The End of Roe and the Beginning of a New Fight

Author:

Jay Watts

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Article ID:

JAF34523

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Updated: 

Jun 9, 2023

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Published:

Jun 3, 2023

This article first appeared in the Christian Research Journal, volume 45, number 2/3  (2022). For further information or to support the Christian Research Journal please click here.

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SYNOPSIS

Roe v. Wade (1973) no longer dominates the legal fight over abortion in the United States. That landmark Supreme Court decision declared access to abortion a fundamental constitutional right and stood as a bulwark against pro-life efforts to craft laws for nearly fifty years. Every challenge to permissive abortion laws eventually crashed on the wall of Roe and the subsequent decision affirming it, Planned Parenthood v. Casey (1992). Dobbs v. Jackson Women’s Health Organization (2022) ended that stranglehold by reevaluating the Roe decision’s declaration that abortion is a constitutional right on two criteria — whether it is deeply rooted in our history and traditions, and whether it is necessary in the practice of our ordered liberty. Per Dobbs, abortion fails to meet both criteria; therefore, Roe was overturned despite fifty years of precedent.

This decision brought expected backlash, including some violence and a flood of claims about the dangers of restricting abortion. Abortion advocates claimed pro-life laws will lead to women dying of illegal abortions, restriction on interstate travel to get abortions, women being prosecuted for having a miscarriage, and an assault by a rogue court on other rights. In each case, the truth is far less dangerous and extreme than abortion advocates would have us believe. Christians can now impact our communities and actively work to create a more life-affirming culture. We cannot shirk our responsibility to serve the unborn, women in crisis, and those who disagree with us about the nature of human dignity and the value of life.

On Friday, June 24, 2022, the United States Supreme Court released the final decision on Dobbs v. Jackson Women’s Health Organization,1 a legal challenge to a Mississippi law that moved the point at which a fetus can be protected from abortion on account of viability to 15-weeks gestation. The Supreme Court not only upheld the constitutionality of that law but overturned Roe v. Wade (1973),2 ruling no constitutional right to abortion exists. Justice Samuel Alito wrote the majority opinion determining that Roe was wrongly decided and the issue must return to the states to be fought out through the democratic elective process.

Pro-life groups mostly celebrated the long sought legal victory, not as a total triumph but as a necessary step toward a more life-affirming society.3 Abortion supporters called the Court rogue, saying it is a group of religious judges seeking to impose their view of human life on the nation.4 They mourned a loss of rights and assured everyone that women will die because of this decision.5 Journalists stoked fears that women’s travel across state lines would be restricted by pro-life local authorities6 who might soon launch intrusive investigations into miscarriages.7 Online groups promised a Night of Rage,8 which didn’t happen, but targeted acts of vandalism and threats against pro-life organizations did occur.9

Little in the immediate aftermath on social media brought clarity to the actual nature of the ruling. Emotional responses flooded online, but few people engaged the actual legal reasoning.

The Decision

Justice Samuel Alito’s majority decision does not strip women across America of a right to abortion. Instead, it argues that no such constitutional right ever existed. The federal judiciary imposed restrictions on state legislatures regarding abortion for nearly fifty years in light of the Roe decision. The Dobbs decision now permits states to decide on the issue as the citizens of those states see fit. It allows local governments to make laws that reflect their own community standards with respect to the morality of abortion and ceases to demand the whole nation recognize abortion as a constitutionally protected right.

The Declaration of Independence justified rebellion in the face of tyranny and injustice on the grounds that all men are created equal and endowed by their Creator with certain rights. Legitimate governments exist to protect those fundamental rights, and the U.S. Constitution does so by enumerating freedoms that restrain the government. When we discuss constitutional rights, we are referring to these fundamental rights, not the broader subject of legal rights that can be conferred upon or withheld from people. For example, we have no fundamental right to drive a car, but we do have a fundamental right to freedom of speech. The state can set standards to grant or revoke a license to drive. The state cannot grant or revoke freedom of speech. The Roe decision maintained that access to abortion was a right in the category of rights to freedom of speech, religion, and assembly. The Dobbs decision reexamined that interpretation of the Constitution and found the case for abortion as a constitutional right uncompelling.

