The classic Reformed theologians distinguished between three uses of the moral law (e.g., the Ten Commandments): 1) the pedagogical use, whereby sinners come to know the greatness of their sin and misery; 2) the civil use, whereby the moral law—traditionally both tables but in since the American Revolution, the second table—serves as norm for secular, civil life; 3) the normative use, whereby both tables of the moral law serve as the rule of life for the Christian.

Of these uses, as Scott Swain recently observed, “A decade ago many evangelical Christians were awakened to the danger of neglecting the moral/normative use of the law in the church’s (“gospel-centered”) preaching and teaching. One…factor behind recent craziness is longterm neglect of the civil use of the law in our catechesis.”

In the spirit of his exhortation to take seriously the civil use of the law in our catechesis, I would like to offer a rebuttal to Alex Berenson’s May 3, 2022 Substack essay, “On Roe v. Wade: And Why Abortion Should Be Legal.” Specifically, I want to apply sixth commandment (“you shall not murder”) to question of abortion.

Berenson writes,

Roe v. Wade is a terrible decision, invented law that has barely a flicker of Constitutional support.

And yet.

Making abortion illegal in some states will not stop abortion.

If a woman wants to end the life of a fetus, she will find a way to do so. If she can’t in her own state, she will travel to a state where abortion is legal. If she can’t travel, she will find an illegal provider close by. If she can’t do that, she will get a prescription for misoprostol and mifepristone. If she can’t do that, she’ll drink pennyroyal tea. If she can’t do that, maybe she’ll try a wire hanger.

Meanwhile rich and even middle-class women will stop at step one, travel to a state where abortion is legal.

He concedes flatly “Yes. Abortion is murder. It is.” He argues that, to be consistent, those who would criminalize abortion should seek the prosecution of the women who have them and the physicians who perform them.

Abortion, he writes, is “a very private murder, a murder for which the state has no responsibility and cannot interfere.” According to Berenson, this is a an awful reality which we must accept.

I agree with Berenson that Roe, Doe, and Casey were terribly decided and argued and that abortion is not entirely preventable. History tells us that it has never been entirely preventable. Women and their boyfriends, lovers, and husbands have always sought abortions. In the ancient world those abortions were chemically induced. There were “back alley” abortions but that they were widespread is a convenient myth to justify legalized abortion on demand. In 2013 Rickie Sollinger wrote:

Despite the charges surrounding the abortion practice of Kermit Gosnell in Philadelphia, there is little evidence that abortion caused high rates of morbidity or mortality before Roe v. Wade legalized the procedure in 1973. According to the Guttmacher Institute, for instance, abortion was listed as the official cause of death for almost 2,700 women in 1930 — a relatively small number in a time before antibiotics, when estimates are that at least 1 million abortions were performed per year. By 1940, the number of deaths had fallen under 1,700, and by 1965, below 200.

It is also true that other kinds of murders are also difficult, if not impossible to prevent. Most murders are not done by strangers but by people who know their victims well (e.g., family members). It is impossible to rid all houses of all possible murder weapons. It is not possible for the state to legislate away the passions that sometimes lead to murder. Still, we have laws on the books declaring homicide a felony typically entailing serious jail time and sometimes even death as a punishment. That we cannot prevent all murders does not mean that we do not legislate against it and seek to prevent it.

It is true that, post-Dobbs, that poor women may be less able than the wealthy to obtain an abortion. This means that the children of wealthy people may be more proportionally subject to murder. This hardly seems like an argument for legalization. Why should the infants of the poor be equally subject to murder? Surely it is better to be allowed to develop to term and to be delivered, even if it is into a poor family, than to be murdered by an abortionist? In what world is it better to be murdered than to be alive?

