I have written several articles on postings related to politics. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on these political events.
With the death of Ruth Bader Gingsburg the issue of Roe Vs Wade has come to the forefront again, so I felt like it was important to revisit this subject again. There is a lot of confusion about the case floating around, so I want to dispel those misconceptions. There is also a lot religious fervor surrounding this rather touchy subject I will also discuss that. This article is not an attempt to change your beliefs on the subject. However, I find that having a firm grasp of a subject helps one to make a more informed decision.
Roe v. Wade was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution. Prior to Roe v. Wade, abortion had been illegal throughout much of the country since the late 19th century.
Roe v. Wade has proved controversial, and Americans remain divided in their support for a woman’s right to choose an abortion. Since the 1973 ruling, many states have imposed restrictions on abortion rights.
Table of Contents
-Abortion Before Roe v. Wade
-Supreme Court Ruling
–Religion and Roe vs Wade
–15 Pro-Life Heroes Who Brought Us The Overturn Of Roe v. Wade
-Abortion at SCOTUS: Dobbs v. Jackson Women’s Health
-Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades
-The Long Road And Significance Of Overturning Roe
-Roe V. Wade Is History, But The Abortion Debate Reveals Rot At America’s Center
Abortion and right to privacy
-Roe in subsequent decisions and politics
–8 facts about religion and government in the United States
–The Left’s War With Biological Reality
–How Science Has Won The Abortion Debate (And Why Democrats Choose To Ignore It)
–The Legend Of The Real Jane Roe
-An Unplanned Pregnancy Didn’t Stop Me From Reaching My Goals. Now I Work To Support Other Women.
-Five Reasons To Celebrate The Overturning Of Roe
-TIMELINE OF IMPORTANT REPRODUCTIVE FREEDOM CASES DECIDED BY THE SUPREME COURT
Until the late 19th century, abortion was legal in the United States before “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy. Some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.
In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths. Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born, Protestant women.
In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country. During the 1960s, during the women’s rights movement, court cases involving contraceptives laid the groundwork for Roe v. Wade.
In 1965, the U.S. Supreme Court struck down a law banning the distribution of birth control to married couples, ruling that the law violated their implied right to privacy under the U.S. Constitution. And in 1972, the Supreme Court struck down a law prohibiting the distribution of contraceptives to unmarried adults. Meanwhile, in 1970, Hawaii became the first state to legalize abortion, although the law only applied to the state’s residents. That same year, New York legalized abortion, with no residency requirement. By the time of Roe v. Wade in 1973, abortion was also legally available in Alaska and Washington.
In 1969, Norma McCorvey, a Texas woman in her early 20s, sought to terminate an unwanted pregnancy. McCorvey, who had grown up in difficult, impoverished circumstances, previously had given birth twice and given up both children for adoption. At the time of McCorvey’s pregnancy in 1969 abortion was legal in Texas—but only for the purpose of saving a woman’s life.
While American women with the financial means could obtain abortions by traveling to other countries where the procedure was safe and legal, or pay a large fee to a U.S. doctor willing to secretly perform an abortion, those options were out of reach to McCorvey and many other women.
As a result, some women resorted to illegal, dangerous, “back-alley” abortions or self-induced abortions. In the 1950s and 1960s, the estimated number of illegal abortions in the United States ranged from 200,000 to 1.2 million per year, according to the Guttmacher Institute. After trying unsuccessfully to get an illegal abortion, McCorvey was referred to Texas attorneys Linda Coffee and Sarah Weddington, who were interested in challenging anti-abortion laws. In court documents, McCorvey became known as “Jane Roe.”
In 1970, the attorneys filed a lawsuit on behalf of McCorvey and all the other women “who were or might become pregnant and want to consider all options,” against Henry Wade, the district attorney of Dallas County, where McCorvey lived. Earlier, in 1964, Wade was in the national spotlight when he prosecuted Jack Ruby, who killed Lee Harvey Oswald, the assassin of President John F. Kennedy.
Supreme Court Ruling
In June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy. Afterward, Wade declared he’d continue to prosecute doctors who performed abortions. The case eventually was appealed to the U.S. Supreme Court. Meanwhile, McCovey gave birth and put the child up for adoption. On Jan 22, 1973, the Supreme Court, in a 7-2 decision, struck down the Texas law banning abortion, effectively legalizing the procedure nationwide. In a majority opinion written by Justice Harry Blackmun, the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment.*
The court divided pregnancy into three trimesters, and declared that the choice to end a pregnancy in the first trimester was solely up to the woman. In the second trimester, the government could regulate abortion, although not ban it, in order to protect the mother’s health. In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb, except when a woman’s health was in danger.
Legacy of Roe v. Wade
Norma McCorvey maintained a low profile following the court’s decision, but in the 1980s she was active in the abortion rights movement. However, in the mid-1990s, after becoming friends with the head of an anti-abortion group and converting to Catholicism, she turned into a vocal opponent of the procedure. Since Roe v. Wade, many states have imposed restrictions that weaken abortion rights, and Americans remain divided over support for a woman’s right to choose an abortion.
A statistical evaluation of the relationship of political affiliation to abortion rights and anti-abortion issues shows that public opinion is much more nuanced about when abortion is acceptable than is commonly assumed. The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League and the National Right to Life Committee.
Advocates of Roe describe it as vital to the preservation of women’s rights, personal freedom, bodily integrity, and privacy. Advocates have also reasoned that access to safe abortion and reproductive freedom generally are fundamental rights. Some scholars (not including any member of the Supreme Court) have equated the denial of abortion rights to compulsory motherhood, and have argued that abortion bans therefore violate the Thirteenth Amendment:
When women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.
Supporters of Roe contend that the decision has a valid constitutional foundation in the Fourteenth Amendment, or that the fundamental right to abortion is found elsewhere in the Constitution but not in the articles referenced in the decision.
Every year, on the anniversary of the decision, opponents of abortion march up Constitution Avenue to the Supreme Court Building in Washington, D.C., in the March for Life. Around 250,000 people attended the march until 2010. Estimates put the 2011 and 2012 attendances at 400,000 each, and the 2013 March for Life drew an estimated 650,000 people.
Opponents of Roe assert that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they maintain that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.
A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.
In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent or parental notification for minors to obtain abortions; spousal mutual consent laws; spousal notification laws; laws requiring abortions to be performed in hospitals, not clinics; laws barring state funding for abortions; laws banning intact dilation and extraction, also known as partial-birth abortion; laws requiring waiting periods before abortions; and laws mandating that women read certain types of literature and watch a fetal ultrasound before undergoing an abortion. In 1976, Congress passed the Hyde Amendment, barring federal funding of abortions (except in cases of rape, incest, or a threat to the life of the mother) for poor women through the Medicaid program. The Supreme Court struck down some state restrictions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).**
Some opponents of abortion maintain that personhood begins at fertilization or conception, and should therefore be protected by the Constitution; the dissenting justices in Roe instead wrote that decisions about abortion “should be left with the people and to the political processes the people have devised to govern their affairs.”
In 1995, Norma L. McCorvey revealed that she had become anti-abortion, and from then until her death in 2017, she was a vocal opponent of abortion. In a documentary filmed before her death in 2017 she restated her support for abortion, and said that she had been paid by anti-abortion groups, including Operation Rescue, in exchange for providing support.
Religion and Roe vs Wade
I want you to know that I now way support or denigrate the statements made in the following section. I have included this information strictly for educational purposes.
The Supreme Court decision in favor of McCorvey was lauded as a victory for women’s reproductive rights and eliminated any and all considerations pertaining to stages of pregnancy, fetal development, or emotional trauma to the mother. It did, however, leave room for states to enforce their own laws concerning the second and third trimesters. According to several polls, the number of legal abortions since Roe vs. Wade was passed may now be as high as 60 million. The deaths of sixty million unborn Americans should force us to think carefully about this issue. While many champion Roe vs. Wade as a great victory for women, is this the Christian viewpoint? Is this God’s viewpoint?
It was not until the late 1950s that pregnancy began to fall out of popularity in the United States. Although abortion has been practiced throughout history, the predominant view was always that children were blessings. Most families were comprised of two parents and the children born to or adopted by them. Mothers usually stayed home to raise the kids while fathers earned the paycheck.
The 1960s brought the sexual revolution and, with it, the rising fear of unwanted pregnancies. Various methods of birth control exploded on the market, but when the birth control failed, as it often did, abortion became a desired solution. Since abortions were illegal in the United States, many women sought to obtain unsafe “back-alley abortions” from untrained abortionists. Disease, sterility, and even death resulted from those choices. That gruesome history made the nation ripe for a change in abortion laws. Rather than curb the rampant sexual immorality, the country began to cry for an abortion solution.
God already had a solution, but America had ordered Him from the classrooms and from the bedrooms. The wages of sin is always death (Romans 6:23), and in 1973 the ones America chose to pay those wages were the unborn children. God tells us loud and clear that He is the Author of life (Genesis 1:27; Acts 3:15). Every human being is a unique creation designed to reflect the glory of God (Psalm 139:13–18). The Lord says, “Before I formed you in the womb, I knew you” (Jeremiah 1:5). It is God who forms a baby in the womb.
Roe vs. Wade was indeed a great victory—for sexual immorality, for selfishness, and for death mongers. It freed women from slavery to their natural, motherly instincts at the cost of their souls. God created within a woman’s heart the desire to protect and nurture her own babies (Isaiah 49:15). Regardless of how inconvenient or difficult the pregnancy may be, elective abortion is an unnatural step. The baby is not the only thing that dies. The mother will lose an integral part of herself. And she will live with that knowledge the rest of her life.
Roe vs. Wade legalized murder, because abortion is murder. The growing baby is not a part of its mother, so killing it means killing a separate entity. A distinct human being. God abhors murder, as seen in many places in Scripture (e.g., Genesis 9:5; Exodus 20:13; Revelation 22:15).
Christians should view the Roe vs. Wade decision with sadness and outrage. We should do everything within our legal power to overturn it. Ironically, Norma McCorvey (Jane Roe in the landmark decision) was befriended by a pro-life leader whose love and patience broke through her fear and anger. McCorvey eventually reversed her opinion on abortion and joined the movement to overthrow Roe vs. Wade.
It may be surprising for some to find out that in the years before the Supreme Court legalized abortion in its landmark 1973 Roe v. Wade decision, clergy were among the staunchest supporters of women seeking an abortion. Twenty-one ministers and rabbis created the Clergy Consultation Service on Abortion, an underground network that counseled women and led them to compassionate, competent doctors who provided abortion care. Although the network had only a handful of clergy at first, it grew to about 1,400 clergy operating on the East Coast during the 1960s to serve women from across the nation.
A few years after the Roe decision, a number of religious organizations voiced support for the decision, even as they acknowledged the moral complexity of abortion and honored the sanctity of life. Their views were articulated in an ecumenical study document on abortion published in 1978 and discussed in a recent article on AlterNet.
In the study document, American Baptist Churches said that, “Abortion should be a matter of personal decision.” The American Lutheran Church agreed, recognizing the “freedom and responsibility of individuals to make their own choices in light of the best information available to them and their understanding of God’s will for their lives.”
The Church of the Brethren voiced support in the document for women who, “after prayer and counseling, believe abortion is the least destructive alternative available to them.” The Brethren took this position so that women could “make their decision openly, honestly, without the suffering imposed by an uncompromising community.”
What is even more surprising than the nuanced views of these faith communities, however, is the early support for Roe from the Southern Baptist Convention. Although they are currently among the fiercest opponents of abortion, Southern Baptists supported the 1973 ruling. From their early days, Southern Baptists have been fervent believers in religious liberty and saw Roe v. Wade in this light. If the government could tell a woman what to do with her body, they reasoned, it could also tell Baptists what they could — or couldn’t — do with their religion.
Looking back on history isn’t enough. We must also focus on what to do in the present and what our vision is for the future. Groups such as the Religious Coalition for Reproductive Choice, Catholics for Choice, Faith Aloud, the Religious Institute and others are helping to point the way. Each is busy doing a piece of what is needed. These groups are:
- Arming clergy and faith leaders with compelling messages that are true to their own religious teachings and traditions
- Educating congregations to connect their religious beliefs and conscience with the moral complexities of life and to claim the sacredness of human sexuality
- Linking reproductive rights to broader social and economic justice issues such as health care, education, employment and housing — all of which affect a woman’s capacity to be a parent and to raise a child with dignity
- Challenging the harsh — and often inaccurate — rhetoric of religious conservatives that stigmatizes women and dishonors their capacity to make moral decisions
- Urging public officials to support women and families in real and meaningful ways rather than setting up roadblocks that harm their health and limit their lives
- Laying out the true meaning of religious liberty so that this core American value is not used as a smokescreen to limit women’s access to contraception and family planning
The 1978 ecumenical study document articulated the inherent value of the fetus and the importance of reducing the need for abortion. It also held up values of humility, freedom, justice, balance, compassion and responsibility.
As we envision a future of health and reproductive justice for all women, those values are more important than ever. We can add to them the words of a just-released affirmation on faith and reproductive justice from CAP’s Faith and Reproductive Justice Leadership Institute. It is a credo of belief in the dignity of all God’s people and a pledge to act — individually and collectively — so that all women can flourish and fulfill their God-given potential as individuals and as parents.
I normally entitle this section the conclusion, I changed it this time, because I don’t want to sway people towards any one view. Your background, moral compass and religion will help you make the right decision for you. So I have included a background on the history of abortion, the case, the people involved in the case, subsequent related cases on abortion, and how various religions view the case and ramifications. I have also included how religion and our government interact. I hope this information helps to explain Roe vs Wade. Now I will add my opinion of the case. It was a landmark case, however I believe it was flawed from the onset. They could have mad it a definitive decision, but the justices chose not to do so. They had to have known that their decision was not going to be the last word on the subject. That is why I don’t know why the worded it the way they did. While I believe that women should have the right of choice, abortion should not replace poor family planning. People take the act of sex too lightly. An unwanted pregnancy can ruin a life. It can also be seen as a gift. I believe too many people take the decision too lightly. When I was younger and much dumber, I asked a young lady to marry me, we were engaged and subsequently lived together for a year. That lady had a younger sister who was 22 years old at the time. She had already had 3 abortions under her belt. She obviously was not taking birth control seriously and abortion seriously as well. I never brought up the subject to her, but I always questioned her decision making process. To make a long story short, we broke up after a year, and I have never looked back. I think I dodged a bullet with that one. There was no medical reason for the abortions, she was a healthy young female.
I know there are always two sides of the story, and lie is not black and white it is many shades of gray. Now do I think a 13 or 14 year old young lady pay the price of poor decision and have to raise a child, no I am not. But if the young girl is healthy enough and physically mature enough to carry to term, why help out a barren couple by putting the baby up for adoption? It is something to think about. Obviously if the young lady’s health will be in jeopardy with carrying the baby to term, than there is only one choice and that is abortion. Also abortion should be an option for rape cases and incest cases. Can you imagine what it would be like to be forced to carry a baby for 9 months that ws the result of a rape? I can’t. I also believe that the mother should have the option for abortion if her health is in jeopardy. Roe vs Wade allowed for these cases. It broke the pregnancy into 3 trimesters. The first trimester, the choice of abortion was solely up to the woman. Than they screwed up. They said the government could step in on the second trimester. What the hell were they thinking? This has opened up the abortion issue to a whole hornets nest. The third trimester is ok, because you should not be having an abortion that late unless the health of the mother is at stake. It is just too unsafe for regular abortions to be allowed. And besides I think 6 months is enough time to decide whether or not you want to have the baby. One thing that must be remembered, an abortion is forever, this is a decision that you will have to live with for the rest of your life.
