Article ID: JAF0522JW | By: Jay Watts


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​On May 2, 2022, the website Poltico posted a story attributed to Josh Gerstein and Alexander Ward sharing a leaked first draft of the Supreme Court majority opinion on Dobbs v. Jackson Women’s Health Organization addressing the constitutionality of a Mississippi law restricting abortion after the 15th week of pregnancy.1 The majority opinion draft, authored by Associate Justice Samuel Alito, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), releasing the stranglehold the judicial branch has held over abortion and sending the issues to the individual states to settle abortion laws within their borders through local democratic efforts and elections. Chief Justice John Roberts almost immediately verified the document’s authenticity, announcing that the breach in secrecy that generally surrounds the deliberations of the Supreme Court would be met by an internal investigation.2 The draft and the decision were real. The outcry from both sides of the issue was immediate and intense.

Most of the loudest objections to the draft center on emotional appeals and anecdotal testimonies about women who need abortions and will be forced to compromise their safety and freedom to carry an unwanted child to term. The idea that Roe v. Wade (Roe) will be overturned produced a wave of fear, anger, and anti-religious vitriol. How could fifty years of legal precedent defending Roe suddenly be swept aside?

Justice Alito’s opinion breaks down into three main components, each building his case that Roe v. Wade was an egregiously bad decision.3 He argues that (1) Roe broke from historical tradition under U.S. law, (2) Roe extended a right to privacy beyond areas it may be reasonably implied in sexual decisions to unreasonably include the right to seek medical assistance in destroying nascent human life, and (3) that prior precedent may be overturned when sufficient conditions attain to make it the proper course of action for the Court to jettison bad precedent no matter how long it has stood. Roe v. Wade was a poorly reasoned decision that served hopelessly and endlessly to divide our nation. The solution is to move past the judicial overreach represented in Roe and allow the democratic elective process to sort out the laws governing access to abortion at a state level. Communities can decide for themselves how abortion is to be handled.

The end of Roe would create an opportunity to make an impact on our communities, but that end hasn’t materialized yet. Senate Democrats attempted and failed to forward a bill taking the legal outcomes established in Roe and Planned Parenthood v. Casey (Casey) and codify them in federal law. Anyone committed to creating a more life-affirming society must vigilantly attend to this moment. In as much as it is possible, we must prepare for the possible fall of Roe by answering the arguments defending Roe and pushing past emotional anecdotes to pursue a deeper evaluation of how our communities decide whose life within the human family matters.

JUSTICE ALITO’S JUSTIFICATION FOR OVERTURNING ROE v. WADE

Abortion is never mentioned in the Constitution, so when Justice Blackmun wrote the majority opinion for Roe, he grounded the right to abortion in a previously established right to privacy. The problem is that privacy isn’t mentioned in the Constitution either. Earlier cases established privacy rights by arguing the Constitution implied a right to privacy, and this implied right enjoyed historical recognition while fitting within our normally understood concept of liberty. Here we encounter Alito’s first criticism of the Roe decision: it is based on bad history.

For an implied right to be recognized in the Constitution, it must be “deeply rooted in this nation’s history and tradition” as well as “implicit in the concept of ordered liberty.” Abortion fails to meet that standard. The case made in Roe v Wade was based on two articles by pro-choice historian Cyril Means. Justice Blackmun uncritically leaned on Means’s version of abortion history in the U.S., and Alito draws on multiple resources to demonstrate the weakness of that case. For example, it is odd to argue that a right to abortion is grounded in the 14th Amendment when, at the time the 14th Amendment was ratified, three quarters of all states outlawed abortion. How can anyone argue that the right to abortion is deeply rooted in the 14th Amendment when the very people who ratified that Amendment rejected the right to abortion?

Alito also criticizes the idea that a right to privacy can be extended to cover abortion. Accepting that a right to privacy can be applied to sexual freedoms like the use of contraception does not require the law to move beyond to protecting the right to procure an abortion. Using contraception and getting an abortion are substantively different things. One act is the personal decision to frustrate the procreative process by preventing fertilization, preventing a new life from coming into existence. Abortion is the act of recognizing that a new life has already come into existence and destroying that life in order to free women from the burdens of pregnancy and motherhood. It is a destructive act by nature. Appeals to privacy cannot sufficiently justify killing a whole and distinct human life.