A sane, reasonable republic also has laws against suicide, which is self-murder and usually, to use Berenson’s language, “very private.” It is also virtually impossible to prevent. Nevertheless, a rational republic has an interest in the continuing life of its citizens for a most obvious reason: were everyone allowed to kill himself, there would not be a republic very long, would there? Further, it is in the interest of a society to signal, through legislation, that it values human life. That human life is intrinsically valuable is something that our founders regarded as “self-evident.”

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

It is also true that the founders were not always and utterly consistent with this principle. For the sake of the formation of the Republic they permitted the Southern states to benefit from kidnapping and to enslave a great number of African people. That was a crime against humanity and a patent violation of the principles upon which the Republic was founded. That contradiction would not begin to be resolved for 85 years and there would not be a genuine turn away from this contradiction for almost another century after the Civil War.

Nevertheless, despite the fact that did not live up to our principles we nevertheless affirmed those natural truths, which the Founders attributed to our Creator. Our inconsistency with our stated convictions did not invalidate those convictions. We are better off having kept those convictions and having sought to live by them as a society than had we given them up in the 19th century. What if we had said, “We shall never become consistent with our convictions. Let us make slavery a private matter”? Is that even imaginable? Of course not. Most of us knew and the South found out that Africans are humans made in the image of God and therefore under the protection of his natural, moral law. Berenson has already implicitly conceded this of human infants. Only humans may be murdered. Infants in utero are murdered, ergo, those infants are human and under protection of the Constitution and state and federal laws.

Berenson seems to think that, by raising the criminal ante, as it were, pro-lifers will be forced to admit the incoherence of their position and collapse before the problem. Not at all. We should all be able to agree, if Berenson is correct, that abortion is murder, that those physicians who perform them should be held criminally liable. They are the active agents of murder. It is the physician who uses medication or surgery to end the life of a defenseless human in utero. This has been the Western tradition for a very long time. The Assyrians knew this. The Greeks knew it too. It is not as if Christians wrote the Hippocratic Oath (400 BC), even if it was later revised in light of Christian convictions (e.g., few physicians invoke Apollo any longer).

In its original form, the Hippocratic Oath said, “Nor shall any man’s entreaty prevail upon me to administer poison to anyone; neither will I counsel any man to do so. Moreover, I will give no sort of medicine to any pregnant woman, with a view to destroy the child.” Another translation reads, “I will give no deadly medicine to any one if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” There is no question that the Greeks, 400 years before the incarnation of God the Son, understood that abortion was a crime.

Physicians still know that it is a moral crime intentionally to harm or destroy a human infant (foetus is Latin for infant). Should the woman be criminally liable for obtaining an abortion of her child? In some cases, yes. E.g., there are repeat offenders, i.e., women who are not intellectually disabled, who have hardened their hearts and seared their consciences, become pregnant serially and serially aborted their infants. These women demonstrate a callous disregard for life and should arguably face criminal prosecution. There are other women who are more victims than criminals, who are the victim of abuse or are pressured by family, husbands, or a boyfriend to abort their children. To the degree that there are such victims it hardly seems just to prosecute them. They will have to live the rest of their lives with the knowledge of what they did, which is a more severe punishment than pro-choice advocates seem ready to recognize.

“You shall not murder” is God’s moral, natural law. It is written on the conscience of every human. We all know, before anyone tells us, that it is morally wrong, i.e., sin, to take unjustly the life of another human being. It is universally forbidden in all civilized societies. Any culture in which it is not forbidden would be truly depraved—Hobbes’ state of nature where life is war of all against all.

Human infants are among the most vulnerable of all mammals. Calves have some size and are wobbly but soon walking within hours if not minutes of birth. Humans do not usually walk for about a year or more and they are more or less defenseless until they are perhaps 8 or 10. In the womb they are completely helpless. Nature itself tells us that humans conceive, gestate, and give birth to humans. At no point, from the moment of conception, may human embryos or human fetuses said to be anything other than developing humans. To take the life of a defenseless human simply because that human is inconvenient is barbaric and it should be illegal in any sane, civilized society.

©R. Scott Clark. All Rights Reserved.

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