So now, in 2020 we are still dealing with Roe vs Wade, 47 years later. Millions of dollars have spent needlessly in cases because the Supreme Court did not have the fortitude to formulate a definitive ruling. Isn’t that what the Supreme Court is for?
15 Pro-Life Heroes Who Brought Us The Overturn Of Roe v. Wade
For the last 50 years there has seemed no star more firmly fixed in the political firmament of American politics than Roe v. Wade. The 1973 Supreme Court decision which invented a constitutional right to abortion has been a contentious third rail of our culture ever since. This week we learned from a leaked draft of an upcoming Supreme Court decision that Roe is poised to be overturned. Many, even among those most dedicated to the preservation of life, never thought they would see this day come.
Thousands upon thousands of Americans and others have fought for five decades to bring about the end of abortion in the United States. Below are 15 of them who deserve special attention in this apparent moment of victory. This list will doubtless leave out important contributions, but be that as it may, these 15 heroes of the pro-life movement deserve recognition and celebration on this tremendous occasion for America.
There may never have been a happier hero of the pro-life movement and of freedom for women to pursue their goals, even those of being a homemaker, than Schafly. As an attorney and activist she drew both love and ire, becoming a symbol of conservative American women. Schafly died in 2016, at the age of 92, not quite making it to the promised land of Roe being overturned, but few if any people deserve more credit for that day arriving.
Thorn, who died this year, was the founder of Project Rachel and the executive director of the National Office of Post-Abortion Reconciliation & Healing located in Milwaukee, Wisconsin. Her deep understanding of the long-lasting emotional toll that abortion has on both women and families played a key role in shaping the national debate.
Pope John Paul II
Pope John Paul II said in 1995 that euthanasia and abortion are “crimes which no human law can claim to legitimize.” One of the most powerful Catholic figures of the 20th Century, the Polish Pope was equal parts loving and unequivocal in his call to end abortion. In 2013 he became a saint of the Church, in no small part due to his dedication to life.
Abby Johnson has fought against abortion with the zeal of a convert since resigning her job at Planned Parenthood after witnessing an abortion taking place in 2009. Since then she has been a tireless champion of the unborn and a key witness into the industry that murders millions. She remains at the forefront of the anti-abortion fight.
God works in mysterious ways, and then there’s Donald Trump. The former billionaire playboy, not exactly widely known as a pillar of moral rectitude, appointed three of the five Justices set to overturn Roe. Trump focused hard on choosing Justices specifically for the purpose of overturning Roe, and the effort has paid off. This decision is a lynchpin in Trump’s legacy.
Nellie Jane Gray
In 1974, just after Roe was decided, Nellie Gray founded the annual March for Life in Washington DC. Even to this day thousands of souls gather, not just in DC, but around the nation each year to reaffirm their commitment to life. She has also been credited with coining the term “pro-life,” the clarion rally cry of an entire movement.
Nat Hentoff spent 50 years as a columnist for the Village Voice. It’s an unlikely place to find a pro-life activist, but throughout his days Hentoff was a true champion of the unborn. His secular approach to the issue of abortion opened the doors to non-religious pro-lifers and his masterful style as a writer brought thousands on board who might otherwise have stood on the sidelines.
It was Reagan who famously quipped, “I’ve noticed that everyone who is for abortion has already been born.” The Gipper did not start off as a champion for life. In 1967 as governor of California, he signed a law liberalizing abortion. But later in life, and certainly by the time he occupied the White House in the 1980s, Reagan was a stalwart force against the evil of abortion.
Maria McFadden Maffucci
As editor of The Human Life Review, founded by her father JP McFadden in 1975, Maffucci has given space for some of the most important journalism and legal opinion writing in the pro-life movement. A tremendous activist and gifted publisher, she has been a guiding light for generations of Americans dedicated to saving the unborn. Many of the documents and ideas that ultimately paved the way for the overturn of Roe are found in the pages of The Human Life Review.
In 2013 Daleidan founded the Center for Medical Progress, and broke a huge national news story about Planned Parenthood selling the baby parts of aborted fetuses for medical research. For his trouble he was slandered by the press who falsely claimed that his video evidence was manipulated and edited. Since then he has thrived in a firestorm of legal battles and remains a key voice for the unborn.
Niece of Dr. Martin Luther King Jr., King became a pro-life advocate in the 1980’s after having had two abortions herself. Her personal story of the pain which the procedures caused her are honest and heartbreaking. Always leading with the human face of the movement, King has been a force for good, emblematic of the humility and fervency in the voice and actions of her uncle.
Bob Casey Sr.
The second most important Supreme Court decision regarding abortion is Planned Parenthood v. Casey, with Bob Casey Sr., former governor and senator of Pennsylvania, as the Casey in question. In 1989 he ushered and signed legislation restricting abortion in the Keystone State and eventually won the lawsuit filed against him. For years Casey was the leading Pro-Life Democrat in America, though those are few and far between today, his legacy on the issue is secure.
Founder of the Abortion Survivors Network, Ohden has woven her personal story of surviving abortion, and eventually finding her birth mother into a tale that has inspired countless pro-life activists. Through Ohden’s work we see how deeply individual each abortion is, and keep in our hearts the ultimate need to protect every single human life.
Holloway is the founder of Pro-Black Pro-Life. Her focus on stemming the tide of abortion in the black community has brought her around the country, educating her listeners about the power of motherhood and the civil rights issue of ending abortion. Her important work continues today.
Bowman created the Right to Life Foundation in Britain to fight for the lives of the unborn. A Catholic who converted from Judaism, she was made a Dame of St. Gregory the Great by Pope John Paul II. An important member of the international pro-life movement, her contributions will never be forgotten.
These are just a handful of the millions of people whose fight for life is finally paying off as we look towards the overturn of Roe. May they serve as an inspiration to us all.
Abortion at SCOTUS: Dobbs v. Jackson Women’s Health
|Leaked Draft Opinion|
|On May 2, 2022, Politico published a leaked draft of the Supreme Court’s decision in Dobbs v, Jackson Women’s Health that would overturn Roe v. Wade and Planned Parenthood v. Casey and eliminate the federal standard regarding abortion access. The Supreme Court acknowledged the authenticity of the draft but stated “it does not represent a decision by the Court or the final position of any member on the issues in the case.”|
Abortion is among the most contentious issues in the country today. On December 1st, the Supreme Court will hear the first abortion case since Justice Amy Coney Barrett was seated and cemented a solid 6-3 conservative majority on the bench. The case under consideration, Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, involves a Mississippi law banning all abortions over 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. In this case, Mississippi is asking the Court to overturn the long-standing precedent of Roe v. Wade. While the Supreme Court has considered other abortion cases involving state regulations, this is the first case that the high court has taken in which a state is directly asking the Court to overturn the constitutional right to abortion. This issue brief provides background on the legal challenges to the Mississippi law in the context of the Supreme Court abortion precedents, addresses the intersections with the litigation that has arisen from S.B. 8, the Texas 6-week abortion ban, and explains the potential outcomes and how they could impact access to abortion around the country.
Mississippi Law and Lower Court Decisions
In 2018, Mississippi enacted HB 1510, the Gestational Age Act, which bans all abortions after 15 weeks since the first day of the last menstrual period (LMP) except in medical emergencies and in cases of severe fetal abnormality, and without an exception for pregnancies resulting from rape or incest. Mississippi is asking the Court to allow states to ban abortions at a point much earlier than the current viability standard established by Roe v. Wade, a point where the pregnancy cannot survive outside of the pregnant person’s uterus, typically understood to be between 24 and 28 weeks of pregnancy. On March 19, 2018, the same day the Governor signed the bill, and when it was set to take effect, Jackson Women’s Health, the only abortion provider in Mississippi, challenged the law in federal court. The US District Court for the Southern District of Mississippi and then the 5th Circuit Court of Appeals both struck the law down as unconstitutional. The State then appealed to the Supreme Court, which accepted the case for review this term.
The Supreme Court accepted this case to review “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Mississippi is not contending that 15 weeks gestation is a point in pregnancy when a fetus is viable outside the womb, but rather is asking the Supreme Court to either overturn the constitutional right to abortion or to allow states to ban some pre-viability abortions if it does not “burden a substantial number of women.” Although Roe v. Wade does not permit states to ban pre-viability abortions, some state laws that have pre-viability bans later in pregnancy have not been challenged in court. For example, in 2014 Mississippi passed a law banning abortions at 20 weeks LMP with an exception for medical emergency and a fatal fetal anomaly. This law has not been challenged and is currently in effect. Jackson Women’s Health, the only abortion provider in Mississippi, only provides abortions up to 16 weeks. Sixteen states have laws banning abortion at 22 weeks in effect. None of these laws have been challenged. North Carolina’s law banning abortion after 20 weeks was challenged and struck down as unconstitutional by the 4th Circuit Court of Appeals.
Background on Previous Court Decisions on Abortion
To understand this case, it is important to review the Supreme Court’s prior decisions, particularly those that have resulted in the Court ruling on how an individual’s constitutional right to abortion is balanced with a state’s right to protect unborn life. In 1973, the Supreme Court’s Roe v. Wade decision established the constitutional right to abortion before the pregnancy is considered to be viable, that is, can survive outside of a pregnant person’s uterus. The Supreme Court has grappled with how to best balance a state’s legitimate interest in protecting the health of pregnant people, and the “potentiality of human life” with a person’s constitutional right to privacy, which includes the right to terminate a pregnancy. As a result of the Court’s decision in Roe, states have not been permitted to issue bans on abortion before viability.
|Supreme Court’s Explanation of Undue Burden in Casey v. Planned Parenthood|
|“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. Under the current precedent, a statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”|
However, the Supreme Court’s 1992 decision for Planned Parenthood v. Casey established the right of states to regulate abortion services before viability as long as the regulation does not place an “undue burden” on women seeking an abortion.
“Undue burden” is a shorthand used when a state regulation has been found to have the purpose or effect of placing a substantial obstacle in the path of a person seeking an abortion. The Casey Court stated that the proper standard is “whether in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” This concept of the “large fraction of cases” was addressed and reinforced in the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt in which the denominator in the undue burden question was defined as “the number of [patients] for whom the restriction is an actual rather than irrelevant restriction.”
Since the Casey decision in 1992, many states have enacted a wide range of restrictions such as counseling, ultrasound and waiting period requirements, parental notification and consent requirements, restrictions on insurance coverage for abortion, and regulations specific to facilities and clinicians providing abortions. In Whole Woman’s Health, the Supreme Court clarified that abortion restrictions are only constitutional if they further a valid state interest and have benefits that outweigh the burdens placed on women seeking abortions. The benefits and burdens of the laws must be based on credible evidence. The Court emphasized that the previous standard established in Planned Parenthood of Southeastern PA. v. Casey “[u]necessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
The rule announced in Casey “requires that courts consider the burdens a law imposed on abortion access together with the benefits those laws confer.” However, in his concurrence in June Medical Services, Chief Justice Roberts signaled that the standard by which the Court will evaluate an undue burden is in flux. Chief Justice Roberts suggests that the Court should analyze the constitutionality of abortion laws by asking whether the law places a substantial obstacle in the path of a woman seeking an abortion, without balancing the burdens with the benefits of the law, as the Court did in Whole Woman’s Health. In future cases, under a new standard that does not review whether the state law in question yields any benefits, the Court may be willing to allow states to enact additional restrictions similar to admitting privileges, with no evidence that the restrictions benefit people seeking abortions, as long as the restriction does not place a substantial obstacle. In addition, the Court may disavow the precedent also set in Whole Woman’s Health that courts can look beyond the legislature’s declaration of benefit to women and review medical and scientific evidence about whether the law provides a benefit to women.
Mississippi is Asking the Supreme Court to Overturn the Constitutional Right to Abortion Established by Roe v. Wade
Mississippi contends that Roe and Casey were both decided incorrectly. As argued in Mississippi’s brief to the Supreme Court: “Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context.”
|Roe v. Wade established that states could ban abortion at viability|
|“With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the matter.”|
Mississippi contends that the Court’s viability standard set in Roe v. Wade is unsatisfactory and does not allow the state to protect unborn life or maternal health. The state claims its interest in protecting potential life and women’s health is the same before and after viability, but the standard set in Roe prohibits it from protecting life before viability. Mississippi also contends that Roe is outdated: “[N]umerous laws enacted since Roe— addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life.” Furthermore, Mississippi argues abortion is not necessary for women to participate equally in economic life because contraception is widely available. However, as Jackson Women’s Health states in their brief, contraception is not universally available and is not fail-safe. “Further, many indicators of gender equality continue to lag behind the ideal Mississippi imagines. Pregnancy and caregiver discrimination persist and remain difficult to root out.”
Jackson Women’s Health contends that viability is the central principle in Roe and Casey and there is no basis for overruling the viability line. Mississippi’s argument “was raised in Casey, and the Court gave careful regard to the state’s asserted interests, including in fetal life. Having considered each of the state’s arguments, the Court reaffirmed that the viability line strikes a principled and workable balance between individual liberty and any countervailing government interests.” Under the legal principle of stare decisis, the Court is obligated to uphold precedents when there is no factual or legal basis to overrule them.
As an alternative to overturning the constitutional right to abortion, Mississippi is asking the Court to remove viability as the line for when abortion can be banned
Mississippi is asking the Court to allow states to ban abortions at a point much earlier than the current viability standard established by Roe v Wade, a point where the pregnancy cannot survive outside of the pregnant person’s uterus. While the undue burden standard established in Casey has been applied to abortion regulations, it has never been applied to pre-viability abortion bans. Mississippi is asking the Court to apply the undue burden standard in this case and conclude that the law is constitutional. Mississippi claims the 15-week ban does not impose a substantial obstacle to “a significant number of women” seeking abortions. Jackson Women’s Health, the only abortion provider in Mississippi, provides abortions up to 16 weeks. Mississippi cites that at most 4.5% of the women who obtain abortions from Jackson Women’s Health did so after 15 weeks gestation.
In their brief, Jackson Women’s Health contends that the “State’s brute number crunching is at odds with the recognition of constitutional rights in general. The very essence of a constitutional right is that the government cannot outright prohibit a certain subset of people no matter how small from exercising that right.” “For most of the tens of thousands of people each year who obtain an abortion after 15 weeks, however, accessing abortion care earlier is not possible. More than half of second-trimester abortion patients miss the window for a first-trimester abortion simply because of delays in recognizing or suspecting they are pregnant. Late recognition of pregnancy is especially common for young people, people using contraceptives, or people who are pregnant for the first time. Others who seek abortion in the second trimester do so because health conditions develop or worsen as the pregnancy progresses, or because of significant changes in their life over the course of their pregnancy. Second-trimester patients may also not seek abortion care earlier because they are taking time to consult with family or a health professional before making this deeply personal decision.”
If the Court adopts Mississippi’s contention that the undue burden standard can be applied to a pre-viability ban, and that the law is constitutional if does not impact a substantial number of people seeking abortions in Mississippi, the Court will need to estimate how many people the ban does impact. This estimate, however, could be derived in several different ways. In fact, the share of women in Mississippi who get abortions after 15 weeks is very likely an undercount of Mississippi residents who obtained abortions after 15 weeks. This is because there are no providers in Mississippi who offer abortion services after 16 weeks, and therefore must travel out of state to obtain their abortions. According to the CDC, many of the patients who obtain abortions in the states that border Mississippi –16% of abortions in Alabama and in Louisiana, and 19% of abortions in Tennessee — were obtained by out-of-state residents. If any of these patients came from Mississippi, they would not be reflected in the Mississippi abortion statistics.