Two categories of constitutional rights exist: enumerated and unenumerated. Enumerated rights are those rights that are written down (e.g., free speech, free press, right to peaceful assembly, etc.). Unenumerated rights are not written down, but that doesn’t mean they are less real. The Ninth Amendment provides for the recognition of rights not listed because the framers of the Constitution understood they didn’t create an exhaustive list. The Fourteenth Amendment, particularly the Due Process Clause, prevents states from creating laws that violate fundamental rights. The Roe Court ruled that the right to abortion was an extension of a right to privacy established in earlier cases like Griswold v. Connecticut (1965) — thus, both the right to abortion and the right to privacy were unwritten rights.

How does the Court identify unwritten constitutional rights? In his majority opinion, Alito refers to the “deeply rooted” rights in “history and tradition,” a reference to prior Court decisions involving unwritten rights.10 Alito specifically cites Justice Ruth Bader Ginsburg’s opinion in Timbs v. Indiana (2019) that an unwritten right can be recognized if it is “deeply rooted in this Nation’s history and tradition” or if it is “implicit in the concept of ordered liberty.”11 Any unwritten right that can pass either of those tests can be recognized as an unenumerated right in the tradition of the Ninth Amendment and is subject to the protections of the Due Process Clause in the Fourteenth Amendment. The Roe decision claimed to establish abortion as a fundamental right based on these criteria. The Dobbs decision revisited both categories of evaluation and found that Roe (along with Planned Parenthood v. Casey [1992]) was “egregiously wrong and deeply damaging”12 in its findings, and the nature of the error combined with additional critical considerations required the Court to break precedent.

Not Entrenched in Legal Tradition. First, abortion fails the deep roots test. There is no evidence that the right to abortion has been “deeply rooted in this Nation’s history and tradition.” In English Common Law, at the founding of our nation, at the ratification of the Ninth Amendment and the Bill of Rights, at the ratification of the Fourteenth Amendment and the Due Process Clause, and all throughout American history until the 1950s, what Alito terms an “overwhelming consensus” prohibited abortion.13 And even at the time of the Roe decision, a “substantial majority” of the United States continued to prohibit abortion.14

Abortion supporters place a lot of emphasis on what are termed quickening laws — that early anti-abortion laws explicitly prohibited abortion only after quickening, or the moment a mother can first feel her baby moving.15 They claim such laws demonstrate a historical tolerance for early-term abortions. But this line of reasoning is a common mistake by people broadcasting modern sensibilities into the past. Embryology, as we understand it today, didn’t exist until very recently. The same is true for medical technologies like fetal doppler heartbeat monitors and ultrasound. Quickening laws existed because quickening provided confirmation of a live pregnancy.16 Therefore, killing the fetus after the fetus demonstrated it was alive through detectable movement was a serious wrong. This isn’t a case of tolerance for early abortion but one of primitive medical knowledge. Alito provides evidence for this position by demonstrating that as knowledge of embryology grew, abortion laws grew more restrictive in response. The laws evolved to fit medical knowledge.17

Not Indispensable for Order in Society. As for the second criterion, the right to privacy meets the test of being “implicit in our concept of ordered liberty,” meaning that practicing our freedoms of speech, religion, and other enumerated rights would be difficult to imagine without a right to privacy, too. However, it is not at all clear, contrary to the Roe Court’s ruling, that a right to abortion is also implied by extension from the implied right to privacy. It is widely reported that nearly one in four women in the U.S. will get an abortion in their reproductive lifetimes.18 That means 75 percent of American women practice free speech, choose their religion, and peaceably assemble without ever having to access abortion in cooperation with those other rights. Most women enjoy the fundamental liberties of our nation without abortion.

Unlike other appeals to privacy affirmed by the Court, abortion involves an inherently destructive act toward a nascent human life. Per Alito, privacy justifies marrying who you want, sexual decisions made in our homes, and the use of birth control and contraception. It is perfectly reasonable to differentiate those private decisions from the private decision to have an abortion.19 Every abortion has a victim. That fact draws a clear line between abortion and other privacy claims.

Court tradition holds that an unenumerated and unwritten constitutional right must pass either a deep roots test or must be implied in our practice of ordered liberty. The majority opinion reevaluated both criteria at length and determined abortion passes neither test. Roe was wrongly decided, and Casey erred in reaffirming Roe’s central claim. No one has a constitutional right to get an abortion. The states are free to fight out this issue in the elective democratic process and establish standards consistent with their community values.

