What are we to make of the US Supreme Court and Abortion?

The US Supreme Court has decided a case called Dobbs v. Jackson Women’s Health Organization, concerning a statute in Mississippi and concluded that “[t]he Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” So, regulating abortions (or not) is now a matter for each state to decide, or perhaps Congress.

In reaching this decision, the court overturns its prior decision in Roe v. Wade, 410 U. S. 113 (1973), which had famously held that there was a constitutional right to an abortion and that states could not prohibit it, and also overrules a later case called Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) that followed Roe but used a different analysis and test.  So, the consequence of Dobbs is that we are back to where we were before Roe was decided – its for the elected government in each state to decide how to handle the issue.

Here’s my initial take on the issue of abortion and the US courts:

Historical Perspective – The “right” to an abortion is a relatively new idea in western civilization.

• Abortions have always occurred, but usually on the fringes of legal and respectable medical practice.
• Abortions were prohibited or restricted in many places for centuries.  Before Roe, abortion was illegal in many, but not all US states.
• After Roe, abortion continued to be heavily regulated in most western countries.  Roe actually made the USA an outlier, with far more permissive abortion policy than western European countries (and in a camp with the likes of North Korea and a few other countries).
• The technology of abortions has changed the details over time, but the concepts were / are the same – some mechanical or chemical means to end an unwanted pregnancy.  Today in the USA, pharmaceutical or chemical abortions (e.g. – RU 486) are about equal to the number of surgical abortions.  Some say Plan B a/k/a the “morning after pill” is different and not an “abortion.”
• Abortion is common in the USA – 1990’s high was about 1.6 million abortions; today, best guesses are something less than a million a year today.  Since Roe, there have been ~60 million abortions in the USA.
• About one-half of US states have no laws about abortion or permissive laws; the other half prohibit or restrict abortions.

Strictly Legal Issues – On purely legal grounds, it looks to me like Dobbs was correctly decided.

• Roe was decided on the basis of an idea that the US constitution contains some sort of “right to privacy.”  There is no “right to privacy” in the text of the constitution, rather it is an idea that was created by the US Supreme Court, generally recognized in a 1965 case called Griswold, in which Mr. Justice Douglas said that there were “emanations” and “penumbras” from the 1st, 3rd, 4th, 5th and 9th amendments to the constitution that had the effect of protecting personal liberty with a “zone of privacy” for individuals.  In Griswold, the court found that this right to privacy meant that state laws regulating the sale of contraceptives to married couples were invalid.  Later cases looked at the 14th amendment.
• Roe held that, as a pregnancy developed, the state had an increasingly strong interest in regulating and prohibiting abortion, but in first trimester, the interests of the pregnant woman and her doctor were stronger than the interests of the state, and so the state could not regulate or prohibit abortions in the first trimester.  Not even Roe held that a person had a right to do whatever he or she wanted – the law never recognized political slogans like “my body, my choice” and “no one can tell me what to do with my body.”
• After Roe, Casey changed the test and criteria and made it even messier – rather than a classification based on trimesters, Casey said courts had to use the idea of “viability” to decide whether a regulation violated the constitution.  Since Casey, there have been a number of state laws and a number of cases trying to figure out how to draw the line between permissible and impermissible regulation.
• Roe and Casey have generally been recognized as being based on weak or faulty legal analysis.  Even pro-abortion lawyers recognized that Roe was poorly or wrongly decided, and so often based their arguments on other ideas.

Social and Cultural Considerations – Why did the Warren court dabble in emanations and penumbras? To push a social and cultural agenda.

• The 1960’s was a time of great social and cultural change in the USA.  Old ideas were being discredited and cast aside.  Activists used courts to press for changes in the legal arena, as well as the broader culture.
• During era of Warren court, the activism and breakdown of societal norms was mirrored in some ways by court decisions. The contraception cases before Roe reflected a desire by a certain segment of society to change norms.  The particular justices in the Warren court were open to using the court’s power to advance social changes that they thought were good, regardless of what legislatures and governors thought.
• Feminism of various kinds was in ascendency in the 1960s, and the legal ability to abort an unwanted pregnancy was part of women’s demands for “equality.”
• In the 1960s, and in the years since then, there has probably never been a clear and strong nationwide cultural consensus about abortion.  There are strong views on all sides of the debate.
• Even today, many people are uncomfortable with the issue and have subtle / inconsistent / confused positions.  For example, pro-abortion politicians have used slogans that abortion should be “safe, legal and rare”; anti-abortion politicians have supported laws that allowed abortions in cases of rape, incest or to save the life of the mother.  As a political matter, abortion has never been a black & white issue for most Americans.

Political Considerations Today – Since Roe , Democrats have become the pro-abortion party, and GOP has become the anti-abortion party. Constitutional protections are needed for really important topics to protect against the will of the majority; if the US constitution does not decide the issue, then some states will continue to have pro-abortion rules and other states will continue to have anti-abortion rules. It seems fair to expect that more attention will be given to these proposed laws now, since they won’t be struck down by a federal court. There are some other interesting indirect political consequences; for example, there is a reasonable empirical case to be made that a significant portion of the reduction in crime in the USA in the years since Roe was due to unwanted babies being aborted. If more unwanted babies are born going forward in states that limit abortion, will their crime rates rise 15-20 years from now when those unwanted children come of age?

Religious Considerations – As a Christian, I’m interested in what the Bible teaches about abortion.

• The Bible does not speak directly and clearly and authoritatively on abortion.
• There are, however, strong Biblical ideas relating to abortion – humans are created in the image of God and our inherent rights as a person arise out of this idea.  Because we are created in the image of God, human life has “sanctity” and “dignity.”  There is some Biblical support for the idea that life begins at conception.
• Infanticide – killing the baby after it was born, not before – was seen at various times in the Old Testament and was condemned.  By extension, ending the life of a baby in the womb can also be condemned.
• Nothing in the history of the early church suggests that it supported the crude methods of abortion then available or the old practice of infanticide.
• The Bible condemns promiscuity and honors the idea of having children and the role of the husband, wife and children.
• Today, the Roman Catholic church and the Orthodox church continue to oppose abortion, as do many US evangelical Protestant denominations and churches.  The declining and politically liberal wings of old mainline US Protestant denominations don’t oppose abortion.  Some forms of Islam also restrict abortion. 

What now? Its now up to citizens and elected leaders to decide how to regulate abortion. Consensus-building and compromise; victories and defeats, etc. All the usual stuff of political life. We are fortunate to live in a country where the voters can decide these matters.