At stake is whether the Court will continue to uphold the standard it set with the Roe v Wade and Planned Parenthood v. Casey decisions. Over the years, subsequent rulings have expanded the ability of states to impose restrictions on pre-viability abortions, but this case could change the viability standard and permit states to ban some or all pre-viability abortions. If the Supreme Court allows the Mississippi law to stand, no matter the rationale they use to arrive at that decision, it will be effectively overturning Roe and Casey. While the Court may try to frame their ruling as in line with precedent, there is likely no way for the Court to uphold a state’s pre-viability ban without overruling years of precedent. Below we explain three possible outcomes of this case.
Figure 1: Abortion and SCOTUS: What might a conservative majority do to abortion rights?
First Possible Decision: The Court Overrules Roe v. Wade Allowing States to Ban All Abortions
If the Supreme Court overturns Roe v. Wade and allows states to ban or restrict abortion before viability, 17 states have laws that are intended to immediately ban abortion; four of these states have a law banning abortion on the books that predates Roe v. Wade and thirteen states have expressed the intent to limit abortion to the maximum extent permitted by federal law (Figure 2). Sixteen states and DC have laws protecting abortion access. Eight states (see Table 1) have State Supreme Court decisions recognizing the right to abortion under the state constitution. Three states (GA, OH and SC) have 6 week bans that courts have temporarily blocked but could become effective soon after a decision overruling Roe v. Wade. A Michigan judge has temporarily blocked the enforcement of the pre-Roe ban while litigation challenging it proceeds.
If the Supreme Court overturns Roe, then some of these states and others without laws might pass state laws banning pre-viability abortions. This would likely lead to a raft of new cases that would be challenged in the state courts. It would be up to the State Supreme Court to either re-affirm the previous decision that the state constitution protects abortion or overrule that decision.
Second Possible Decision: The Court Overturns Roe v. Wade establishing a new standard for the circumstances in which states may ban pre-viability abortions
The Supreme Court has never evaluated a state ban on abortions pre-viability using the undue burden standard. If the Court establishes a new standard to evaluate an undue burden and does not allow for states to ban all abortions, the Court’s decision may open the door to new state gestational bans as well as new state regulations. This could create the need for the Court to establish the parameters for a fact-based inquiry for each state’s gestational ban to determine how many women seeking abortions would be burdened. If the Court only looks at the number of women who have successfully accessed abortion services in states with many abortion restrictions, they may be undercounting the number of women who sought abortion services and went out of state or were ultimately unable to obtain abortions. Depending on how the Court rules, we may see a flood of future cases make their way to the Supreme Court to try to test how early in pregnancy states can ban abortions in the absence of a full ban. Ten states have passed six-week bans, and two others have passed laws fully banning all abortions at conception.
Third Possible Decision: The Court Re-affirms Roe and Casey
While it is impossible to predict the outcome of a Supreme Court case, the Court appears unlikely to re-affirm Roe and Casey, given the 6 to 3 conservative majority. The Supreme Court’s willingness to hear this case, rather than affirming the lower court’s ruling without review, may signify that the Court is ready to modify the long-standing precedent that states may not ban abortions before viability. However, because only 4 justices need to vote to review a case, sometimes the Court will accept a case and then affirm the lower court’s decision.
There are other indications that the Court might be poised to change the abortion precedents. Most recently, in a 5-4 decision the Court refused to block a Texas law, effectively halting most abortion policies in the state, while the litigation challenging the Texas law works its way through the courts.
|How does Texas SB8 relate to the Dobbs Case?|
|While the Dobbs case made its way to the Supreme Court through the usual appeal process and request for the Court to hear the case, the Court also issues emergency orders in what is called the “shadow docket.” In these situations, the Court does not hear an oral argument. In May of 2021, Texas enacted a law, effective September 1st, 2021, banning nearly all abortions after 6 weeks, deputizing individuals to enforce the law by suing any person that provides, or helps a person obtain an abortion after 6 weeks. Abortion clinics in Texas sued on the constitutionality of this law, and the case made its way to the 5th Circuit Court of Appeals, which refused to block the law. The clinics then brought an emergency request to the Supreme Court to block the law which the Court denied on procedural grounds. While the impact of the Court allowing the law to go into effect is that people in Texas cannot access abortion, the Court wrote: “this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” On October 22, 2021, the Court denied the request from the US Department of Justice to block the law. The Court heard oral argument on November 1, 2021 to consider the case brought by the Texas clinics challenging the unique enforcement provisions, and the ability of the Department of Justice to challenge the law, but not to consider the constitutionality of banning abortion pre-viability.While there is much speculation about the Court’s decisions to allow the Texas law to take effect and remain in effect, even though it bans nearly all abortions, predicts the Court’s decision in Dobbs, the Court was not directly considering the constitutionality of pre-viability abortion bans as the Court will have to do in Dobbs.|
The Supreme Court is hearing Dobbs at a time when state and federal actions have raised the stakes on the future of abortion access. In 2021, 19 states have enacted over 100 restrictions, including 12 abortion bans. People in Texas are effectively living in a post-Roe state where there is essentially no access to abortion. President Biden has endorsed, and the House of Representatives has passed The Women’s Health Protection Act. Although unlikely to secure enough votes to pass the US Senate, this law would statutorily protect a person’s ability to seek an abortion and a health care providers’ right to provide abortion. Access to safe legal abortions will likely increasingly depend on where you live. If the Supreme Court allows states to ban abortion pre-viability, then the national divide in access to abortion care will be intensified. The significance of this case and the possible ramifications has prompted a broad range of abortion rights advocates and opponents alike to weigh into whether the Court should overturn Roe by submitting amicus briefs. The Court’s decision is expected in June 2022, just 6 months before the Congressional mid-term election.
Table 1: State Policies and Court Decisions Regarding the Legal Status of Abortion (Updated June 17, 2022)
|State||Status||Link to Code / Court Decision||State Gestational Limits ¹||Link to Gestational Limit Code / Court Decision||Number of Abortion Restrictions per State (Out of 7*) ²|
|Alabama||Pre-Roe Abortion Ban ³||Alabama Code Title 13A. Criminal Code § 13A-13-7 (Enacted 1852, Last Amended 1975)||Yes, one enjoined ban beginning at conception & one ban in effect at 22 weeks LMP||The enjoined conception ban: Alabama Code Title 26 Criminal Code § 26-23H-1 – § 26-23H-8 (Enacted 2019). This ban comes from Alabama House Bill 314 (Enacted 2019) which is currently enjoined by Court order in Robinson et al v. Marshall, et al., No. 2:2019cv00365 (M.D. Ala. 2020). The 22 week LMP ban which is in effect is found in Alabama Code Title 26 Criminal Code § 26-23B-1 to 26-23B-9 (Enacted 1975; Last Amended 2011)||7|
|Alaska||State Constitutional Right Decided by State Supreme Court||State of Alaska v. Planned Parenthood of Alaska 28 P.3d 904 (Alaska 2001)||None||1|
|Arizona||Pre-Roe Abortion Ban||Arizona Revised Statutes §§ 13-3603, 13-3604, 13-3605 (Enacted 1901, Last Renumbered 1977)||Yes, one enjoined ban at 20 weeks LMP||Arizona Revised Stat. Ann. §36-2159 (Enacted 2012) enjoined by Paul A. Isaacson, M.D. et al. v. Tom Horne, Attorney General of Arizona, et al. 716 F.3d 1213 (9th Cir. 2013)||6|
|Arkansas||State Law Banning Abortion if Roe is Overturned, Effective After Attorney General Certification||Ark. Code Ann. § 5-61-301 – 304 (Enacted 2019)||Yes, three enjoined bans at conception, 12 weeks LMP, and 18 weeks LMP, & one ban in effect at 22 weeks LMP||The enjoined conception ban: Arkansas Code Annotated § 5-61-404 (Enacted 2021). This ban comes from Arkansas Senate Bill 6 (Enacted 2021) which is currently enjoined by Court order in Little Rock Family Planning Services 4:21-cv-00453-KGB (E.D. Arkansas 2021). The enjoined 12 week ban: Arkansas Code Annotated § 20-2-16-1304 (Enacted 2013). This ban comes from Arkansas Senate Bill 134 (Enacted 2013) which is currently enjoined by Edwards v. Beck 8 F. Supp. 3d 1091 (E.D. Arkansas 2014). The enjoined 18 week ban: Arkansas Code Annotated § 20-2-16-2004 (Enacted 2019). This ban comes from Arkansas House Bill 1439 (Enacted 2019) which is currently enjoined by Little Rock Family Planning Servs. v. Rutledge 397 F. Supp. 3d 1213 (E.D. Arkansas 2019). The 22 week LMP ban which is in effect: Arkansas Code Annotated § 20-2-16-1405 (Enacted 2013)||7|
|California||State Law Protecting the Right to Abortion||California Code, Health and Safety Code – HSC § 123462 (Enacted 2002)||None||0|
|Colorado||State Law Protecting the Right to Abortion||Colorado Revised Statutes §§ 25-6-401 — 25-6-406 (Enacted 2012)||None||2|
|Connecticut||State Law Protecting the Right to Abortion||Connecticut House Bill 581 (Enacted 2022), Connecticut General. Statutes § 19a-602(a) (Enacted 1990)||None||0|
|Delaware||State Law Protecting the Right to Abortion||Delaware Code Volume 81 Chapter 35 (Enacted 2017) from Delaware Senate Bill 5 (Enacted 2017)||None||2|
|District of Columbia||State Law Protecting the Right to Abortion||D.C. Law 23-90 (Enacted 2020)||None||1|
|Florida||State Constitutional Right Decided by State Supreme Court||North Florida Women’s Health and Counseling Services, Inc. v. State of Florida, SC01-843 (Florida 2003)||Yes, one ban in effect at 24 weeks LMP & one ban scheduled to take effect at 15 weeks LMP||15 week ban, in effect July 1, 2022: Florida Statute Annotated § 390.0111 (Enacted 1978; Last Amended 2014)||7|
|Georgia||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one enjoined ban at 6 weeks LMP & one ban in effect at 22 weeks LMP 4 ⁴||The enjoined 6 week ban: Georgia Code Ann. § 16-12-5-141 (Enacted 1968, Amended 2019). This ban comes from GeorgiaHouse Bill 418 (Enacted 2019) which is currently enjoined by SisterSong Women of Color Reproductive Justice Collective v. Kemp, No. 1:19-CV-02973-SCJ (Georgia 2019). The in-effect 22 week LMP ban: Georgia Code Annotated § 16-12-141(c) (Enacted 1973; Last Amended 2012)||6|
|Hawaii||State Law Protecting the Right to Abortion||Hawaii Revised Statutes Title 25 § 453-16 (Enacted 2006)||None||0|
|Idaho||State Law Banning Abortion if Roe is Overturned, Effective 30 Days After Decision||Idaho Senate Bill 1385 (Enacted 2020), which would go into effect 30 days following the issuance of a Supreme Court decision overruling Roe v. Wade or the adoption of an amendment to the US Constitution that allows the states their authority to prohibit abortion.||Yes, one enjoined ban at 6 weeks LMP||Idaho Senate Bill 1309 (Enacted 2022) enjoined by Planned Parenthood of Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho (Idaho 2021)||5|
|Illinois||State Law Protecting the Right to Abortion||Illinois Compiled Statues 775 § 55 (Enacted 2019)||None||0|
|Indiana||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one ban in effect at 22 weeks LMP||Indiana Code Annotated §§ 16-34-2-3 (Enacted 1997)||7|
|Iowa||No Policy in Effect Regarding the Legal Status of Abortion||Planned Parenthood of the Heartland v. Reynolds (Iowa 2022)||Yes, one enjoined ban at 6 weeks LMP & one ban in effect at 22 weeks LMP||The enjoined 6 week ban: Iowa Code § 146C.2 (Enacted 2018). This ban comes from Iowa Senate Bill 359 (Enacted 2018) which is currently enjoined by Court order in Planned Parenthood of the Heartland v. Kim Reynolds EQCE 83074 (P.C.Iowa 2019). The 22 week LMP ban which is in effect: Iowa Code § 146C.2 (Enacted 2017)||5|
|Kansas||State Constitutional Right Decided by State Supreme Court||Hodes & Nauser, MDS, PA v. Schmidt, 52 Kan. App. 2d 274 (Kansas 2019)||Yes, one ban in effect at 22 weeks LMP||Kansas Statutes Annotated § 65-6722 (Enacted 2019)||6|
|Kentucky||State Law Banning Abortion if Roe is Overturned, Effective Immediately After Decision||Kentucky Statutes § 311.772 (Enacted 2019)||Yes, two enjoined bans at 6 weeks LMP and 15 weeks LMP & one ban in effect at 22 weeks LMP||The enjoined 6 week ban: Kentucky Statutes § 311.7706 (Enacted 2019). This ban comes from Kentucky Senate Bill 9 (Enacted 2019) which is currently enjoined by Court order in Women’s Surgical Center v. Beshear, 2019 WL 1233575 (W.D.Ky. 2019). The enjoined 15 week ban: Kentucky House Bill 3 (Enacted 2022) which is currently enjoined by Court order in Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky et. al vs. Daniel Cameron et. al, 2022 Civil Action No: 3:22-cv-198-RGJ (W.D.Ky. 2022). The 22 week LMP ban which is in effect: Kentucky Revised Statutes Annotated §§ 311.782 (Enacted 1980, Last Amended 1982)||7|
|Louisiana||State Law Banning Abortion if Roe is Overturned, Effective Immediately After Decision||Louisiana Constitution Article 1 § 20.1 (Enacted 2020), Louisiana Revised Statutes §§ 40-1061-5 (Enacted 2006)||Yes, two enjoined bans at 6 weeks and 15 weeks & one ban in effect at 22 weeks LMP||The enjoined 6 week ban: Louisiana Revised Statutes Title 40 § 1061.1.3 (Enacted 2019). This ban comes from Louisiana Senate Bill 184 (Enacted 2019) which is currently enjoined by Court order in Jackson Women’s Health Organization v. Dobbs 3:18-cv-171-CWR-FKB (5th Circuit 2019). This case concerns a similar 6 week LMP ban in Mississippi. The decision by the 5th Circuit to enjoin the Mississippi ban also applies to the Louisiana ban as the Mississippi and Louisiana both fall under the jurisdiction of the 5th Circuit. The enjoined 15 week ban: Louisiana Revised Statutes § 14:87 (Enacted 2018). This ban comes from Louisiana Senate Bill 181 (Enacted 2018) which is currently enjoined by Jackson Women’s Health Organization v. Dobbs 18-60868 (5th Circuit 2019). This case concerns a similar 15 week LMP ban in Mississippi and will be heard at the Supreme Court on December 1st, 2021. The decision by the 5th Circuit to enjoin the Mississippi ban also applies to the Louisiana ban as the Mississippi and Louisiana both fall under the jurisdiction of the 5th Circuit. The 22 week LMP ban which is in effect: Louisiana Revised Statutes Annotated § 40:1061.1 (Enacted 2012)||7|
|Maine||State Law Protecting the Right to Abortion||Maine Revised Statutes Annoted Title 22, § 1598 (Enacted 1979, Amended 1993)||None||0|
|Maryland||State Law Protecting the Right to Abortion||Maryland Code Annotated, Health-General § 20-209 (Enacted 1991)||None||1|
|Massachusetts||State Law Protecting the Right to Abortion||Massachusetts General Laws § 1-XVI-112-12L (Enacted 2021)||Yes, one ban in effect at 24 weeks LMP||Massachusetts General Laws Annotated Title XVI § 12M (Enacted 1974; Renumbered 1977)||2|
|Michigan||No Policy in Effect Regarding the Legal Status of Abortion||Michigan has a pre-Roe ban here, Michigan Compiled Laws Annotated § 750.14 (Enacted 1931), but it is currently enjoined by Court order in Planned Parenthood of Michigan et. al. v. Attorney General of the State of Michigan (Michigan 2022).||None||6|