The Aftermath

Anger and fear characterized the immediate aftermath of the release of the Dobbs decision. A group calling themselves Jane’s Revenge promised violence on a massive scale as a justified response to pro-life advocacy, declaring that making pro-life organizations afraid to operate was a legitimate goal.20 They failed to fulfill the promise of a Night of Rage, but they have firebombed property and published lists of pregnancy center addresses with a call to vandalize them. Several state Attorneys General crafted a letter to U.S. Attorney General Merrick Garland demanding he fulfill his oath of office and launch an investigation into what they termed domestic terrorism.21

Numerous editorials and opinion pieces spread fear about the far-reaching implications of Dobbs. In addition to the claims that women will die, pro-abortion advocates stoke fears that states might limit travel across borders to control abortion travel, that women would be investigated and prosecuted for miscarriages, and that the Supreme Court will eventually eliminate other rights like gay marriage and access to contraception.

Women Will Die?

A familiar refrain from abortion advocates is rulings like Dobbs guarantee women will die seeking illegal abortions.22 This claim is flawed in multiple ways. First, the argument assumes the unborn are not one of us. If the human fetus is a full member of the human family — one of us — then this claim amounts to saying it should be legal for one group of human beings to kill another group of human beings for being inconvenient. They don’t get to assume the unborn aren’t truly human without argument.

Second, passing laws to protect unborn life does not force women to get illegal abortions. The choice to break the law is just that, a choice. This defense amounts to a threat — let us have unfettered access to abortion or we will do illegal and dangerous things to ourselves.

Finally, illegal abortions did contribute to the deaths of larger numbers of women in the 1920s and 1930s. However, the discovery of antibiotics and the advancement of medical science reduced that number to something so low that even in 1960 abortion advocate Mary Calderone argued illegal abortions represented no real danger, stating, “abortion, whether therapeutic or illegal, is in the main no longer dangerous, because it is being done well by physicians.”23 Today, the majority of abortions in the U.S. are medical abortions, accomplished through taking pills, leading one academic abortion advocate to claim there is no need to imagine a future with coat hangers and women dying.24 The worry about such commits an anachronism.

Will States Restrict Abortion Travel?

As states establish abortion laws within their borders, the question of interstate cooperation is a legitimate concern.25 It is doubtful any state that allows abortion would cooperate with the efforts of pro-life states to punish either travelers or out-of-state abortion providers, but it is worth noting the lengths to which states are going to communicate how seriously they take this issue. Could the fall of Roe and the deep disagreements between state laws on this issue lead to pro-life states seizing control of interstate travel?

Not likely. Any law that attempted to limit the free travel between states would be ruled unconstitutional. Justice Brett Kavanaugh explicitly affirms that view in his concurring opinion.26 Given the current make-up of the Court, it is highly doubtful that any such law would be upheld. Free travel across state borders is a protected right that the current Court seems unlikely to restrict.

Prosecute Miscarriages?

Some abortion supporters fear an intrusive state government investigating miscarriages, some going so far as to delete content on apps designed to track fertility. Google promised to delete location information when women go to abortion providers.27 There are even claims that women are already being prosecuted for miscarriage.28

When abortion was illegal prior to Roe, women were not hunted down and prosecuted.29 The prosecutions that occurred focused on the doctors performing the abortions, and that seems likely to remain the case.30 Articles claiming women are being prosecuted for miscarriages ought to be met with skepticism, too. These are rarely cases of intrusive government investigators seeking out women who privately suffered miscarriages. For example, one case involved a woman needing medical attention after a claimed miscarriage. Fetal remains of a 35-week-old child were found in her home indicating they might have been born alive and then killed. That sparked an investigation and charges being filed as the fetal remains were evaluated.31 Whatever ultimately happens in cases like these, they are not proof of overzealous prosecution but the proper application of investigative powers into evidence indicative of a possible crime.

Coming for Other Rights?

Justice Clarence Thomas made comments in his concurring opinion that led to fears this Supreme Court is coming after gay marriage and contraception use next. Thomas criticized the use of the Due Process Clause in the Fourteenth Amendment in both Obergefell v. Hodges (2015, legalization of gay marriage) and Griswold v. Connecticut (1965, legalization of obtaining contraception within marriage).32

It is understandable how the overturning of Roe might lead abortion supporters to panic. They have declined debates for years under the excuse that Roe was settled law and not a worthy topic to discuss in that forum. With the fall of Roe, perhaps nothing feels safe.

