Roe Is Out, Dobbs Is In: The State of Abortion in America

“Abortion presents a profound moral question.” So said the Supreme Court of the United States (SCOTUS) in its June 24 ruling on Dobbs v. Jackson Women’s Health Organization, which overruled the earlier Court decisions Roe. v. Wade and Planned Parenthood v. Casey. And yet, with its ruling, SCOTUS chose not to answer that “profound moral question.” Rather, as the majority opinion stated, it is to be answered by “the people and their elected representatives” (SupremeCourt.gov).

So, how might we describe the SCOTUS majority in Dobbs? Ironically, it was pro-choice—allowing each state to choose its own abortion laws! If you listened only to television news shows or read only the headlines of newspaper and Web reports, you might think SCOTUS took a “pro-life” position and outlawed abortion, which is simply not true. Yet, after nearly 50 years of nationally affirmed law, the availability of abortion will again vary from state to state, as it did before January 1973 when the court by a 7–2 margin issued its Roe ruling.

How did this happen? In 2018, 75 percent of nations around the world prohibited abortion after twelve weeks, unless the pregnancy endangered the mother’s life. The U.S. was one of only seven countries that allowed elective abortion on demand after 20 weeks of gestation. Many Mississippi state legislators considered their nation’s laws unnecessarily lenient and passed the Mississippi Gestational Age Act, which prohibited abortions after 15 weeks of pregnancy. Though this allowed access to abortion later in pregnancies than is common in much of the world, abortion advocates considered the restriction too severe, and filed the court case now known informally as Dobbs.

A Washington Post news analysis in May 2022 observed that about 7 percent of U.S. abortions in 2019 took place after the fifteenth week of pregnancy. Basing its ruling on 1970s medical knowledge, Roe forbade ending a healthy pregnancy after 26 weeks on the premise that by then “fetal viability” had been reached. A challenge was inevitable, as medical technology since the 1970s has allowed viable births after just 21 weeks of pregnancy. Indeed, as the Court’s majority opinion in Dobbs acknowledged, “the viability line makes no sense.” Roe could not withstand the advance of medical science.

Back to the States

Recognizing that Roe would not last as settled precedent, many states in recent years passed “trigger laws” designed to take effect in Roe’s absence. Twenty states and the District of Columbia established laws preserving significant post-Roe access to abortion, while another 13 passed laws to restrict abortion further if Roe were overturned.

Especially in the Southern and Midwestern states, where anti-abortion restrictions are generally the strongest, the cost of later-term abortions will rise by the cost of bus fare to the nearest abortion-friendlier state. But even many who want to see abortion more widely available concede that new restrictions will not pose a great obstacle to wealthier women who will be able to find a doctor willing to assert the danger of a pregnancy, or who can simply go to a neighboring state for the procedure. It is the millions of low-income women for whom abortion may serve as last-resort birth control who will likely face new pressure to carry their child to birth.

Is there any other precedent for such an important matter to be left to individual states? Consider marriage—arguably the institution most fundamental to the stability of a nation. In six states—Delaware, Minnesota, New Jersey, New York, Pennsylvania, and Rhode Island—marriage is prohibited to anyone under age 18. In Nebraska, couples must wait until age 19, unless after age 17 they have parental consent. In Mississippi, couples must wait until age 21, unless after age 17 (for boys) or age 15 (for girls) they have parental consent. In Alaska, a couple with parental consent and judicial approval may marry at age 14. Some states allow marriage at age 16 or 17 with parental consent, others require both parental and judicial consent. Confusing? Perhaps. But we do not find pro-marriage activists raising money to fund bus trips sending young couples to teen-marriage-friendly states. And we have not seen the federal government intervening to eliminate local preferences about marital age.

Consequences of the Dobbs v. Jackson Ruling?

The Court’s majority opinion asserted that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” This makes it a matter for each of the nation’s 50 states. Yet, as the three dissenting Justices pointed out in their dissenting opinion, “no language in today’s decision stops the Federal Government from prohibiting abortions nationwide.” Left unsaid by these Justices is the sobering reality that the federal government could also permit abortions nationwide—yet, despite the cries of pro-abortion activists, the U.S. Congress has not chosen to do so in the nearly 50 years since Roe. Rather, the situation rested on a Supreme Court ruling, not a federal law.