Finally, Alito addresses the idea that abortion is settled law. The concept of stare decisis encourages judges to decide cases in accordance with prior precedent. The principle elevates the Court above political whims, making certain that, in the common law tradition, like cases are decided in a like manner. However, Alito clarifies there has never been a rule that forbids overturning precedent, pointing out that the 1992 Casey ruling, which upheld Roe’s central holding, overturned many aspects of the Roe decision, including replacing the trimester system with a viability standard. He then offers a five-point justification for setting aside stare decisis and overturning Roe and Casey:

  • The nature of their error
  • The quality of their reasoning
  • The “workability” of the rules they imposed on the country
  • Their disruptive effect on other areas of law
  • The absence of concrete reliance

The nature of the error is that that “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” The authority to make this decision lies with the people of the United States, not nine judges on the Supreme Court.

Alito makes the case that the quality of reasoning offered to justify Roe and Casey is exceptionally poor, a fact admitted to even by legal scholars who support the outcomes of the Roe decision.4 Roe is poor legal reasoning operating as legislation wrongly enacted by the wrong branch of the U.S. government — the judicial rather than the legislative. The Casey decision made it worse by placing even more legal weight on poorly definable concepts like viability and undue burdens on women seeking abortion. This inability to clearly define what represents an undue burden, and which exact women are being burdened in what manner, leads to the rules imposed being unworkable and producing a disruptive effect on other laws. As Alito argues, abortion becomes a law unto itself, and general legal rules must be reinterpreted to meet the demands of forced legalized abortion. The principle of stare decisis is intended to establish conformity and uniformity in how decisions are made. Alito argues that Roe and Casey had a different effect. They don’t develop law across the board, they disrupt it. Unable to identify any clear reliance issues pertaining to the business of the Court, Alito determines the precedent must be overturned and the issue returned to the states and their respective legislative bodies. The Court cannot craft law, and it is time for the Court to get out of the business of doing so about abortion.

DUELING RESPONSES

There are two responding claims from abortion advocates that seem to be at odds. There has been no shortage of declarations on social media stating that outlawing abortion will not stop abortions from happening, it will only make abortions less safe, and women will die. A message was even spray painted on the walls of a pro-life organization whose office was hit with Molotov cocktails (homemade incendiary devices), threatening, “If abortions aren’t safe, you aren’t either!”5

Other pro-choice advocates counter with a different message. Yes, abortions will still happen, but the coat hanger image of illegal abortions is an anachronism. Telemedicine abortions and mail order abortions through the combination of mifepristone/misoprostol pills, aka RU-486, are safe ways to perform early abortions. And such abortions already comprise half of reported abortions in the United States and even more of what they term invisible abortions, abortions not being reported and not showing up on official abortion counts.6 Abigail R. A. Aiken of the University of Texas at Austin was previously quoted as saying, “When you say a self-managed abortion, people think about a coat hanger or a back-alley abortion….The reality is we’re sitting here in 2019, and it’s not like that anymore. You can go online, and you can fill out a form, and you can get this safe and effective technology delivered to your home.”7

This offers little comfort for the pro-life advocate. The idea of a safe abortion is a misnomer, and the large-scale, unregulated dispensing of prescription drugs does increase the risk of dangerous side effects should these pills be used in cases like tubal ectopic pregnancies without a doctor’s supervision. However, it demonstrates that the panicked assertion women will die of illegal back-alley abortions isn’t grounded. Abortion supporters debunk this claim.

THE “I AM PRO-BECKY” MEME

Another popular response featured a series of claims in a meme passed around social media. It began with the statement, “I’m not pro-murdering babies,” then continued with this statement: “I’m pro-Becky who found out at her 20 week anatomy scan that the infant she had been so excited to bring into this world had developed without life sustaining organs.”8 Eleven more women are named with various scenarios ranging from victims of sexual abuse, victims of spousal abuse, women abandoned, women facing life-threatening pregnancies, and women carrying a child with no discernible heartbeat. The post ends with this: “I’m pro-life. Their lives. Women’s lives. You don’t get to pick and choose which scenarios should be accepted. Women’s rights are meant to protect ALL women, regardless of their situation!” This meme really hit a chord with abortion advocates on the internet.