|Minnesota||State Constitutional Right Decided by State Supreme Court||Women of Minnesota v. Gomez, 542 N.W.2d 17 (Minnesota 1995)||None||3|
|Mississippi||State Law Banning Abortion if Roe is Overturned, Effective 10 Days After Attorney General Certifies the Decision||Mississippi. Code Annotated § 41-41-45 (Enacted 1952, Amended 1997)||Yes, two enjoined bans at 6 weeks LMP and 15 weeks LMP & one ban in effect at 20 weeks LMP||The enjoined 6 week ban: Mississippi Code Title 41 Public Health § 41-41-34.1 (Enacted 2019). This ban comes from Mississippi Senate Bill 2116 (Enacted 2019) which is currently enjoined by Court order in Jackson Women’s Health Organization v. Dobbs 3:18-cv-171-CWR-FKB (5th Circuit 2019). The enjoined 15 week ban: Mississippi Code Title 41 Public Health § 41-41-191 (Enacted 2018). This ban comes from Mississippi House Bill 1510 (Enacted 2018) which is currently enjoined by Jackson Women’s Health Organization v. Dobbs 18-60868 (5th Circuit 2019). This case is pending at the Supreme Court to be heard on December 1, 2021. The 20 week LMP ban which is in effect: Mississippi Code Title 41 Public Health § 41-41-139 (Enacted 2014)||7|
|Missouri||State Law Banning Abortion if Roe is Overturned, Effective Upon Attorney General or Governor Notification or Adoption of Resolution by General Assembly that Roe is Overturned||Missouri Revised Statutes 188.017 (Enacted 2019)||Yes, one enjoined ban at 8 weeks LMP||This enjoined ban begins at 8 weeks LMP and cascades up to 20 weeks LMP — the statutes are respectively bans at 8 weeks, 14 weeks, 18 weeks, and 20 weeks LMP. Missouri Statutes § 188.056, 188.057, 188.058, 188.375 (Enacted 2019) were enjoined by court order in Reproductive Health Services of Planned Parenthood of the St. Louis Region v. Parson, 2019 WL 4740511 (W.D. Missouri 2019).||6|
|Montana||State Constitutional Right Decided by State Supreme Court||Armstrong v. State of Montana, 296 Mont. 361, (Montana 1999)||None||2|
|Nebraska||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one ban in effect at 22 weeks LMP||Nebraska Revised Statutes §§ 28-3, 102 – 111 (Enacted 2010)||7|
|Nevada||State Law Protecting the Right to Abortion||Nevada Revised Statute § 442.250 (Enacted 1990)||Yes, one ban in effect at 24 weeks LMP||Nevada Revised Statutes Annotated § 442.250 (Enacted 1973; Last Amended 1985)||2|
|New Hampshire||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one ban in effect at 24 weeks LMP||New Hampshire Revised Statutes Amended §§ 329 – 44 (Enacted 2021)||3|
|New Jersey||State Law Protecting the Right to Abortion||New Jersey Revised Statute § 10.7-2 (Enacted 2022)||None||0|
|New Mexico||No Policy in Effect Regarding the Legal Status of Abortion||None||0|
|New York||State Law Protecting the Right to Abortion||New York Public Health § 2599-aa (Enacted 2019)||None||0|
|North Carolina||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one enjoined ban at 20 weeks LMP||North Carolina General Statute Chapters § 14-45.1 (Enacted 1967, Last Amended 2016) enjoined by Bryant v. Woodall, 363 F. Supp. 3d 61 (4th Cir. 2019)||7|
|North Dakota||State Law Banning Abortion if Roe is Overturned, Effective 30 Days After Decision||North Dakota Century Code § 12.1-31-12 (Enacted 2007)||Yes, one enjoined ban at 6 weeks LMP & one ban in effect at 22 weeks LMP||The enjoined 6 week LMP ban: North Dakota Century Code § 14-02.1-05.2 (Enacted 2013). This ban comes from North Dakota House Bill 1456 (Enacted 2013). This bill is currently enjoined by MKB Management Corportation v. Stenehjem 795 F.3d 768 (8th Circuit 2015). The in-effect 22 week LMP ban: North Dakota Century Code § 14-02.1-05.3 (Enacted 2013).||7|
|Ohio||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one enjoined ban at 6 weeks LMP & one ban in effect at 22 weeks LMP||The enjoined 6 week LMP ban: Ohio Revised Code Title 29 § 2919.195 (Enacted 2019). This ban comes from Ohio Senate Bill 23 (Enacted 2019). This bill is currently enjoined by Preterm-Cleveland v. David Yost 1:19-cv-00360 (S.D. Ohio 2019). The in-effect 22 week LMP ban: Ohio Revised Code Title 29 § 2919.201 (Enacted 2016).||7|
|Oklahoma||State Law Banning Abortion if Roe is Overturned, Effective Upon Attorney General Certification||Oklahoma House Bill 918 (Enacted 2022) , which, in the event that Roe v. Wade is overturned, will replace: Oklahoma Statute Title 21, § 862 (Enacted 1910, Updated as of 2014)||Yes, three bans in effect at fertilization, 6 weeks LMP, and 22 weeks LMP||The fertilization ban: Oklahoma Senate Bill 4327 (Enacted 2022).. The 6 week LMP ban: Oklahoma Senate Bill 1503 (Enacted 2022). The 22 week LMP ban is still in effect, although it is currently being superseded by the 6 week LMP ban. The 22 week LMP ban: Oklahoma Statutes Annotated Title 63 § 1-745.10 (Enacted 2011)||7|
|Oregon||State Law Protecting the Right to Abortion||Oregon Revised Statutes Public Health and Safety § 435.435 (Enacted 2017) from HB 3391 (Enacted 2017)||None||0|
|Pennsylvania||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one ban in effect at 24 weeks LMP||Pennsylvania Constitution Statutes Annotated Title 18 § 3211-3214 (Enacted 1989)||6|
|Rhode Island||State Law Protecting the Right to Abortion||23 R.I. Gen. Laws Ann. § 23-4.13-2 (Enacted 2019)||None||4|
|South Carolina||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one enjoined ban at 6 weeks LMP & one ban in effect at 22 weeks LMP||The enjoined 6 week ban: South Carolina Code Annotated § 44-41-330 (Enacted 2021). This ban comes from South Carolina Senate Bill 1 (Enacted 2021) which is currently enjoined by Court order in Planned Parenthood South Atlantic v. Alan Wilson CA No: 3:21-00508-MGL (D.C. South Carolina 2021). The 22 week LMP ban which is in effect: South Carolina Code Annotated § 44-41-410-450 (Enacted 2016)||7|
|South Dakota||State Law Banning Abortion if Roe is Overturned, Effective Immediately||South Dakota Codified Laws § 22-17-5.1 (Enacted 2005)||Yes, one ban in effect at 22 weeks LMP||South Dakota Codified Laws §§ 34-23A-5 (Enacted 2017)||7|
|Tennessee||State Law Banning Abortion if Roe is Overturned, Effective 30 Days After Decision||Tennessee Statute § 39-15-213 (Enacted 2019)||Yes, one enjoined ban at 6 weeks LMP||The enjoined ban begins at 6 weeks LMP and cascades up to 24 weeks LMP, with intervals at 8 weeks, 10 weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22 weeks, 23 weeks, concluding at 24 weeks LMP: Tennessee Code § 39-15-216 (Enacted 2020). This ban comes from Tennessee House Bill 2263 / Senate Bill 2196 (Enacted 2020) which is currently enjoined by Court order in Memphis Center for Reproductive Health et al. v. Herbert H. Slatery et. al, No.20-5969 (6th 2021).||5|
|Texas||State Law Banning Abortion if Roe is Overturned, Effective 30 Days After Decision||Texas Health & Safety Code Annotated §170A, which would go into effect on the 30th day after the issuance of a Supreme Court decision overruling Roe v. Wade.||Yes, two bans in effect at 6 weeks LMP and 22 weeks LMP||The 6 week ban: Texas Health & Safety Code Annotated § H 171.201 -171.212 (Enacted 2021). This ban comes from Texas Senate Bill 8 (Enacted 2021) . The 22 week LMP ban is still in effect, although it is currently being superseded by the 6 week LMP ban. The 22 week LMP ban: Texas Health & Safety Code Annotated § C 171.041 -171.048 (Enacted 2013)||7|
|Utah||State Law Banning Abortion if Roe is Overturned, Effective Day Legislature’s General Counsel Certifies to the Legislative Management Committee||Utah Criminal Code § 76-7a 101-103 (Enacted 1953, Revised 2020) from Utah Senate Bill 174 (Enacted 2020)||None||6|
|Vermont||State Law Protecting the Right to Abortion||Vermont House Bill 57 (Enacted 2019)||None||0|
|Virginia||No Policy in Effect Regarding the Legal Status of Abortion||Yes, one ban in effect at 3rd Trimester||The 3rd trimester ban which is in effect: Virginia Code § 18.2-74 (Enacted 1975, Last Amended 2009).||3|
|Washington||State Law Protecting the Right to Abortion||Washington Revised Code § 9.02.110 (Enacted 1991)||None||0|
|West Virginia||Pre-Roe Abortion Ban||West Virginia Code § 61-2-8 (Enacted 1882, Current as of 2021)||Yes, one ban in effect at 22 weeks LMP||West Virginia Code Annotated §16-2M-4 (Enacted 2015)||6|
|Wisconsin||Pre-Roe Abortion Ban||Wisconsin Statutes and Annotations 940.04 (Enacted 1849, Current as of October 1, 2021)||Yes, one ban in effect at 22 weeks LMP||Wisconsin Statutes Annotated §253.107 (Enacted 2015)||7|
|Wyoming||State Law Banning Abortion if Roe is Overturned, Attorney General Has 30 Days After the Decision to Advise and Ban Becomes Effective 5 Days After Governor Certification||Wyoming Statute § 35-6-102 (Enacted March 2022) which would go into effect 5 days after the Governor of Wyoming (on the advice of the Attorney General of Wyoming, at maximum thirty days after the issuance of a Supreme Court decision overruling Roe v. Wade) certifies to the Secretary of State of Wyoming to authorize this law.||None||3|
Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades
In a historic and far raching decision, the U.S. Supreme Court officially reversed Roe v. Wade on Friday, declaring that the constitutional right to abortion upheld for nearly a half century, no longer exists.
Writing for the court majority, Justice Samuel Alito said that the 1973 Roe ruling and repeated subsequent high court decisions reaffirming Roe “must be overruled” because they were “egregiously wrong,” the arguments “exceptionally weak” and so “damaging” that they amounted to “an abuse of judicial authority.”
The decision, most of which was leaked in early May, means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swaths of the country. The decision may well mean too that the court itself, as well as the abortion question, will become a focal point in the upcoming fall elections and in the fall and thereafter.
Joining the Alito opinion were Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts, appointed by President George W. Bush, concurred in the judgment only, and would have limited the decision to upholding the Mississippi law at issue in the case, which banned abortions after 15 weeks. Calling the decision “a serious jolt to the legal system,” he said that both the majority and dissent displayed “a relentless freedom from doubt on the legal issue that I cannot share.”
Dissenting were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, appointed by President Obama. The said that the court decision means that “young women today will come of age with fewer rights than their mothers and grandmothers.” Indeed, they said the court’s opinion means that “from the very moment of fertilization, a woman has no rights to speak of. A state can force her to bring a pregnancy to term even at the steepest personal and familial costs.”
“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.
Alito’s opinion is a tour de force of the various criticisms of Roe that have long existed in academia
Alito’s 78-page opinion, which has a 30-page appendix, seemingly leaves no authority uncited as support for the proposition that there is no inherent right to privacy or personal autonomy in various provisions of the Constitution — and similarly, no evidence that peoples’ reliance on the court’s abortion precedents over the past half century should matter.
Alito pointed for instance, to Planned Parenthood v. Casey, the 1992 decision that upheld the central holding of Roe and was written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, all Republican appointees to the court. Alito pointed to language in the Casey opinion that he said “conceded” reliance interests were not really implicated because contraception could prevent almost all unplanned pregnancies.
In fact, though, that 1992 opinion went on to dismiss that very argument as “unrealistic,” because it “refuse[s] to face the fact” that for decades “people have organized intimate relationships and made choices … in reliance on the availability of abortion in the event that contraception should fail.” Not exactly the concession that Alito described.
It is not unusual for justices to cherry pick quotes but not so out of context and not from former colleagues who are still alive and privately, not amused at all.
In the end, though, Alito’s opinion has a larger objective, perhaps multiple objectives.
Writing for the majority, he said forthrightly that abortion is a matter to be decided by states and the voters in the states. “We hold,” he wrote, that “the Constitution does not confer a right to abortion.” As to what standard the courts should apply in the event that a state regulation is challenged, Alito said any state regulation of abortion is presumptively valid and “must be sustained if there is a rational basis on which the legislature could have thought” it was serving “legitimate state interests,” including “respect for and preservation of prenatal life at all stages of development.” In addition, he noted, states are entitled to regulate abortion to eliminate “gruesome and barbaric” medical procedures; to “preserve the integrity of the medical profession”; and to prevent discrimination on the basis of race, sex, or disability, including barring abortion in cases of fetal abnormality.
Ultimately, the translation of all that is that states appear to be completely free to ban abortions for any reason.
Near the end of Friday’s decision, Alito sought to allay fears about the wide-ranging nature of his opinion. “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. “
But in his concurring opinion, Justice Thomas said the legal rationale for Friday’s decision could be applied to overturn other major cases, including those that legalized gay marriage, barred the criminalization of consensual homosexual conduct, and protected the rights of married people to have access to contraception.
“For that reason, in future cases, we should reconsider all” of those precedents. because they are “demonstrably erroneous.'”
The court’s liberals noted that Thomas’s language cast doubt on Alito’s assurances at the end of his opinion, that this opinion was really only about abortion.
“The first problem with the majority’s account comes from Justice Thomas’s concurrence—which makes clear he is not with the program,” they wrote. “In saying that nothing in today’s opinion casts doubt on non-abortion precedents, Justice Thomas explains, he means only that they are not at issue in this very case.”
The next steps on abortion across the country will play out in a variety of ways, almost all of them resulting in abortion bans.
Several states — among them Mississippi, North Carolina, and Wisconsin — still have decades-old abortion bans on their books; with Roe overturned, those states could revert to a pre-Roe environment. Officials in such states could seek to enforce old laws, or ask the courts to reinstate them. For example, a Michigan law dating back to 1931 would make abortion a felony. Gov. Gretchen Whitmer, a Democrat, has been working to try to block that law.
A cascade of newly active state laws
Another path to banning abortion involves “trigger bans,” newer laws pushed through by anti-abortion rights legislators in many states in anticipation of the Supreme Court’s action. Some 15 states – in the South, West and Midwest – have such laws in place, according to CRR and Guttmacher, but they fall into different categories.
Some states will act quickly to ban abortion. According to a new analysis by the Guttmacher Institute, South Dakota, Kentucky and Louisiana have laws in place that lawmakers designed explicitly to take effect immediately upon the fall of the Roe precedent. Idaho, Tennessee, and Texas – where most abortions are already illegal after about six weeks of pregnancy – have similar laws, which would take effect after 30 days. Guttmacher says seven other “trigger ban” states have laws that would require state officials such as governors or attorneys general to take action to implement them.
Sue Liebel, state policy director with the anti-abortion rights group Susan B. Anthony Pro-Life America, said she expects officials in many of those Republican-controlled states to take swift action to do so.