There are reasons for them not to worry, though. Thomas’s concurring opinion was exactly that, his opinion. No other Justice joined. Alito addressed these concerns in his majority opinion,33 as did Kavanaugh in his concurring opinion,34 both making it clear that abortion falls into a unique category, altogether different from gay marriage and contraceptive use. Neither of those requires the destruction of an early human life. Thomas addressed what he sees as abuses of substantive due process challenges in Court decisions, a legal tool of evaluation that he believes is hopelessly flawed.35 His criticism isn’t a declaration of war but an admission that he hates the process by which those cases were decided. No Justice other than Thomas made any indication they want to see Obergefell or Griswold reexamined.

The Good We Ought to Do

Dobbs did not end the abortion fight in the U.S., but it altered it dramatically. The fight must become personal. Every American in every community must wrestle with questions about abortion now. What are the unborn? What is being done to the unborn? The issue will be decided in local elections and within state legislatures. The great moral issue of our age is now a local issue. All excuses for inaction have been removed. Anyone can make a difference.

James, the brother of Jesus, writes, “So for one who knows the right thing to do and does not do it, for him it is sin” (James 4:17 NASB). The pro-life position is built upon the claim that the unborn — the embryonic and fetal human — is one of us. The best scientific evidence indicates human life begins at fertilization, and the best philosophical arguments ground our equal human dignity in the only aspect of ourselves we all share equally, our common humanity. We are the image bearers of God. If any Christian believes these propositions, then there is a good we must do to live in accordance with the dictates of God. We must offer our voice to the voiceless and our service to those among us who cannot stand for themselves in the full tradition of James 1:27. Pure religion is visiting the widows and orphans in their distress. Our service to them cannot exalt us before others; widows, orphans, and the unborn lack any station that would elevate us in their gratitude. Our reward is acting in accordance with the will of God while remaining undefiled by the world. This is the good we know we ought to do, and we can’t fall prey to the sin of inaction.

We must love our neighbor as ourselves (Mark 12:31). To love our neighbor, we must seek to understand the expanse of our neighborhood and fight for the right to life for everyone within it. A community that embraces the inclusive view of human value elevates us all, and by correcting error we help those who failed to see the image of God in their fellow man live a life in greater alignment with the will of God. All our neighbors stand to benefit from a more life-affirming culture. We serve the unborn by fighting for their lives, we serve the families facing unplanned pregnancies by walking alongside them in their time of need, and we serve our community by fighting for a better vision of what it means to be human.