Had Congress passed its own abortion law, we might not now be facing the controversy and contention that is brewing as states prepare to test the new Dobbs standard. Already, comments by Justice Clarence Thomas, indicating that prior “due process” precedents in SCOTUS cases Obergefell v. Hodges, Lawrence v. Texas, and Griswold v. Connecticut—which gave nationwide approval for same-sex “marriage,” same-sex intimacy, and methods for contraception—should be considered open for review. Yet, significantly, the majority opinion chose to contradict Thomas, noting that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’”

In response, the three dissenting Justices ironically took Thomas’ side to attack the majority opinion, which they said would lead naturally to the reconsiderations for which Justice Thomas hopes. But rather than acknowledge that different Justices might with sincerity be applying their varying legal perspectives to these controversial matters to reach differing conclusions, the dissenting opinion escalated its rhetoric with a bold accusation: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

And yet, even the three Justices who opposed the majority clarified in their dissent that “‘the State has legitimate interests from the outset of the pregnancy in protecting’ the ‘life of the fetus that may become a child.’” Yes, you read that correctly. None of the nine Justices denied that the individual developing in his or her mother’s womb is a “life.” Even in the eyes of the three dissenting Justices, this was not a decision about preserving or endangering lives; it was about whether decisions about those lives should be enforced at the federal level or resolved by the individual states.

What Comes Next?

Should we expect Justice Thomas’ perspective to prevail? Some have expressed fear that other long-standing precedents may be overturned. And, fanning the partisan flames, several senators who took part in Justice Brett Kavanaugh’s confirmation hearings have now expressed second thoughts about the tenor of the Justice’s statements describing Roe as “settled law,” and now question his affirmation. Supporters of the Dobbs decision cite the infamous Plessy v. Ferguson case, which in 1896 legalized racial segregation but was overturned by 1954’s Brown v. Board of Education. Both sides agree that Court precedents are not absolute—bad decisions can be changed—but disagree as to whether Roe or Dobbs is the pertinent example of a bad decision.

Indeed, let us not forget that, whether or not people measure their words with the care one might expect of a Supreme Court Justice, people do change their opinions over time. Did Senate Democrats hear what they wanted to hear in evaluating Kavanaugh’s testimony acknowledging Roe as settled law? Or did he examine the facts afresh in Dobbs and change his mind? How far should we go in judging individuals by their past-expressed opinions? Even President Biden, when he served as a senator from Delaware, joined with a group of Republican senators in 1981 in support of a proposed constitutional amendment that would have banned abortion. The amendment went nowhere, and a year later Biden reversed his position, excusing his earlier choice as an expression of his “Roman Catholic roots.” So, who can say what the Justices may do if asked to reconsider earlier SCOTUS rulings that assigned to the federal government other decisions formerly left to the states?

As for the partisan divide in which the U.S. now finds itself, we may remember that Kavanaugh was confirmed by a narrow 50–48 margin in the Senate, with 49 of those 50 votes coming from Republicans. The only Democrat senator to support Kavanaugh was Joe Manchin of West Virginia, often a “maverick” among his fellow Democrats. Gone are the days when conservative senators evaluated liberal appointees on their judicial merits and liberal senators evaluated conservatives on their judicial merits. No one in Washington expects to see another Justice confirmed by a 78–22 vote as was Chief Justice John Roberts (appointed by George W. Bush in 2005) or by an 87–9 vote as was Justice Breyer (appointed by Bill Clinton in 1994). Even on the Court, an atmosphere of distrust has entered in the wake of the May 2022 leak of Justice Samuel Alito’s draft opinion—which, it turns out (other than later additions commenting on other Justices’ opinions), differed from the final document mostly at the level of proofreading, not substance.

As an aside concerning the security and confidentiality of SCOTUS deliberations, we should note that, as this article goes to press in early August, the identity of the leaker remains unknown.

Your State and Your Government?

We should also note that the Justices—at least in theory—are tasked not with the job of deciding what is right and what is wrong, but rather with deciding what the U.S. Constitution requires or allows. Even the three Justices who dissented in Dobbs acknowledged the Court’s interest in protecting the life of what they called the “fetus” in its mother’s womb. Yet the majority opinion did not find a constitutional reason for the federal government to protect that life—it simply let individual states decide how and when citizens can kill their babies.

Are things now “better” or “worse” for pregnant mothers and the lives within their wombs? At Tomorrow’s World, we understand abortion as a scriptural question, not a political one. We cannot avoid the plain truth that an abortion kills a human being—genetically distinct from his or her mother—made in the image of the divine Creator. A passage from the book of Proverbs may come to mind: “These six things the Lord hates, yes, seven are an abomination to Him: a proud look, a lying tongue, hands that shed innocent blood, a heart that devises wicked plans, feet that are swift in running to evil, a false witness who speaks lies, and one who sows discord among brethren” (Proverbs 6:16–19). How much wicked planning and lying have gone on as the abortion debate has continued? And how much blood has been shed of innocent new life waiting to be born?

Yet the political controversy surrounding the SCOTUS decision illustrates very well one reason why God considers His people to be living as “ambassadors” in this present world. As Christians, our duty is to grow in His righteous character—not to become sidetracked into supporting one partisan perspective or another. Even the most expertly crafted body of law designed by mankind cannot measure up to God’s perfect law, which extends justice and mercy to all, upholding His righteousness. And the day will come—soon—when His Kingdom and His perfect law of love will reign on planet Earth.