“We have been talking to all of those about acting immediately,” Liebel told NPR. “So when that happens, let’s be ready. How do you get that back into play?”
In recent years, many states also have passed gestational bans prohibiting abortion at various stages of pregnancy. Courts have blocked many of those laws in response to legal challenges, including laws in Georgia, Ohio, and Idaho that ban abortions after six weeks of pregnancy. Now those laws may take effect immediately. So too, could a law recently enacted in Oklahoma, that makes performing abortion a felony punishable by time in prison.
“It will be a tremendous change in an incredibly short period of time,” said Julie Rikelman, senior director of litigation at the Center for Reproductive Rights. Rikelman argued the Center’s challenge to Mississippi’s abortion ban at Supreme Court this term.
A host of other restrictions could limit where, by whom, and under what conditions abortion can be provided. Some examples include laws requiring parental notification or consent for abortions involving patients who are minors; and other health regulations for doctors and clinics that many medical groups say are unnecessary, expensive, and difficult to comply with.
Finally, Liebel said some governors may consider calling special sessions to pass new legislation in response to Friday’s ruling.
More legal uncertainty
Legal experts say the court’s decision will pose new questions for other courts to deal with – questions about how to apply the specific language of the final ruling to individual state laws.
Rikelman, the Center for Reproductive rights attorney, predicts “legal chaos” in states across the country in the immediate aftermath of the decision.
“I think what we will see is far more litigation in the federal courts – not less litigation,” Rikelman said.
Some states such as Texas and Oklahoma have multiple abortion restrictions on the books, raising potential questions about which ones would be valid. Those laws each include different provisions and carry different penalties, adding to the potential confusion and prompting additional litigation in state and federal courts.
Liebel, with SBA Pro-Life America, acknowledged that more legal battles are likely.
“That’s gonna take us back, frankly, to where we always have been. Each side tries to put their big toe right on that line and push the envelope,” Liebel said.
Battles in state courts are also likely. Some state constitutions may offer protections for abortion rights notwithstanding the U.S. Supreme Court’s interpretation of the U.S. Constitution. In Florida, for example, the American Civil Liberties Union and other reproductive rights groups are challenging a 15-week abortion ban modeled on Mississippi’s law, on the grounds that it violates privacy rights protections guaranteed in Florida’s state constitution.
Even without overturning Roe, Rikelman points to the Texas law known as S.B. 8, which took effect in September. The law, which has spawned several copycat proposals in other states, including Oklahoma, relies on individuals filing civil lawsuits to enforce an abortion ban.
Interstate enforcement battles
Abortion bans in restrictive states will likely bleed over to states that protect abortion rights as well, Rikelman said. She notes that some state lawmakers are trying to prohibit people in other states from providing abortions to their residents.
“What we are seeing already are states and state legislators impacting even people’s ability to access abortion in places where it would remain legal,” she said.
For example, an omnibus abortion law passed by a Republican supermajority in Kentucky earlier this year includes a host of new requirements for dispensing medication abortion pills, and a provision for extraditing people from other states who illegally provide abortion pills to Kentuckians. It’s unclear how enforceable those types of laws would be.
Meanwhile, some states are trying to expand access to abortion in preparation for more patients traveling from restrictive states for procedures. Connecticut lawmakers passed legislation this year designed to protect abortion providers from out-of-state lawsuits.
“This just raises a whole host of issues,” Rikelman said. “All of those different disputes will have to be worked out in the courts” including, potentially, in the U.S. Supreme Court.
What’s more, the anti-abortion movement will not be satisfied with this win, observes University of Michigan law professor Leah Litman. “The next time the Republicans win control of the Senate and White House and the House of Representatives a national abortion ban is going to be on the table,” she said in an interview.
Even as abortions have now become far more restricted overall, the Guttmacher Institute reports that the long-term decline in abortions has reversed. In 2020, there were 930,160 abortions in the U.S., an increase of 8 percent more abortions than in 2017. The Institute also said that at the same time, fewer people were getting pregnant and among those who did, a larger proportion chose to have an abortion.
The Long Road And Significance Of Overturning Roe
The Significance of the Overturning of Roe
Remember where you were on the morning of Friday, June 24, 2022, a few minutes past 10:00 AM, EST. History was made this morning. The seemingly impossible happened. At last, the Supreme Court of the United States overturned Roe v. Wade.
To be sure, this is just the beginning of a new battle to be fought for the unborn, state by state, life by life, heart by heart. But this is also a massive, unprecedented victory, one that, for many years, seemed completely out of reach.
After all, Roe became law in 1973, almost 50 years ago. In many ways, American values have become much less conservative since then.
To give just one example, the Brookings Institute revealed back in 1996 that, “We have found that this rather sudden increase in the availability of both abortion and contraception we call it a reproductive technology shock is deeply implicated in the increase in out-of-wedlock births.”
The Brookings Institute further reported that, “Since 1970, out-of-wedlock birth rates have soared. In 1965, 24 percent of black infants and 3.1 percent of white infants were born to single mothers. By 1990 the rates had risen to 64 percent for black infants, 18 percent for whites. Every year about one million more children are born into fatherless families.”
This is a staggering increase.
By 2016, according to the research institution Child Trends, “28 percent of all births to non-Hispanic white women (i.e., white) occurred outside of marriage, a figure that is almost twice as high as the 15 percent of births among this demographic that were nonmarital in 1990. In 2016, 52 percent of all births to Hispanic women occurred outside of marriage, up from 34 percent in 1990 (a more than 50 percent increase). The percent of births that occurred outside of marriage also increased for non-Hispanic black women (black) between 1990 and 2016, from 63 to 69 percent (a nine percent increase).”
Not only has illegitimacy increased substantially, but marriage itself has been redefined by the Supreme Court, and for many conservative, family values, it seems as if the ship has sailed, especially with the Court actually taking Roe further in the 1992 Casey case when it should have done the exact opposite.
The battle for abortion in America has been lost, forever – at least, that’s how it seemed.
Whole generations of women have been born into a pro-abortion culture, to the point that it is not just an accepted moral right. It has also become a sacred rite.
But pro-lifers – both Catholic and Protestant – never gave up the battle, and for a number of different reasons, the number of abortions has been steadily declining, almost without exception, from the late 1990s until today.
And now, at last, Roe has been overturned.
The Court could easily have upheld the Mississippi law without overturning Roe, an approach which would have still had the effect of chipping away at the 1973 decision. It also would have been more likely to entice Chief Justice Roberts into joining a clean 6-3 majority decision. Instead, Roberts wrote an opinion concurring with the Dobbs decision but, dissented on overturning Roe. (See here for the official ruling.)
Instead, it went one step further, exposing Roe for the travesty it is. And to think – just a few years ago, this decision still seemed impossible.
It was only because President Trump (an unlikely hero in the pro-life battle) was able to appoint three new justices to the Court, all of whom voted the right way. This decision only became possible after the death of Justice Ruth Bader Ginsburg and the quick approval of Justice Amy Coney Barrett in Trump’s last months in office.
Talk about a series of unexpected events – with the narcissistic, bullheaded, former pro-abortion playboy playing a central role.
Now, states can pass their pro-life laws without restriction. Now, the murderous, angry spirit of abortion will be further exposed, as violent mobs will attack pro-life centers and pro-life people, and as other states will pass more extreme, pro-abortion laws. This has already happened in New York, Maryland, and California.
May the light shine all the more clearly in the midst of the darkness.
May love overcome hatred.
May the Lord make a separation between those who choose life and those who choose death.
And may the Church rise up and make an even more compelling case for the humanity of the baby in the womb, also offering even more compassionate care and hope to expectant moms and dads who are contemplating abortion. May life prevail!
It is true that the overturning of Roe is decades late, which means tens of millions of slaughtered babies were allowed to perish. It is true that there is much blood guilt on our hands.
But it is also true that only in America has a pro-life movement pushed back with such tenacity for so many years. What has happened here is truly unique.
In his 2016 book, Why Liberals Win the Culture Wars (Even When They Lose Elections) legal scholar Stephen Prothero argued that our “culture wars have always been religious wars, progressing through the same stages of conservative reaction to liberal victory that eventually benefit all Americans.”
That’s why this victory is all the more significant. A destructive tide has been turned. And in the end, this will benefit all Americans.
May the Lord see this landmark ruling as an act of repentance from the nation. May He show mercy and restore us. May a culture of life sweep our land!
Roe V. Wade Is History, But The Abortion Debate Reveals Rot At America’s Center
This week, the Supreme Court of the United States issued a ruling overdue by some five decades, striking down Roe v. Wade (1973) and its Constitutionally unsubstantiated “right to abortion.” Writing for the 6-3 majority in Dobbs v. Jackson, Justice Samuel Alito stated, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision….It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Despite the media’s wailing and gnashing of teeth, and despite Democrats’ impotent roars of rage, the reality is that the Supreme Court decision was not extreme in any way. It did not reflect the most ardent desires of pro-lifers. It did not, for example, declare a right to life applicable to unborn children under the 14th Amendment’s guarantee against the removal off “life, liberty or property.without due process of law.” Nor did the decision follow the legally correct advice of Justice Clarence Thomas, who recommended trashing the Supreme Court doctrine of “substantive due process,” a persistently and irritatingly vague rubric that generally acts as a pretext for courts to pursue their favored public policy objectives. The decision did not even suggest that the federal Congress had the power to regulate abortion in place of state laws.
No, the Dobbs ruling returns the status of the question of abortion to the status quo ante prior to Roe. Now states will decide how and when to regulate abortion. Some states, like Texas, will work to bar abortion except in cases in which the mother’s life is in danger. Others, like New York, will cheer abortion up until the point of actual birth. No consensus policy is likely to emerge, because there is no consensus on the issue among Americans.
Yet Democrats and the media seem firmly convinced that the re-animation of abortion as a state law issue will somehow translate into 2022 electoral victory. There is little evidence to this effect: state laws generally reflect the opinions of those who live in those states, and the most ardent abortion defenders tend to reside in heavily blue areas where abortion will be freely available. It’s hard to believe that Manhattan residents are going to show up to the polls en masse to vote on Alabama’s abortion policy – and even if they did, it would make no difference in House or Senate elections in Ohio.
There is another problem for Democrats, too. That problem lies in the simple fact that if Americans do vote based on abortion, they don’t do so purely based on preferred abortion policy. They do so based on the attitude of the parties toward abortion generally. And today, the party of abortion extremism is the Democratic Party, which long ago abandoned the logically unsound but emotionally appealing rubric of “safe, legal and rare,” instead substituting the hideously monstrous “shout your abortion.” The Democratic Party moved away from moral condemnation of abortion because Democrats now believe that human happiness is rooted in subjective self-definition, particularly with regard to sexual activity; that biology, particularly pregnancy and child-bearing, is an active imposition on such a vision of human happiness; and that abortion is therefore a sacrament to be protected.
Few Americans outside of solid blue areas agree with these bizarre and ugly notions. So while Democrats suggest that voters will resonate to their abortion messaging, fearful of abortion restrictions that might prohibit them from terminating their pregnancies, they miss a broader point: their vision of human happiness and the measures necessary to achieve it are not in line with most Americans. And that means that the culture war that the Left began is now turning against them, as it should.
So The Supreme Court finally rectified the over-reach of the Federal Government in the infamous decision Roe vs Wade. However, by correcting this issue did they practice over-reach again? It seems to me that they went way past the issues promulgated by the case Dobbs v. Jackson Women’s Health, in that there was an issue with when abortions could be performed. By reversing Roe vs Wade they dealt with an issue not on the docket. The supreme court has a very tight mandate, and in this case they once again over stepped it. They could have settled the case without taking this step, instead they used it as an excuse to undo the injustice created by Roe v Wade. They should have waited for the appropriate case to come before them to reverse the 1973 decision. If they would have done it in the appropriate manner there would have been less of an issue. Eventually this over reach will become an issue, it is something that has to be rectified. The Supreme Court was not created to be a political tool.
Now that Roe v Wade is no longer the law of the land, what does this mean for those unwanted pregnancies? To start with maybe people will take birth control a little more seriously, second of all if you still want to have one, you may have to do a little traveling to get one. Otherwise little has changed. You can still get one, it just won’t be as easy as getting a pack of gum at a local store anymore, and like I have said this is a decision that should not be taken lightly. It involves a life after all.
en.wikipedia.org, “Roe vs Wade,” By Wikipedia editors; history.com, “Roe vs Wade,” By History Channel editors; pewresearch.org, “With religion-related rulings on the horizon, U.S. Christians see Supreme Court favorably, “BY DALIA FAHMY; pewresearch.org, “8 facts about religion and government in the United States,” By Dalia Fahmy; gotquestions.org, “How should a Christian view the Roe vs. Wade decision?” huffpost.com, “Roe and Religion: A Surprising History,” By Sally Steenland; dailywire.com, “The Left’s War With Biological Reality.” By Ben Shapiro; dailywire.com, “How Science Has Won The Abortion Debate (And Why Democrats Choose To Ignore It).” By Tim Meads; dailywire.com, “15 Pro-Life Heroes Who Brought Us The Overturn Of Roe v. Wade.” By David Marcus; dailywire.com, “The Legend Of The Real Jane Roe.” By Megan Basham; dailywire.com, “An Unplanned Pregnancy Didn’t Stop Me From Reaching My Goals. Now I Work To Support Other Women. You’re stronger than you think. My work giving ack.” By Da Chiron; npr.org, “Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades.” By Nina Totenberg and Sarah McCammon; dailywire.com, “The Long Road And Significance Of Overturning Roe.” By Michael Brown; aclu.org, “TIMELINE OF IMPORTANT REPRODUCTIVE FREEDOM CASES DECIDED BY THE SUPREME COURT.”; kff.org, “Abortion at SCOTUS: Dobbs v. Jackson Women’s Health.” By Laurie Sobel, Amrutha Ramaswamy and Alina Salganicoff; dailywire, ” Roe V. Wade Is History, But The Abortion Debate Reveals Rot At America’s Center.” By Ben Shapiro”; dailywire.com, “Five Reasons To Celebrate The Overturning Of Roe.” By Michael Brown;
*Abortion and right to privacy
After dealing with standing, the Court then proceeded to the main issue of the case: the constitutionality of abortion laws. It began with a historical survey of the legal status of abortion across Roman law and the Anglo-American common law. It also reviewed the developments of medical procedures and technology to perform abortions, which had only become reliably safe in the early 20th century.
After its historical survey, the Court introduced the concept of a constitutional “right to privacy” that was intimated in earlier cases involving parental control over childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters) and reproductive autonomy with the use of contraception (Griswold v. Connecticut). Then, “with virtually no further explanation of the privacy value”, the Court ruled that regardless of exactly which of its provisions were involved, the U.S. Constitution’s guarantees of liberty covered a right to privacy that generally protected a pregnant woman’s decision whether or not to abort a pregnancy. This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.— Roe, 410 U.S. at 153.
The Court reasoned that outlawing abortions would infringe a pregnant woman’s right to privacy for several reasons: having unwanted children “may force upon the woman a distressful life and future”; it may bring imminent psychological harm; caring for the child may tax the mother’s physical and mental health; and because there may be “distress, for all concerned, associated with the unwanted child”. But then the Court rejected the notion that this right to privacy was absolute. It held instead that the abortion right must be balanced against other government interests. The Court found two government interests that were sufficiently “compelling” to permit states to impose some limitations on the right to choose to have an abortion: first, protecting the mother’s health, and second, protecting the life of the fetus.
A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.— Roe, 410 U.S. at 154.
