conduct.”

Abolitionists already recognized the Heartbeat Bill would have been unjust, unconstitutional, and unenforceable. Given the Heartbeat Bill’s previous failure in fourteen States since 2013, its promotion and passage by GOP “pro-lifers” in the Oklahoma Legislature was nothing more than political grandstanding. A detailed analysis of the problems with the Heartbeat and Licensing bills was presented at OklahomansUnitedforLife.org/a-round-square.

These stays should come as no surprise. Passage of incremental regulations which judges then stay has been normal operating procedure since 1992 when SCOTUS issued its Planned Parenthood v. Casey opinion which said States may not use regulations to place an “undue burden,” “obstacle,” or “hindrance” in the way of a woman choosing to murder her child by abortion. From the majority opinion: “A provision of law…must not be an undue burden on the right [to abortion]” and the State “may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion” and a “State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

The Casey opinion was issued by a SCOTUS that had been stacked eight to one in favor of pro-life Republican appointees between 1973 and 1992. This opinion and its subsequent corollaries have been the basis upon which State and Federal judges have stayed new pro-life regulations ever since. Pro-lifers have wondered why the overwhelmingly pro-life court did not overturn Roe v. Wade, but the answer lies right in the introduction of its Casey opinion: The “principles of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained and reaffirmed.”

You read that right. A supposedly pro-life Republican court said they were affirming murder by abortion in order to save face (institutional integrity) and so as not to break their own made-up rule that they must stand by previous opinions (stare decisis).

Pro-lifers have also invested much false hope in the Texas pro-life legislation that allows private citizens to sue abortion providers, while at the same time spelling out that the State would in no way attempt to stop murder by abortion or punish anyone involved. The legislation has been stayed and unstayed a few times over the last several weeks as the political football game ensues, but it will take nothing more than one judge throwing out a lawsuit to blow up the whole scheme and return Texas to the status quo.

The primary purpose of civil government is to protect innocent lives, so when Texas blatantly abdicates its duty, why would God bless such a morally flawed strategy? It is nothing more than a sleight-of-hand trick.

But to focus all attention on the tyranny of judges is to fall into the pro-life strategic pitfall of the last five decades. The key to saving lives and abolishing abortion is not fixing courts and replacing judges first. The key is executive leadership and action. Remember, judges only write opinions. As Alexander Hamilton said in Federalist 78, judges “have neither force nor will, but merely judgement; and must ultimately depend upon the aide of the executive.”

While everyone is naively looking to the courts and legislatures to do something, executives get a free pass for failing to exercise any leadership, and even allowing agencies under their direction to actively support murder by abortion. It seems that average pro-life people and abolitionists are playing a shell game. In the traditional version, a pea is hidden under one of three walnut half-shells. After the shells have been shuffled around, the mark attempts to choose the shell containing the pea. Let us pretend the shells represent the executive, legislative, and judicial branches of government. The pea is the abolition of abortion. What happens?

We lose. The game is a con. Abolition is not under the judicial shell because of stare decisis. Abolition is not under the legislative shell because no matter what law they write, they have no power to enforce it. What about the executive shell?

No one ever picks the executive shell.

We keep getting played by the political street-corner hucksters. It is the governor who has the legal duty and authority to stop innocent bloodshed. The abolition pea is under the executive shell. While state statutes must be brought into compliance with our constitutions, keep in mind that the state legislature cannot abolish abortion without the governor, but the governor could achieve abolition through executive action and leadership.

It is time to stop falling for pro-life sleight-of-hand tactics. We should not expect God to bless our endless waiting games, our obedience to judicial tyrants, and our governors’ bearing the sword in vain. Until governors defy rogue judges, we will keep passing window-dressing, pro-life regulations that courts will stay while governors obey. Governors must defy judicial tyrants in obedience to God.

John Michener is the Director of Oklahomans United for Life (OUL). You can contact him at:

john.michener@oku4life.org