The problem is that final statement is demonstrably wrong. It is necessary both morally and medically to approach each case listed individually, essentially to pick and choose. Many of the situations in the meme represent what are termed hard cases, and hard cases are terrible no matter the laws surrounding abortion. Victims of rape and sexual abuse aren’t healed through abortion. Mothers anticipating the birth of their baby confronted with devastating news about the failed development of their unborn child aren’t magically healed by abortion. Others of the scenarios listed, like tubal ectopic pregnancy treatment and the removal of a miscarriage, have nothing to do with abortion law at all. Medical treatments concerning these issues will remain unchanged.

Far from being a devastating indictment of the pro-life position, the meme indicates a troubling unfamiliarity with the realities of abortion and how each scenario in this list is morally, medically, and legally approached. Believing abortion is a panacea for all pregnancy challenges and hard cases demonstrates a zealous commitment to abortion that can be described only as religious in nature.

WHO IS IMPOSING ON WHOM?

The people decrying this leaked draft and the possible overturning of Roe v. Wade often see this as the religious views of others being imposed upon society. The opposite is true. The Roe and Casey environment imposed the views of one side on the other. Declarations of neutrality are meaningless if the entire weight of the judicial system empowers one side of the abortion issue with full protection to perform abortions to such extreme lengths that only five other nations in the world possess equally as permissive abortion laws as the United States. That isn’t neutrality. That is an empty claim to neutrality and the practical protection of the pro-choice position to the complete exclusion of pro-life considerations. That is the definition of imposing one view over another.

The overturning of Roe ends imposition. As Alito writes, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting’.…That is what the Constitution and the rule of law demand.” No view will enjoy a privileged position. Everyone will have to find a way to talk to their neighbors if they wish to convince their communities either to restrict or allow abortion.

Any excuse for inaction on the local level dissolves with the Roe regime. The welfare of our neighbors moves front and center, as it always should be in the lives of those seeking to live in the likeness of Christ. We must attend to the welfare of our most helpless neighbors, the unborn, but also the welfare of mothers facing an unplanned pregnancy. We must attend to women and families thrust into the horror of those previously mentioned hard cases. We must make effort to create a life-affirming culture where the needs of our neighbors cannot be easily dismissed, and we no longer deceive ourselves that a moral evil like destroying the next generation before they are born is a panacea that releases us from the hard work of caring about the lives of the people around us.

The end of Roe is hardly the end of the abortion debate, nor is it an ultimate victory for pro-life advocates. The overturning of Roe marks the beginning of a new challenge to make our world a better place by embracing the personal responsibility to love our unborn neighbors as ourselves in our communities.

Jay Watts is the Founder and President of Merely Human Ministries, Inc. an organization committed to equipping Christians and pro-life advocates to defend the intrinsic dignity of all human life.

NOTES

  1. Josh Gerstein and Alexander Ward, “Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows,” Politico, May 2, 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
  2. Press Release, Supreme Court of the United States, May 3, 2022, https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_05-03-22.
  3. Justice Samuel Alito’s leaked “1st Draft,” Dobbs v. Jackson Women’s Health Organization, United States Supreme Court, February 10, 2022, contributed by Politico.com staff, https://www.documentcloud.org/documents/21835435-scotus-initial-draft. All subsequent references to, and reasoning drawn from, Alito’s argumentation refer to or stem from this document, unless otherwise noted.
  4. Ed Whelan, “Yale Law Professor Akhil Amar Refutes Critics of Dobbs Draft,” National Review, May 14, 2022, https://www.nationalreview.com/bench-memos/yale-law-professor-akhil-amar-refutes-critics-of-dobbs-draft/.
  5. Logan Registrad, Brad Hamilton, and Jaymes Langhrer, “No Arrests Made after Molotov Cocktails Thrown into Anti-abortion Group’s Madison Office,” Channel 3000, May 9, 2022, https://www.channel3000.com/no-arrests-made-after-molotov-cocktails-thrown-into-anti-abortion-groups-office/.
  6. Claire Cain Miller and Margot Sanger-Katz, “Why America’s Abortion Rate Might Be Higher Than It Appears,” New York Times, September 20, 2019, https://www.nytimes.com/2019/09/20/upshot/abortion-pills-rising-use.html.
  7. Miller and Sanger-Katz, “Why America’s Abortion Rate Might Be Higher Than It Appears.”
  8.  “I’m Not Pro-Murdering Babies,” Reddit, May 4, 2022, https://www.reddit.com/r/TwoXChromosomes/comments/uiorxl/im_not_promurdering_babies/.