Life, Liberty, and Penumbra
My good friend, fellow patriot, attorney, and retired U.S. Army Major (Retired) William Ostan, agreed to share some insights with us regarding the Dobbs abortion case. His insights are important.
“As the Dobbs case brought the macabre issue of abortion back to the forefront of the nation’s consciousness[1], I re-remembered my time as a student at Pepperdine Law School. I began my studies with the premise that all life is sacred and therefore knew that abortion was a grievous wrong. What I shockingly learned at law school was that the Supreme Court Justice who authored the Roe v. Wade case knew that his reasoning was also wrong according to the U.S. Constitution, but he wrote the fatal majority opinion anyway.
“When I read Roe, and the cases that came before and after it, I always experienced righteous anger and cognitive dissonance. This is because the Justices were very smart lawyers at the pinnacle of their profession, but they were making very stupid abortion-related rulings based on nothing that resembled Constitutional law. In fact, Justice Blackmun admitted this in his Roe opinion when he stated,
‘The Constitution does not explicitly mention any right of privacy…however,…the Court has recognized that a right of personal privacy…does exist under the Constitution…in the penumbras of the Bill of Rights’ [2]
“I didn’t know what a “penumbra” was but thought it must be something unbelievably profound and clearly convincing, since it was being used to create the right of privacy - the faulty foundation on which abortion was built. I found out that “penumbra” began as an astronomy term and was borrowed by the legal profession. It means, ‘a partial shade or obscurity on the margin of the perfect shade in an eclipse; or between the perfect shade, where the light is entirely intercepted, and the full light.’ [3] So basically, Justice Blackmun ‘discovered’ the right to privacy, which has enabled a mother to murder her child, in the darkness of a shadow emanating from the Bill of Rights. His ridiculous jurisprudence would be laughable if the consequences weren’t so tragic.
“If law school taught me anything, it’s that intelligence does not automatically guarantee wisdom. They are different. In other words, even if someone is very smart, it doesn’t mean they possess moral clarity on the sacred issues of life and liberty.
“And that’s exactly what we need to pray for the Justices to possess in this case – namely, the moral clarity and personal courage to overrule one of the most heinous and evil decisions in our country’s history. Below are a couple of insights that will encourage you to pray with endurance until the Dobbs case is formally decided.
“1) First, the 1st week in December truly was an extremely important time for Dobbs as oral arguments were presented, and the 9 Justices met by themselves that Friday for a preliminary vote on their decision. However, this is not necessarily a final vote, as some believe. If the decision is close, then the Justices will lobby each other right up until this summer when the final written opinion is released with the force of law.[4]
“There is a precedent for this happening before with landmark cases. For example, the Obamacare ruling seemed strange when it was released as Chief Justice Roberts’ legal reasoning was incoherent. Also, the minority opinion written by the four conservative Justices read like a majority opinion. Supreme Court experts were initially confused.
“What came to light later is that John Roberts switched sides in May (mere weeks before the final written decision was released) despite a one-month campaign from Anthony Kennedy to stay with the conservatives on the right side of a 5-4 vote. Jan Crawford of CBS News reported,
‘I am told by two sources with specific knowledge of the court’s deliberations that Roberts initially sided with the conservatives in this case and was prepared to strike down…the individual mandate. But Roberts…changed his views, deciding instead to join with the liberals. There was a one-month campaign to bring Roberts back into the conservative fold, led, ironically, by Anthony Kennedy.’ [5]
“The Dobbs case, like Obamacare, may go down to the wire. We must pray without ceasing until the final written opinion is released in June or July, 2022. Anything can happen in the next several months.
“2) Second, and in my opinion most importantly, we must pray for who is assigned to write the opinion. If Chief Justice Roberts is in the majority, then he will decide who writes it. His previous written opinions have shown him to be highly concerned with the legal doctrine of stare decisis et non quieta movere, which is Latin for ‘to stand by things decided, and not to disturb settled points.’ [6] Because of stare decisis, Roberts may be unwilling to completely overturn Roe and his opinion could take an incrementalistic ‘middle-ground’ approach.
“Therefore, while this may seem counter-intuitive, it could be better to have a 5-4 win without Roberts than a 6-3 win with him. If a 5-4 win happens, then Justice Clarence Thomas will decide who writes the opinion. He may write it himself (which would be great, as he possesses moral clarity) or assign it to another Justice in the conservative majority. Wouldn’t it be amazing if he selected Justice Amy Coney Barrett, a mother with adopted children, to write the opinion that finally overturns almost 50 years of abortion!
“The late Justice Antonin Scalia, who was a stalwart conservative and Constitutional originalist,[7] would write scathing minority opinions in any abortion related cases that came to the Supreme Court after Roe. In 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, he wrote:
‘…the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.’ [8]
“The entire dissenting opinion by Justice Scalia in Casey displayed his brilliance and prescience 30 years ago. Let’s pray together that he is finally proven right, and a favorable ruling in Dobbs is the beginning of the end to our national anguish over abortion.”