The state of Texas had argued that total bans on abortion were justifiable because “life” begins at the moment of conception, and therefore its governmental interest in protecting prenatal life should apply to all pregnancies regardless of their stage. But the Court found that there was no indication that the Constitution’s uses of the word “person” were meant to include fetuses, and so it rejected Texas’s argument that a fetus should be considered a “person” with a legal and constitutional right to life. It noted that there was still great disagreement over when an unborn fetus becomes a living being.
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.— Roe, 410 U.S. at 159.
The Court settled on the three trimesters of pregnancy as the framework to resolve the problem. During the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that the government could place no restriction on a woman’s ability to choose to abort a pregnancy other than minimal medical safeguards such as requiring a licensed physician to perform the procedure. From the second trimester on, the Court ruled that evidence of increasing risks to the mother’s health gave the state a compelling interest, and that it could enact medical regulations on the procedure so long as they were reasonable and “narrowly tailored” to protecting mothers’ health. Since the beginning of the third trimester was normally considered to be the point at which a fetus became viable under the level of medical science available in the early 1970s, the Court ruled that during the third trimester the state had a compelling interest in protecting prenatal life, and could legally prohibit all abortions except where necessary to protect the mother’s life or health.
The Court concluded that Texas’s abortion statutes were unconstitutional, and struck them down:
A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.— Roe, 410 U.S. at 164.
**Roe in subsequent decisions and politics
Opposition to Roe on the bench grew when President Reagan, who supported legislative restrictions on abortion, began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: “I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We’ve had too many examples in recent years of courts and judges legislating.”
In addition to White and Rehnquist, Reagan appointee Sandra Day O’Connor began dissenting from the Court’s abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was “unworkable.” Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be “reexamined”; the associate justice who filled Burger’s place on the Court – Justice Antonin Scalia – vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork‘s nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony Kennedy.
The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada’s federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.
Webster v. Reproductive Health Services
Main article: Webster v. Reproductive Health Services
In a 5–4 decision in 1989’s Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because “none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution.”In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.
In concurring opinions, O’Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O’Connor for not overruling Roe. Blackmun – author of the Roe decision – stated in his dissent that White, Kennedy and Rehnquist were “callous” and “deceptive,” that they deserved to be charged with “cowardice and illegitimacy,” and that their plurality opinion “foments disregard for the law.” White had recently opined that the majority reasoning in Roe v. Wade was “warped.”
Planned Parenthood v. Casey
Main article: Planned Parenthood v. Casey
During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference, and O’Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe, saying, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. […] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.
Scalia’s dissent acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: “[B]y 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.”
Stenberg v. Carhart
Main article: Stenberg v. Carhart
During the 1990s, the state of Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, “this law does not save any fetus from destruction, for it targets only ‘a method of performing abortion’.” The Supreme Court struck down the Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.
Kennedy, who had co-authored the 5–4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional. In his dissent, Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit, and thus argued that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called “partial birth abortion.”
The remaining three dissenters in Stenberg – Rehnquist, Scalia, and Thomas – disagreed again with Roe: “Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.”
Gonzales v. Carhart
Main article: Gonzales v. Carhart
In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state’s ban on “partial birth abortion” was unconstitutional because such a ban did not have an exception for the health of the woman. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O’Connor, respectively. The ban at issue in Gonzales v. Carhart was a federal statute, rather than a state statute as in the Stenberg case, but was otherwise nearly identical to Stenberg, replicating its vague description of partial-birth abortion and making no exception for the consideration of the woman’s health.
On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy’s opinion did not reach the question of whether the Court’s prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart remained valid, and instead the Court stated that the challenged statute remained consistent with those past decisions whether or not those decisions remained valid.
Chief Justice John Roberts, Scalia, Thomas, and Alito joined the majority. Justices Ginsburg, joined by Stevens, Souter, and Breyer, dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court’s prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed. They also noted that the Partial-Birth Abortion Ban Act may exceeded the powers of Congress under the Commerce Clause but that the question was not raised before the court.
Whole Woman’s Health v. Hellerstedt
Main article: Whole Woman’s Health v. Hellerstedt
In the case of Whole Woman’s Health v. Hellerstedt, the most significant abortion rights case before the Supreme Court since Planned Parenthood v. Casey in 1992, the Supreme Court in a 5–3 decision on June 27, 2016, swept away forms of state restrictions on the way abortion clinics can function. The Texas legislature enacted in 2013 restrictions on the delivery of abortions services that created an undue burden for women seeking an abortion by requiring abortion doctors to have difficult-to-obtain “admitting privileges” at a local hospital and by requiring clinics to have costly hospital-grade facilities. The Court struck down these two provisions “facially” from the law at issue – that is, the very words of the provisions were invalid, no matter how they might be applied in any practical situation. According to the Supreme Court the task of judging whether a law puts an unconstitutional burden on a woman’s right to abortion belongs with the courts and not the legislatures.
State laws regarding Roe
Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned, with the effect of outlawing abortions on the state level. Those states include Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota. Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could again be in force if Roe were reversed.
Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.
The Mississippi Legislature has attempted to make abortion unfeasible without having to overturn Roe v. Wade. The Mississippi law as of 2012 was being challenged in federal courts and was temporarily blocked.
Alabama House Republicans passed a law on April 30, 2019 that will criminalize abortion if it goes into effect. It offers only two exceptions: serious health risk to the mother or a lethal fetal anomaly. Alabama governor Kay Ivey signed the bill into law on May 14, primarily as a symbolic gesture in hopes of challenging Roe v. Wade in the Supreme Court.
According to a 2019 study, if Roe v. Wade is reversed and abortion bans are implemented in trigger law states and states considered highly likely to ban abortion, the increases in travel distance are estimated to prevent 93,546 to 143,561 women from accessing abortion care.
8 facts about religion and government in the United States
1)While the U.S. Constitution does not mention God, every state constitution references either God or the divine. God also appears in the Declaration of Independence, the Pledge of Allegiance and on U.S. currency.
2)Congress has always been overwhelmingly Christian, and roughly nine-in-ten representatives (88%) in the current Congress identify as Christian, according to a 2019 analysis. While the number of self-identified Christians in Congress ticked down in the last election, Christians as a whole – and especially Protestants and Catholics – are still overrepresented on Capitol Hill relative to their share of the U.S. population.
3)Almost all U.S. presidents, including Donald Trump, have been Christian, and many have identified as either Episcopalian or Presbyterian. But two of the most famous presidents, Thomas Jefferson and Abraham Lincoln, had no formal religious affiliation. Most U.S. presidents have been sworn in with a Bible, and they traditionally seal their oath of office with “so help me God.”
4)Roughly half of Americans feel it is either very (20%) or somewhat (32%) important for a president to have strong religious beliefs, according to a survey this past February. But only around four-in-ten (39%) say it is important for a president to share their religious beliefs. Republicans are more likely than Democrats to say it is at least somewhat important for a president to have strong religious beliefs (65% vs 41%).
5)Americans are divided on the extent to which the country’s laws should reflect Bible teachings. Roughly half of U.S. adults say the Bible should influence U.S. laws either a great deal (23%) or some (26%), and more than a quarter (28%) say the Bible should prevail over the will of the people if the two are at odds, according to the February survey. Half of Americans, meanwhile, say the Bible shouldn’t influence U.S. laws much (19%) or at all (31%).
6)More than six-in-ten Americans (63%) say churches and other houses of worship should stay out of politics. An even higher share (76%) say these houses of worship should not endorse political candidates during elections, according to a 2019 survey. Still, more than a third of Americans (36%) say churches and other houses of worship should express their views on social and political matters. (The Johnson Amendment, enacted in 1954, prohibits tax-exempt institutions like churches from involvement in political campaigns on behalf of any candidate.)
7)Only about a third of Americans (32%) say government policies should support religious values. Two-thirds (65%) say religion should be kept out of government policies, a 2017 Pew Research Center survey found.
8)Even though the Supreme Court ruled in 1962 that it is unconstitutional for a teacher to lead a class in prayer at a public school, 8% of public school students ages 13 to 17 say they have ever experienced this, according to a 2019 survey. (It is, however, possible that some teens who said they’ve experienced this could have previously attended religious private schools where teacher-led prayer is constitutional.) This experience is more common in the South (12%) than in the Northeast (2%). Four-in-ten U.S. teens in public schools (41%) feel it’s appropriate for a teacher to lead a class in prayer, including 29% of teens who know that this practice is banned but say that it is acceptable nevertheless.
The Left’s War With Biological Reality
As the Supreme Court determines whether to preserve the Court-created “right to abortion” under Roe v. Wade, those on the feminist Left have gone into full-blown panic mode. Women’s rights, they insist, will implode without granting women the ability to abort their children; only that ability can equalize the natural inequalities of biology, by which women are saddled with the burden of childbearing and child rearing.
This war with biology is central to the Left’s definition of autonomy itself. In the pages of The New York Times, Democratic activist Elizabeth Spiers made this perfectly clear in arguing that abortion ought to be considered the moral alternative to adoption. “When I awoke,” she writes, “my son would wake up shortly after and I’d feel him turning and stretching, or less pleasantly, jamming his precious little foot into what felt like my cervix. This is one of the paradoxes of pregnancy: something alien is usurping your body and sapping you of nutrition and energy, but you’re programmed to gleefully enable it and you become desperately protective of it. It’s a kind of biological brainwashing.”
The same people who maintain that your biology dictates that you can be a man in a woman’s body and that this represents not gender dysphoria — truly, a form of biological brainwashing — but an objective reality to which all of society should conform also argue that biology creates morally unjust connections between mother and child. As Spiers says, “biological brainwashing … occurs during pregnancy”; mothers cannot “simply choose not to bond with a child she’s gestating solely on the basis that she is not ready to be a mother or believes that she is unable to provide for the child.” This means that women should consider killing the child rather than putting it up for adoption.
The language of “biological brainwashing” doesn’t stop with the bond between mother and child. This week, Rep. Alexandria Ocasio-Cortez, D-N.Y., the spectacularly dull Instagram star, characterized opposition to abortion as the legalization of “forced birth.” In her view, biology itself is an imposition on women (the Left conveniently drops its Orwellian “birthing people” lingo when abortion is at stake); ending a pregnancy by killing an unborn child is a restoration of the natural order.
Precisely the opposite is true, of course. A predictable result of sex — in fact, the evolutionary biological purpose of sex — is procreation. The process by which conception results in birth is continuous and natural. Interfering in that process by forced killing of an unborn human life is definitionally unnatural.
But so is the entire Leftist worldview by which true autonomy represents an opposition between spirit and flesh. According to the Left, any check on our ambitions — even a check provided by the reality of biology — must be overcome in order to establish true equality of opportunity. Women are different than men in biology; therefore, biology must be opposed.
The results of this madness are obvious: men and women alienated from themselves, angry at the realities of life, willing to forgo perhaps the greatest joy of existence — the perpetuation of the human species through the birth of children. But other civilizations are not so suicidal. While we amuse ourselves to death, solipsistically focused on our own subjective sense of autonomy, other civilizations recognize, at the very least, that biology is an inescapable reality. Those civilizations that best conform to the beauty of that reality will thrive. Those that do not will destroy themselves.
How Science Has Won The Abortion Debate (And Why Democrats Choose To Ignore It)
In 1983, Supreme Court Justice Sandra Day O’Connor predicted that medical advances would soon eliminate the standard that was established in Roe v. Wade to determine when life begins in the womb. These technological improvements would wind up making the so-called right-to abortion obsolete if pro-choice advocates relied solely on science, she implied.
Flash forward to 2022, in the wake of the leaked draft from the Supreme Court of the United States showing that the court is poised to overturn Roe, it is abundantly clear that not only was O’Connor correct, but Democratic leaders have by and large abandoned all pretense of caring about the data regarding the child in the womb. Instead, Democratic officials now insist women have a “sacred” right to abortion through all nine months of pregnancy, regardless of the “viability standard.”
Yet, while Democratic leaders may not care about the science, polls, and personal anecdotes of both doctors and mothers, new technology — such as ultrasounds and in utero surgery — has shifted Americans’ understanding of when life begins in the womb, thereby changing the abortion debate.
In 1973, the court outlined in Roe that the State had an “important and legitimate interest in potential life,” and that “the ‘compelling’ point is at viability. This is so because the fetus presumably has the capability of meaningful life outside the mother’s womb.” It placed that viability around 24-28 weeks.
The court also observed that “some…argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.”
In doing so, the court acknowledged that the standard of viability could change based on new data and that a woman does not have the right to abortion-on-demand throughout her pregnancy.
In 1983, in a dissenting opinion in Akron v. Akron Center For Reproductive Health, O’Connor argued that “the Roe framework,” as she called it, “is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”
Indeed, medical advances have changed science’s understanding of life as well its potential to survive outside the womb. In 2021, columnist Chris Cunningham observed that at the time Roe was decided, “babies born younger than 28 weeks could not be expected to survive. Today, babies born before that have a 79% chance of surviving.”
In terms of actually viewing the child in the womb, the use of ultrasound has perhaps been the most game-changing technology , according to Dr. Tara Sander Lee, Senior Fellow and Director of Life Sciences at Charlotte Lozier Institute. Dr. Lee is also a Harvard trained scientist who previously directed a research laboratory investigating congenital heart disease in children.
“The black and white dots of an ultrasound before Roe could barely identify the head of an unborn child in the womb, much less identify the heartbeat at six weeks, watch the child at 15 weeks suck his thumb, or even cry when receiving an anesthetic injection prior to life saving surgery in utero,” Dr. Lee told The Daily Wire. “All of that is possible today, and even routine. What expectant mothers now see is a living, moving child inside them with a face and behaviors that will last a lifetime.”
Dr. Lee also provided a visual which illustrates how advanced this technology has become since 1973:
“Modern ultrasound technology lets us see with our eyes what both science and our hearts have long known, which is the undeniable humanity of the unborn child,” Dr. Lee explained.
“Science confirms and ultrasound shows that unborn babies respond to touch and taste just like you and me,” she argued. “They feel excruciating pain. With fully formed noses and lips, eyes, and eyebrows, fingers and toes, they explore the world around them. And with advancements in surgical techniques, unborn babies are even treated inside the womb, like any other patient, from as early as 15 weeks.”
Indeed, activists like Ashley McGuire also concur with that line of reasoning. In 2018, McGuire told The Atlantic, “The pro-life message has been, for the last 40-something years, that the fetus … is a life, and it is a human life worthy of all the rights the rest of us have. That’s been more of an abstract concept until the last decade or so.”
She added, “when you’re seeing a baby sucking its thumb at 18 weeks, smiling, clapping, [it becomes] harder to square the idea that the 20-week-old, that unborn baby or fetus, is discardable.”
Dr. Colleen Malloy, a neonatologist and faculty member at Northwestern University as well as a researcher at Charlotte Lozier, also told The Atlantic that her own career progression has helped clarify that a “fetus” in the womb is a human being.
“The more I advanced in my field of neonatology, the more it just became the logical choice to recognize the developing fetus for what it is: a fetus, instead of some sort of sub-human form,” Dr. Malloy told the magazine. “It just became so obvious that these were just developing humans.”
An oft-repeated line from pro-choice advocates is that the baby is just a lump of cells and nothing more. However, the “ultrasound shows that the abortion lobby’s tired, old argument” is a lie, Dr. Lee told The Daily Wire.
“Modern science reveals the humanity of the unborn child. The truth is now visible for all of America,” she added. “It’s time to give the unborn a voice in this matter of life.”
Many polls would indicate that most Americans agree with that sentiment to a certain extent. In 2019, Harvard Center for American Political Studies and The Harris Poll issued a poll among 1,295 registered voters which revealed that 54% supported overturning or modifying Roe and 46% percent supported affirming that decision.
The poll also found that 70% of voters supported making abortion legal only within the first trimester, or until 12 weeks. Additionally, a small margin of American voters, only 6%, supported making abortion legal until the moment of birth.