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

NOTES

  1. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ____ (2022), Majority Opinion Justice Samuel Alito, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
  2. Roe v. Wade, 410 U.S. 113 (1973), https://www.law.cornell.edu/supremecourt/text/410/113.
  3. Elizabeth Dias, “‘A Grievous Wrong Was Righted’: Anti-Abortion Activists Celebrate the End of Roe,” New York Times, June 24, 2022, https://www.nytimes.com/2022/06/24/us/anti-abortion-activists-roe.html.
  4. Mary Harris, “How the President Could Counter a Rogue Supreme Court,” Slate, July 6, 2022, https://slate.com/news-and-politics/2022/07/supreme-court-biden-packreform-conservatives-commission.html; Lindsay Kornick, “MSNBC Guest Claims Supreme Court ‘Zealots’ Are Ruling Based on ‘Christian Fundamentalist Belief,’ ”Fox News, July 11, 2022, https://www.foxnews.com/media/msnbc-supreme-courtzealots-ruling-based-christian-fundamentalist-belief.
  5. Mary Ziegler, “Roe’s Death Will Change American Democracy,” New York Times, June 24, 2022, https://www.nytimes.com/2022/06/24/opinion/roe-v-wadedobbs-democracy.html.
  6. Louis Jacobson, “Can States Punish Women for Traveling Out of State to Get an Abortion?” Poynter, July 6, 2022, https://www.poynter.org/fact-checking/2022/canstates-punish-women-for-traveling-out-of-state-to-get-an-abortion/.
  7. Patricia Hurtado and Francesca Maglione, “In a Post-Roe World, More Miscarriage and Stillbirth Prosecutions Await Women,” Bloomberg, July 5, 2022, https://www.bloomberg.com/news/articles/2022-07-05/miscarriage-stillbirthprosecutions-await-women-post-roe.
  8. Jack Dutton, “What Is Jane’s Revenge? Abortion Rights Group Vows ’Night of Rage’ Over Roe,” Newsweek, June 24, 2022, https://www.newsweek.com/whatjanes-revenge-abortion-rights-group-vows-night-rage-over-roe-1718919.
  9. Amber Asher Notheis, “Here Are All the States That Have Experienced Violence in the Dobbs Fallout,” Washington Examiner, June 27, 2022, https://www.washingtonexaminer.com/restoring-america/patriotism-unity/all-states-thathave-experienced-violence-roe-wade.
  10. Dobbs, Alito, 12, citing Washington v. Glucksberg (1997), Timbs v. Indiana (2019), and McDonald v. Chicago (2010).
  11. Dobbs, Alito, 12, citing Timbs v. Indiana (2019) and McDonald v. Chicago (2010).
  12. Dobbs, Alito, 44.
  13. Dobbs, Alito, 15–24.
  14. Dobbs, Alito, 24.
  15. See Dobbs, Alito, 22; and Dobbs v. Jackson Women’s Health Organization, 597 U.S. ____ (2022), Justices Breyer, Sotomayor, and Kagan Dissenting, 13–14, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
  16. Dobbs, Alito, 21.
  17. Dobbs, Alito, 22.
  18. “Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates,” Guttmacher, October 19, 2017, https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-us-women-despite-dramatic-declinesrates.
  19. Dobbs, Alito, 32.
  20. Judith Levine, “Beyond Revenge, What Does Jane’s Revenge Want?” The Intercept, June 16, 2022, https://theintercept.com/2022/06/16/janes-revengeabortion-rights/.
  21. Dave Yost, Letter to U.S. Attorney General Merrick Garland, June 21, 2022, https://www.texasattorneygeneral.gov/sites/default/files/images/executivemanagement/AG%20Letter%20to%20Garland%20(1)_0.pdf.
  22. Elizabeth Weis, “Pregnancy-Related Deaths Could Rise 20% or More in States That Outlaw Abortion, Experts Say,” USA Today, May 4, 2022 https://www.usatoday.com/story/news/health/2022/05/04/roe-abortion-ban-pregnancydeaths/9630025002/.
  23. Mary Calderone, “Illegal Abortions,” American Journal of Public Health 50, no. 7 (July 1960), 949.
  24. 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.
  25. Jacobson, “Can States Punish Women for Traveling Out of State to Get an Abortion?”
  26. Dobbs v. Jackson Women’s Health Organization, 597 U. S. ____ (2022), Justice Kavanaugh Concurring, 10, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
  27. Nico Grant, “Google Says It Will Delete Location Data When Users Visit Abortion Clinics,” New York Times, July 1, 2022, https://www.nytimes.com/2022/07/01/technology/google-abortion-location-data.html.
  28. Hurtado and Maglione, “In a Post-Roe World.”
  29. Melissa Jeltson, “The Coming Rise of Abortion as a Crime,” The Atlantic, July 1, 2022, https://www.theatlantic.com/family/archive/2022/07/roe-illegal-abortionspregnancy-termination-state-crime/661420/.
  30. John McCormack, “Pro-Life Groups Oppose Laws Allowing Prosecution of Women Seeking Abortions,” National Review, June 27, 2022, https://www.nationalreview.com/corner/pro-life-groups-oppose-laws-allowing-prosecution-ofwomen-seeking-abortions/.
  31. Teddy Wilson, “‘Prosecution in Search of a Theory’: Court Documents Raise Questions About Case Against Latice Fisher,” Rewire News Group, February 21, 2018, https://rewirenewsgroup.com/article/2018/02/21/prosecution-search-theorycourt-documents-raise-questions-case-latice-fisher/.
  32. Dobbs v. Jackson Women’s Health Organization, 597 U. S. ____ (2022), Justice Thomas Concurring, 3, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
  33. Dobbs, Alito, 37–39.
  34. Dobbs, Kavanaugh, 10.
  35. Dobbs, Thomas, 2–3.
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