Pray with me: [9]
Heavenly Father, we thank You that the Supreme Court has granted a hearing for the Dobbs case. We appeal to You, the Supreme Judge of all the earth, to safeguard life in America. Please completely overturn Roe v. Wade. We pray by name for Justices John Roberts, Clarence Thomas, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. May the Holy Spirit move in their hearts and minds so that they would rule on the side of life.[10 ]Break through any seared consciences and give them renewed moral clarity so that they can see right from wrong.
We ask that the Justices would not be influenced by political pressure or perceived public opinion, but that they would be impartial in their judgment.[11] Father, we pray that the fear of You would be present as the Justices deliberate the case and negotiate with one another.[12] Please grant strength to the 5 conservatives to hold the line on life, regardless of Roberts’ influence. Give the entire 9 divine wisdom, the true wisdom from heaven, and empower them to be free from any confusion the enemy may cause.[13] Let them be clear-minded and free from distraction.
Lord, we implore You to frustrate the pro-abortion activists’ and the media’s attempts to deceive the American public by labeling pro-life policy as extreme.[14] We also ask that You inspire pro-life advocates to continue their efforts to discover creative ways to tell the beautiful stories of choosing life. We pray that accurate information will be distributed to the public about how policies like Mississippi’s Gestational Age Act protects mothers and babies.[15] Let the Dobbs case mark the beginning of the end to our national anguish over abortion.
Jesus, I plead your blood over my sins and the sins of my nation. God, end abortion and send revival to America! [16]
Our decree:
We decree that Dobbs will completely overturn Roe v. Wade and be the first step in totally eradicating the scourge of abortion from America so that our land will be healed.
Bio:
William J. Ostan, Esq. is a retired United States Army Major and the recipient of two bronze stars. He is the founder and CEO of Arc of Justice, a nonprofit organization that advocates for wounded warriors. Will is the co-author of the Wounded Warrior Bill of Rights (House Resolution 6043) and is a Blackstone Fellow. You can find out more about his story here or at arcofjusticeusa.org
Click on the link below to watch the full video.
[1] Will the Justices Let Go of Abortion?, Peggy Noonan, Wall Street Journal, December 4-5, 2021.
[2] Roe v. Wade, 410 U.S. 113 (1973).
[3] American Dictionary of the English Language, Noah Webster, 1828. Definition of “penumbra.”
[4] Don’t trust the so-called experts and prognosticators who are predicting the Dobbs outcome based on the questions posed by the different Justices during oral arguments on Wednesday, December 1st. Anyone who has spent a single day in law school knows that the Socratic method of instruction is used. This method is basically a litany of ongoing questions where, instead of presenting information for a student to regurgitate on a test as in college, the law professor asks probing questions of the student to have them arrive at an epiphany of legal reasoning. Oftentimes during the Socratic method, the law professor will play “devil’s advocate” by asking misleading questions to test the knowledge of the student.
All the Justices are graduates of elite law schools and have been trained by the Socratic method. There have been many cases in the past where questions asked during oral argument bear no indication of the way the court will rule. One seemingly simple legal nuance that didn’t come up in oral arguments can radically alter the final written opinion.
While I have high hopes that Dobbs is indeed the moment that the pro-life prayer movement has been leading up to for 50 years, we should not think that the hard work of intercessory prayer is complete.
[5] The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare by Avik Roy. https://www.forbes.com/sites/theapothecary/2012/07/01/the-supreme-courts-john-roberts-changed-his-obamacare-vote-in-may/?sh=7a3c71ced701 Accessed on December 10th, 2021.
[6] Black’s Law Dictionary, Deluxe, 7th Edition. Bryan A. Gardner, Editor in Chief. Page 1414. This is the doctrine of a precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.
[7] An excellent treatise on Justice Scalia’s judicial philosophy is his book “A Matter of Interpretation – Federal Courts and the Law.” This book includes responses from four writers with differing points of view to include Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin.
[8] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Here is a fuller rendering of Justice Scalia’s final sentences in his dissent: “…by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
[9] This prayer was adapted from some of the prayer points in Alliance Defending Freedom’s “Generational Wins Prayer Guide” which can be accessed at www.adflegal.org/prayer
[10] Proverbs 21:1
[11] Deuteronomy 16:19
[12] Proverbs 8:13
[13] Proverbs 1:23
[14] Proverbs 26:24-26
[15] Psalm 119:160
[16] These last two sentences are the 22-word prayer that millions of people have prayed around the world because of the Bound 4 Life movement. Find out more about how you can join Matt Lockett and his team at www.bound4life.com
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