Other polls also indicate that Americans want restrictions on abortion. In 2021, a poll conducted by Marist and sponsored by the Knights of Columbus found that “most Americans (71%) said that abortion should be restricted to the first three months of pregnancy.”
Furthermore, data would seem to indicate that, as discussions increase about what late-term abortions actually entail, the public becomes more pro-life — not less.
In 2019, a February poll also conducted by Marist and sponsored by the Knights of Columbus, found that “Americans are now as likely to identify as pro-life (47%) as they are pro-choice (47%). In January of that year, a similar Marist survey found that Americans were more likely to identify as pro-choice than pro-life 55% to 38%, a 17-point gap.”
What appeared to drive that change was the conversation in the media surrounding former Virginia Governor Ralph Northam’s (D) indication that he would allow a baby to die after undergoing a botched abortion, as it related to a bill being pushed by state Democrats which would make late-term abortion legal.
“This has been a measure that has been so stable over time. To see that kind of change was surprising,” Barbara Carvalho, who directed the poll said. “And the increased discussion [of late-term abortion] in the public forum in the past month appears to have made the biggest difference in how people identify on the issue.”
Though, the question still remains: If the science shows that life begins earlier than the standard set in 1973, and polls indicate that Americans want some restrictions on abortions, then why are Democratic leaders pushing for abortion to remain legal through all nine months of labor?
Majority Leader Senator Chuck Schumer (D-NY) announced this month that the Senate would hold a vote on the Women’s Health Protection Act, a bill that “would establish a right to abortion through all nine months of pregnancy in all 50 states,” the National Review noted. Around the same time, Ohio Senate candidate Congressman Tim Ryan (D-OH) also told the media that abortion should remain legal for all 40 weeks. White House Press Secretary Jen Psaki even refused to state whether President Joe Biden supported any limits on abortions on Thursday.
The Democratic Party’s focus appears to have shifted solely to the woman’s right to choose, her bodily autonomy, and her supposed privacy. What is never mentioned in the Left’s defense of such stances is the baby, or their viability.
Science has indisputably shown that Roe’s standard of viability is outdated. As the field of medicine improves, the ability for babies to survive earlier and earlier outside the womb will also increase. The risk to the mother will decrease.
The simple fact is that if the Democrats did acknowledge that science has won, that the fetus is not just a lump of cells, then they would have to recognize the fetus for what it is — a human being with the inalienable right to life. That would settle the abortion question once and for all, though this doesn’t seem possible for the Left to accept.
The Legend Of The Real Jane Roe
In May of 2020, a slew of establishment news outlets, including The New York Times, The Washington Post, Los Angeles Times, and USA Today, were breathlessly reporting on a supposed bombshell in a new Hulu documentary titled, “AKA Jane Roe.” They deemed it “shocking,” “stunning,” and a “challenge” to the pro-life “narrative.” Why? Because in the film, Norma McCorvey, the actual Jane Roe in the landmark case, Roe v. Wade, claimed to be pro-choice.
Most Americans who read that explanation will scratch their heads. Of course the woman who went to the Supreme Court to argue that she had the right to end her pregnancy was pro-choice. What’s surprising about that?
The few who followed the life of McCorvey as she went from being the face of the decision to legalize abortion to a poster girl for the pro-life movement will understand. More than anything, McCorvey was a deeply enigmatic and often pugnacious figure who seemed to resent being made a symbol for any cause, even as she craved the attention such a role offered.
A Troubled Beginning
Though McCorvey acted as the plaintiff in the case that ushered in legalized abortion, she herself never had one — the ruling was handed down months after she gave birth to a daughter she gave up for adoption. Nor did she parent the two girls she delivered before that. Traumas she suffered as a child may well have made it impossible for her to feel anything more than ambivalence about the prospect of motherhood.
Abandoned by her father at age 13, McCorvey grew up in dire poverty with a mentally-ill brother and a violent, alcoholic mother, who admitted to Vanity Fair in 2013 that she “beat the f***” out of the girl.” From the context of the interview, the elder McCorvey didn’t feel much regret over the thrashings, contending that her daughter was “a die-hard whore.”
One scene in “AKA Jane Roe” brings up troubling questions of what else McCorvey may have suffered at a young age that contributed to her later promiscuity. She recounts that at age 10, she ran away to a hotel and had a sexual encounter with a female friend no older than she was. Groups like Rape, Abuse & Incest National Network (RAINN) warn that young children acting out sexually is one of the most serious red flags for abuse. Yet filmmaker Nick Sweeney, who conducts the interview with McCorvey, doesn’t probe further about the incident or what might have preceded it.
Like so many others, his interest in McCorvey seems to go no further than what she will say about the national debate that came to define her.
Plaintiff for the Cause
Though a regular at gay bars, a fling with a married man left McCorvey pregnant for a third and final time in 1969.
Recalling her first meeting with two pretty, young Dallas lawyers in a local pizza parlor, she wrote in her 1994 memoir, “It was obvious to me even from across the room that these women hadn’t talked to a person like me for a long time, if ever.” She was, by her own admission, “a street person, drug addict, [and] drunk.” At the time, that was just what Linda Coffee and Sarah Weddington needed in a client — someone poor enough they could credibly sue the state of Texas under the argument that she didn’t have the means to travel to another state like California, where abortion was legal. McCorvey fit the bill perfectly…for the moment.
In the long run, though, her rough manners and coarse image were a poor fit for the feminist movement’s flagship issue. Abortion was supposed to be the key that freed bright, career-minded young women from the shackles of children who would be a drag on their ambitions. In fact, the two attorneys had tried to challenge Texas’ law with another client — an engineer with an advanced physics degree. McCorvey, with her survivalist instinct for lying (she tried to claim at first that her Roe pregnancy was the result of rape), and her penchant for telling loud, dirty jokes, was more Roseanne Barr than Gloria Steinem. As one biographer put it, “Her own lawyers had not much cared to know her.”
Nor, eventually, did much of the rest of the abortion rights movement. As reported in The New Yorker, ”McCorvey thought the pro-choice leaders were hoity-toity. They left her out of events commemorating Roe where she figured she should have been a featured speaker… they [tended] to see her as a loose cannon and an unreliable narrator of her own life.”
While luminaries like Gloria Allred spent the late eighties and early nineties introducing McCorvey to Hollywood glitterati like Leonard Nimoy and Valerie Harper, complaints began to arise about her attempts to squeeze money out of activism they, with their law degrees and media jobs, were doing on principle. The New Yorker compared her to “an ornery barfly” buzzing around past closing time.
A look at the hard numbers of what McCorvey actually received, though, offers some hints as to why she might have had to scrape and hustle. NBC paid her not much more than $10,000 for a 1989 TV movie about her life. And the ghostwriter of her HarperCollins autobiography admitted to Vanity Fair that the advance she received was “not a fortune.”
Eventually, having made the right to get an abortion her business, McCorvey was squirreled away answering phones at a Dallas clinic. It was there she met fiery Christian evangelist and Operation Rescue director Flip Benham.
An Activist for Life
Like McCorvey, Benham, a southerner and former saloonkeeper, had a flair for getting attention. In 1995 he rented offices next door to her clinic.
Though ideological opponents, the pair seemed to share a certain likemindedness, with McCorvey later offering this subtle rebuke to her feminist former colleagues: “He doesn’t make me feel bad about myself.” The friendship they struck up soon had McCorvey calling Benham “Flipper” and him dubbing her “Miss Norma.” Within months, Benham announced he had led McCorvey to Christ and newfound convictions about the sanctity of life. The one-time poster-child for Roe was ready to face the cameras for the other side.
Speaking for much of the pro-abortion rights movement, Weddington was hardly bothered to see her former client go. “All Jane Roe ever did was sign a one-page legal affidavit,” she said by way of good riddance.
If that movement was embarrassed to have McCorvey as its face, pro-lifers were all too happy to put her in front of their cameras. Benham helped her set up a pro-life ministry, Roe No More, that paid her $40,000 a year and connected her with publisher Thomas Nelson for a new memoir that provided an $80,000 advance.
She remained outwardly committed to the cause of life for the next 22 years, making public appearances, giving speeches, and, in 2005, testifying before the U.S. Senate for a hearing in which she pleaded with the lawmakers to do “everything in [their] power to reverse Roe v. Wade.”
The curtain seemed to fall on McCorvey’s second act, however, with a 2017 interview for “AKA Jane Roe.”
An Uncertain Legacy
Billed as her deathbed confession, the documentary’s three-minute scene that launched a thousand headlines found McCorvey telling Sweeney, “If a young woman wants to have an abortion, that’s no skin off my ass. That’s why they call it choice.”
The filmmaker played the moment for maximum drama, juddering the camera to underscore the significance of the revelation before cutting to gasps from Allred and tears from feminist icon Charlotte Taft. It proved, The New York Times said, that her “pro-life conversion was a con.”
But other questions her answer should have brought to mind interested The Times, The Washington Post, and the rest of the abortion-friendly media considerably less. McCorvey said she switched sides in 1995 for financial gain, cackling as she added, “I am a good actress.”
By then, heart failing and broke again, she had largely faded from the pro-life circuit, though she maintained many relationships within it, often living with these friends when she had nowhere else to go. Still, Sweeney was there, paying attention to her. Did he pay her money for a performance as well? That’s a question he hasn’t answered.
No abortion rights activists that worked with McCorvey during her Roe days have ever come forward to argue that she told them something similar near the end. Of course they can’t because they no longer knew her. The same can’t be said for the pro-lifers, many of whom kept up contact and insist, the dramatic documentary scene notwithstanding, that her commitment to life was real.
“I know she felt that there were people who used her because they saw her more as Jane Roe than as Miss Norma,” Operation Rescue volunteer Troy Newman told Christianity Today in 2020. “But to me, she was always Miss Norma. She was my friend, and I loved her. She was the Rosa Parks of the pro-life movement, and it was our responsibility to take care of her. It was our privilege to do so.”
Abby Johnson, herself a Roe-like figure as a one-time-Planned-Parenthood-director-turned-life-advocate, told evangelical news outlet World Magazine that McCorvey called her days before her death. She wanted to speak to someone who could understand the spiritual burden she felt she carried at being the cause of many abortions. Johnson recommended that if the World reporter wanted a complete portrait of McCorvey, he should also get in touch with Father Frank Pavone.
The National Director of Priests for Life, Pavone was perhaps closer to McCorvey than any other pro-life leader, having overseen her conversion into the Catholic church. He pointed out that her supposed deathbed confession was filmed nine months before she died and has called on Sweeney to release all the footage of their interviews. It’s a call the filmmaker has so far declined.
“She could be erratic, but her journey isn’t captured in a single story,” said Pavone, who spoke with McCorvey the day she died and officiated her funeral. Another friend from her pro-life days, Karen Garnett, gave her eulogy.
McCorvey’s biographer, Joshua Prager, believes that it is much more likely that the big “bombshell” that captured so much media attention two years ago represented Jane Roe making one final bid for the spotlight. “When she decided that people were being high and mighty with her, it was enough to send her skittering back and forth across what seemed to others like profound dividing lines of conscience and belief.”
But one thing is certain. In the end, only one side was still in Norma McCorvey’s life. And it was the same side that told her, from womb to tomb, life is precious.
An Unplanned Pregnancy Didn’t Stop Me From Reaching My Goals. Now I Work To Support Other Women.
I am a call manager at the Center for Pregnancy Choices (CPC) in Jackson, Mississippi, a nonprofit providing counseling services to women facing unexpected pregnancies. Some would say I am perfect for this role – I faced two difficult unexpected pregnancies myself. Today, I give back so other women know they are not alone.
In my work at the clinic, I sometimes receive calls from women who just found out they are pregnant and in need of help. Many are looking for a listening ear or the resources to make their own decision. Most of them are anxious and unsure.
I can relate. An unexpected pregnancy threatened my educational goals.
When I was a senior in college, a positive pregnancy test stalled me in my tracks, blurring my hopes for graduation and grad school. I was overwhelmed with panic, fear, and stress.
What would I do? How would I finish school? What would my boyfriend and parents say? What would the members of my Christian college community think? I doubted whether I could handle a baby while simultaneously completing my education.
Yet, amidst the wave of panic and stress, I knew I had somewhere to turn.
Through CPC, I was provided with a list of doctors to see, prenatal vitamins, free counseling, an ultrasound, parenting classes and other support. They even helped me navigate telling my parents.
Unlike some girls facing unexpected pregnancies, I was blessed to have supportive parents. My boyfriend at the time – who is now my husband – was also very supportive.
Still, the road was far from easy. I knew I wanted to further my education despite my unexpected pregnancy, however, this required many sacrifices. It was tough to walk around campus and attend classes with a visible bump. At times, I felt the disapproval of other students in my campus community. Juggling classes with pregnancy appointments and battling morning sickness was extremely difficult.
Thankfully, my college professors allowed me to finish my classes at home during my pregnancy, which helped me to graduate only one semester behind.
While at graduation, my boyfriend surprised me by proposing.We got married that summer after college, right before we started graduate school in August.
Though the journey was hard, bittersweet moments like these helped me realize I made the right choice.
My experience inspired me to work at CPC while attending graduate school – where I found out I was pregnant again. This time I knew I had the support of CPC and they stepped in to help ease the process.
Now I give back so that others have the support and resources that I did. Through CPC, I was able to recognize the need to let women know there are alternatives to abortion, and support systems in place should they choose life.
My experience with an unexpected pregnancy has enabled me to empathize and encourage these women. So many women are like I once was – shocked, afraid, and unsure. Through my work, I seek to give women hope, and to give them the strength and resources necessary to shoulder the burdens of an unexpected pregnancy.
In addition to my work at the CPC, I am currently pursuing a doctorate in public health. Did I mention I love education? My dissertation focuses on the correlation between mental health illness and unplanned pregnancy, and it emphasizes the importance of maternal mental health screenings, counseling, and support for women, so that they have a healthy pregnancy outcome for both mother and child.
Just a few years ago, staring in panic at my first positive pregnancy test, I never thought that pursuing my DrPH would be possible.
But it was. Through the support from CPC and my loved ones, I knew that my goals could be met without ending the life of my child. More importantly, I found beauty and grace in a journey that gave me a new life calling, and a deep desire to give back. Each of my children have blessed my life in countless ways, and I am thankful for the people and support networks that encouraged me to fulfill my goals and dreams, even after experiencing two unplanned pregnancies.
Today, when I talk to women who call our center, I am constantly reminded of my journey and those who made it possible. I find joy in being able to help women as I was once helped, and in sharing the message that I’ve learned over the years: You’re stronger than you think.
Five Reasons To Celebrate The Overturning Of Roe
As pro-life believers across America are shouting for joy and giving thanks for the overturning of Roe, many women in America are terrified right now, causing them to be more muted in their celebration. It’s as if they still believe others can dictate what they do with their own bodies.
How should we respond?
Indeed, this is not the time to gloat. And with all my heart, I believe we must do our best to reach out to those who are angry and fearful, and demonstrate love, longsuffering, and grace. This is not the time to win a debate as much as the time to change hearts and minds.
But without any question whatsoever, this is also a time to rejoice, with everything within us. This is a time to give God praise!
Here are five reasons why.
1. The overturning of Roe is a massive answer to prayer.
Think about it for a moment. There has been prayer all day and night for Roe to be reversed for years. Prayer meetings have been held for decades. Large rallies were organized for supplication to the Lord. Countless prayers have reached the throne of God asking Him to have mercy on the unborn. People have fasted, cried out and made all kinds of sacrifices for this moment.
