Is Abortion Legal in America?  Yes or No?  and Why So?

F. Earle Fox

To get the issue on the table: No, abortion is not legal anywhere in America, nor in any other place on the earth.  Why is that so?

That will seem like an outrageous statement to many, if not most, Americans.  Almost to a person, politicians of all stripes have routinely assumed that Roe v. Wade in 1973 made abortion legal, the law of the land.  We hear it over and over from people who should know better.


I will be relying on the expertise of two very competent constitutional scholars, Kerry L. Morgan and Herbert Titus.  I am relying also on the works of William Blackstone, the preeminent British attorney who was one of the first to compile English Common Law into an organized body of law, writing during the mid-1700's and helping to set the stage for the American Revolution.  (See also Commentaries on the Laws of England and The Law & the Grace of God by Fox).

Blackstone was summing up the steadily developing political tradition of Western Christendom, which came to a turning point with the Magna Carta in 1215.  The powers of governmental coercive force were held more or less consistently by those who were the rich and powerful, especially in paganism and secularism, but even in Christendom after Emperor Constantine gave his favor to Christianity as the "religion of the empire".  The ordinary man had little to say about how he was governed.  But thanks alone to the deepening Biblical tradition, that was changing.

When Blackstone wrote that no law of man can be superior to the law of God, he was not proposing a new and contentious idea.  He was writing what had come to be accepted as a fundamental part of Christian society -- even long before the Magna Carta began to make that principle a deep reality in government practice.  The French, of course, in their 1792 revolution, were in violent and terribly destructive rebellion against any law of God.  But England and especially America understood themselves to be under the law and grace of God.  The American founding fathers were of one mind about that, and so were the great majority of the people.

But with the post-Reformation/Renaissance deepening understanding of how God does indeed rule the world, the "divine right of worship" was taken from those rich and powerful and given to "we, the people".  All government was understood to derive from the original law of God.  That combined with the Biblical doctrine of creation with the unheard of notion that we are one and all created in the Image of God, and thus stand equally before each other and before any government, gradually led, through tumultuous and often brutal centuries, even among Christians, to a government (as originally said by John Wycliffe) of, by, and for the people.

If all government then proceeds from the law of God, if all civil government is instituted, as said by our Declaration of Independence, for the protection of those liberties which the law of God grants to us, the people, then it follows that there is no legitimate government except that which is under the law of God.  That is a thought almost unbearable to modern citizens of so-called "liberal", i.e., secularized, democracies.   And few Christians know how to defend such a claim.  We must learn.

Secular people, and some Christians, reply, "That is theocracy!  And theocracy is a tyranny!"   But both the historical evidence and the logical evidence tells us that it has been precisely the law and grace of God which have given us, as noted by Wycliffe, a limited government for a free people.  Neither secular nor pagan societies can build or sustain either a limited government or a free people.

That means that civil government is logically and morally incapable of, apart from God,  forming its own legitimate government.  It may try out of ignorance, but that is why the apostles of Jesus are commanded to inform them of the truth of the matter, that Jesus has already been appointed the King of kings and Lord of lords -- the Great Commission ending the Gospel of Matthew.  There is only one government, and the law of God is our Cosmic Covenental Constitution.  

That, then, is the first reason why Roe v. Wade cannot be the law of the land.  No law contravening the law of God is a legitimate law, and has no authority of enforcement.

The second reason Roe v. Wade is not the law of the land is that Roe was a finding of a court, not voted by the legislature.  Courts cannot make laws, they can make only judgements of guilty or not concerning the parties to the case.  Their opinions of the laws are just that, interesting and perhaps valuable opinions.  But the legislative and the executive powers have equal rights and responsibilities under the separation of powers to issue their own opinions.  The executive can refuse to enforce such a law (as Lincoln did with the Dred Scott decision), and Congress can discipline the judges for abuse of their powers.

Roe v. Wade is not the law of the land, and we, the people must rise up, reclaim our Constitutional heritage, and elect to Congress and to the Presidency persons who are commited with their lives to defending and protecting the Constitution of the United States, as every one of them swears to do in their oath of office.

The evidence is clear that the infant is indeed a person, not a blob of tissue.  That means that the entity in the womb is entitled to the same protection of law as any born person, and that civil government is therefore obligated to defend such persons, not invent nonsensical "penumbras of privacy" for the mother to kill the child in her womb.

For a more extensive explanation of these issues, see my new book, "Abortion, the Bible, and America"theroadtoemmaus.org