How can we not rejoice and give thanks? God has acted! The Sovereign Lord has responded to the cries of His people! It would be ungrateful, not to mention irreverent, if we failed to worship Him, praise Him and celebrate.
This is a constant theme of the Bible: God’s people cry out, He answers from heaven, and we give Him praise.
In this case, we are looking at what might be the most dramatic answer to prayer on a corporate level that we have seen in our lifetimes. In the words of Jesus in another context, if we do not lift our voices in praise, the rocks will cry out instead (Luke 19:40).
2. The lives of innocent babies will be saved.
Abortion on demand is a monstrous evil. The shedding of innocent blood is one of the most grievous sins in God’s sight. And the more we understand about the development of the baby in the womb – with scientists largely agreeing that life begins at conception and with the child receiving its DNA coding at that moment – the more we realize that there is a little human being in there.
A former Planned Parenthood worker wept on my radio show for that very reason, as she talked about the “products of conception.” She was referring to the jars kept in one of the rooms of the clinic filled with the severed parts of tiny humans.
And while the Court’s decision does not outlaw abortion throughout the country, it is already saving lives. That’s because clinics are shutting down in different states, which means that more women will think again before they abort, which will result in less abortions.
How can we not give thanks — loudly and publicly — for this?
3. A massive injustice was reversed.
The Roe decision of 1973, followed by the Casey decision of 1992, was not just bad law. It was massively unjust. It claimed that there was a constitutional right to abortion, thereby turning justice and righteousness on their heads.
Not only so, but the legalizing of abortion on demand (potentially, for any reason, right until the moment of delivery), normalized the idea of abortion in America. As my friend Dr. Frank Turek has often pointed out, the law can do one of three things. It can prohibit a behavior, permit a behavior, or promote a behavior.
In the case of abortion, just as in the case of the redefining of marriage, the Court’s 1973 decision helped to promote something aberrant in our land. The new ruling — the correct ruling — goes a long way to set that right.
Abortion has been a way of life for tens of millions of Americans for almost 50 years. We’ve grown up with it as normative. Reversing it is a massive return toward goodness.
Remember this principle, which is still applicable, as you read through the Old Testament. God hates unjust laws. It is important in His sight that they are removed and replaced.
For this we give Him thanks.
4. Many women’s lives will be saved.
The fact is that mothers are also deeply wounded by abortion. Many carry scars for years. And so, in the end, less abortions will mean less women who are damaged and hurt.
I’ve heard these stories on my radio show as well, as these women (and even men) sobbed as they recounted abortions they had decades ago — and these were Christian women who knew they were forgiven. Some of them told me that they were strongly pro-choice when they aborted their babies, and they remained pro-choice for years afterwards. But all the while, they suffered from guilt and pain, especially around the time their babies would have been born. It was only when they came to faith that they experienced mercy and relief.
Now is the time to reach out to today’s “pro-choice” supporters with the love of God. Now is the time for us to say, “We know you’re angry and afraid, and we know you blame us. But there is a God who really cares about you and has only good intentions for you. Consider putting down your defenses. Acknowledge your sins, and surrender your life to Him.”
This too, even in advance, is a cause for thanksgiving.
5. We can now make the argument for life on a national level.
Although critics claim that the Court’s decision was a threat to our democracy, the reality is that abortion now becomes a matter of legal debate from state to state. I do not mean that states have a moral right to kill babies. But I recognize that, under our democratic republic, the states will make the ultimate decisions.
This is also a great time to discuss Justice Alito’s decision, asking those who differ, “Where did he get things wrong?”
The fact is that Roe was bad law from the start. Removing it is cause for celebration, not just for these five reasons, but, looking ahead, for millions of reasons, each with a beating heart.
It’s also a time to remember all the lives that have been lost. We need God’s ongoing intervention in our land!
TIMELINE OF IMPORTANT REPRODUCTIVE FREEDOM CASES DECIDED BY THE SUPREME COURT
Since its founding in 1920, the ACLU has recognized that personal privacy and reproductive rights are among our most important constitutional liberties. In its earliest years, the ACLU defended activists like Margaret Sanger and Mary Ware Dennett when officials tried to prevent them from speaking and publishing about human sexuality, reproduction, and contraception. In the succeeding decades, we were pioneering legal advocates for the right to contraception, the right to abortion, and the right to bear a child.
When we go to court to defend these principles, we litigate in association with our affiliates around the nation and often with other allies as well. In 1974, the ACLU created its Reproductive Freedom Project to defend and expand the right to choose. As the following list indicates, we have been involved, in one way or another, with virtually all of the major Supreme Court cases dealing with reproductive freedom.
Griswold v. Connecticut
381 U.S. 479
The ACLU filed a friend-of-the court brief in this landmark case in which the Supreme Court struck down a state prohibition against the prescription, sale, or use of contraceptives, even for married couples. In Griswold v. Connecticut, the Court held that the Constitution guarantees a “right to privacy” when individuals make decisions about intimate, personal matters such as childbearing.
United States v. Vuitch
402 US 62
The ACLU’s general counsel, Norman Dorsen, argued this case — the first about abortion to reach the Supreme Court. In United States v. Vuitch, a doctor challenged the constitutionality of a District of Columbia law permitting abortion only to preserve a woman’s life or health. The Court rejected the claim that the statute was unconstitutionally vague, concluding that “health” should be understood to include considerations of psychological as well as physical well-being. The Court also held that the burden of proof should be on the prosecutor who brought charges, not on the doctor.
Eisenstadt v. Baird
405 US 438
The ACLU filed a friend-of-the-court brief in Eisenstadt v. Baird, in which the Supreme Court struck down a Massachusetts law limiting the distribution of contraceptives to married couples whose physicians had prescribed them. This decision established the right of unmarried individuals to obtain contraceptives.
Roe v. Wade
410 US 113
The ACLU’s general counsel, Norman Dorsen, was a member of the team of lawyers representing the plaintiffs in the landmark abortion rights case, Roe v. Wade. This case challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.
Doe v. Bolton
410 US 179
The ACLU argued Roe’s companion case, Doe v. Bolton, in which the Supreme Court overturned a Georgia law regulating abortion. The law prohibited abortions except when necessary to preserve a woman’s life or health or in cases of fetal abnormality or rape. Among other conditions, the law also required that all abortions be performed in accredited hospitals and that a hospital committee and two doctors in addition to the woman’s own doctor give their approval. The Court held the Georgia law unconstitutional because it imposed too many restrictions and interfered with a woman’s right to decide, in consultation with her physician, to terminate her pregnancy.
Bigelow v. Virginia
421 US 809
In Bigelow v. Virginia, an ACLU case, the Supreme Court ruled that states could not ban advertising by abortion clinics. Such bans violate the First Amendment’s guarantees of freedom of speech and freedom of the press.
Bellotti v. Baird
443 US 622
The ACLU represented plaintiffs challenging a Massachusetts statute requiring women under 18 to obtain parental or judicial consent prior to having an abortion. The Court found the statute unconstitutional because, as it was interpreted by the state’s highest court, it gave either a parent or a judge absolute veto power over a minor’s abortion decision, no matter how mature she was and notwithstanding that an abortion might be in her best interests. Bellotti v. Baird established that all minors must have the opportunity to approach a court for authorization to have an abortion, without first seeking the consent of their parents, and that these alternative proceedings must be confidential and expeditious.
Harris v. McRae
448 US 297
In Harris v. McRae, the Supreme Court rejected a challenge to the Hyde Amendment, which banned the use of federal Medicaid funds for abortion except when the life of the woman would be endangered by carrying the pregnancy to term. The ACLU was co-counsel in this case and played a pivotal role in coordinating challenges to similar state funding bans. Although the lawsuit challenging the federal ban was unsuccessful, the ACLU and its allies did succeed in the ensuing years in overturning many state funding bans.
City of Akron v. Akron Center for Reproductive Health
462 US 416
In City of Akron v. Akron Center for Reproductive Health, the ACLU scored an important victory when the Supreme Court struck down all ofthe challenged provisions of an Akron, Ohio, ordinance restricting abortion. Among other holdings, the Court ruled that the city could not: require minors under 15 to obtain parental or judicial consent for an abortion; require physicians to give women information designed to dissuade them from having abortions; impose a 24-hour waiting period after the signing of the consent form; or require that all second-trimester abortions be performed in a hospital.
Bolger v. Youngs Drug Products Corporation
463 US 60
The ACLU filed a friend-of-the-court brief in this challenge to a federal law that made it a crime to send unsolicited advertisements for contraceptives through the mail. The Supreme Court held the law to be unconstitutional because it violated the First Amendment’s protection of “commercial speech” and impeded the transmission of information relevant to the “important social issues” of family planning and the prevention of venereal disease.
Thornburgh v. American College of Obstetricians and Gynecologists
476 US 747
The ACLU participated in this case, in which the Supreme Court struck down, among other abortion restrictions, a provision of a Pennsylvania statute requiring doctors to use abortion techniques that maximized the chance of fetal survival, even when such techniques increased the medical risks to the pregnant woman’s life or health.
Bowen v. Kendrick
487 US 589
The ACLU represented plaintiffs who challenged the Adolescent Family Life Act, which authorized the use of federal funds to teach the value of “chastity” in the context of social and educational services for adolescents. Many of the grantees were religious organizations. The Court rejected the claim that the Act, on its face, violated the First Amendment’s prohibition of the establishment of religion. It sent the case back to a lower court to determine whether the Act was unconstitutional as administered — whether actual grants made under the Act were used impermissibly to promote religious views or to engage in religious practices.
Webster v. Reproductive Health Services
492 US 490
The ACLU participated both in representing the plaintiffs and in coordinating the production of more than 30 friend-of-the-court briefs in Webster v. Reproductive Health Services. The case was a challenge to a Missouri law that forbade the use of public facilities for all abortions except those necessary to save a woman’s life, required physicians to perform tests to determine the viability of fetuses after 20 weeks of gestation, and imposed other restrictions on abortion. The Supreme Court upheld these anti-choice provisions, opening the door to greater state regulation of abortion. The Court did not, however, accept the invitation of the United States Solicitor General and others to use the case as a vehicle for overruling Roe v. Wade.
Hodgson v. Minnesota
497 US 417
This case was a challenge to a state law that required a minor to notify both biological parents before having an abortion. It made no exception for parents who were divorced, who had not married, or who were unknown to their daughters. In Hodgson v. Minnesota, the ACLU secured for teenagers the option of going to court to obtain authorization for an abortion, when they could not or would not comply with a parental notification law.
Rust v. Sullivan
500 US 173
The ACLU represented Dr. Irving Rust and other family planning providers who challenged the Reagan Administration’s “gag rule” barring abortion counseling and referral by family planning programs funded under Title X of the federal Public Health Service Act. Under the new rule, clinic staff could no longer discuss all of the options available to women facing unintended pregnancies, but could only refer them for prenatal care. Even though the rule reversed 18 years of policies that had allowed non-directive, comprehensive options counseling, the Court upheld it. (President Clinton rescinded the “gag rule” by executive order shortly after his inauguration in 1993.)
Planned Parenthood of Southeastern Pennsylvania v. Casey
505 US 833
This case was a challenge to a set of onerous restrictions on abortion enacted in Pennsylvania. As in 1989, the ACLU fought to prevent the Supreme Court from overruling the core holdings of Roe v. Wade. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court preserved constitutional protection for the right to choose. But it adopted a new and weaker test for evaluating restrictive abortion laws. Under the “undue burden test,” state regulations can survive constitutional review so long as they do not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Schenck v. Pro-Choice Network of Western New York
519 U.S. 357
In this case, the ACLU filed a friend-of-the-court brief defending the constitutionality of two provisions of an injunction obtained by abortion clinics in western New York as a remedy against blockades and other disruptive forms of protest. The Supreme Court upheld a fixed 15-foot buffer zone around clinic doorways, driveways, and parking lot entrances. It struck down a floating 15-foot buffer zone around people or vehicles entering or leaving a clinic.
Stenberg v. Carhart (Carhart I)
530 U.S. 914
In this case, the ACLU filed a friend-of-the-court brief calling on the Court to invalidate Nebraska’s so-called “partial-birth abortion” ban. Sending a strong message regarding the paramount importance of women’s health, the Court struck Nebraska’s law on two independent grounds: the ban’s failure to include a health exception threatened women’s health, and the ban’s language encompassed the most common method of second-trimester abortion, placing a substantial obstacle in the path of women seeking abortions and thereby imposing an “undue burden.”
Ferguson v. City of Charleston
532 U.S. 67
In this case, the ACLU filed a friend-of-the-court brief urging the Court to void a South Carolina public hospital policy mandating drug testing of pregnant women. In a 6-3 decision, the Court held that the Fourth Amendment does not permit the state, acting without either a warrant or individualized suspicion, to drug test pregnant women who seek prenatal care in a public hospital. Furthermore, the Court insisted on the importance of confidentiality in the medical context. dissent, Justice Ruth Bader Ginsburg attacked the majority for placing women’s health at risk and for undermining women’s struggle for equality. She wrote, “[women’s] ability to realize their full potential . . . is intimately connected to ‘their ability to control their reproductive lives.'”
Ayotte v. Planned Parenthood of Northern New England
546 U.S. 320
The ACLU argued this case before the Supreme Court on behalf of the New Hampshire clinics and physician who brought this legal challenge. In a unanimous ruling, the Court reiterated its long-standing principle that abortion restrictions must include protections for women’s health. The case began as a challenge to a New Hampshire law that required doctors to delay a teenager’s abortion until 48 hours after a parent was notified, but lacked a medical emergency exception to protect a pregnant teenager’s health. The lower courts struck down the law because of this omission. The Supreme Court vacated and remanded the case, instructing the lower court to consider whether the New Hampshire legislature would have wanted this law with a medical emergency exception. If not, the Court said the law should be struck down in its entirety. No matter what, the Court said the law must be blocked in those cases where teens face medical emergencies.
Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc. (Carhart II)
127 S. Ct. 1610
The ACLU filed friend-of-the-court briefs in both cases urging the Court to strike down the first-ever federal ban on abortion methods. Notably, the ban fails to include an exception to protect women’s health. (Three legal challenges were brought against the ban, called the “Partial-Birth Abortion Ban Act of 2003.” The ACLU’s challenge, National Abortion Federation v. Gonzales, remained on hold in the U.S. Court of Appeals for the Second Circuit while the U.S. Supreme Court considered the other two cases.) In a 5-4 decision, the Court upheld the federal ban, undermining a core principle of Roe v. Wade: that women’s health must remain paramount. In so doing, the Court essentially overturned its decision in Stenberg v. Carhart (Carhart I), issued only seven years earlier. Writing for the majority, Justice Kennedy evoked antiquated notions of women’s place in society and called in to question their decision-making ability. Furthermore, Kennedy held that in the face of “medical uncertainty” lawmakers could overrule a doctor’s medical judgment and that the “State’s interest in promoting respect for human life at all stages in the pregnancy” could outweigh a woman’s interest in protecting her health. In an impassioned
Abortion is among the most contentious issues in the country today. On December 1st, the Supreme Court will hear the first abortion case since Justice Amy Coney Barrett was seated and cemented a solid 6-3 conservative majority on the bench. The case under consideration, Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, involves a Mississippi law banning all abortions over 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. In this case, Mississippi is asking the Court to overturn the long-standing precedent of Roe v. Wade. While the Supreme Court has considered other abortion cases involving state regulations, this is the first case that the high court has taken in which a state is directly asking the Court to overturn the constitutional right to abortion. This issue brief provides background on the legal challenges to the Mississippi law in the context of the Supreme Court abortion precedents, addresses the intersections with the litigation that has arisen from S.B. 8, the Texas 6-week abortion ban, and explains the potential outcomes and how they could impact access to abortion around the country.
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