Responding to Dobbs and What's Next?
The Supreme Court overruled Roe and Casey last week in the Dobbs case. It’s hard to overstate what a momentous decision this is for justice in American life. As I wrote on Saturday, “The legacy of Roe v. Wade, a legacy that led to 63 million babies being killed, is now over. In the last 50 years, an average of 3,500 babies were aborted every single day. Today that number is much smaller. The cover for the greatest genocide in history has been removed. There are babies alive right now who would not have lived had they been conceived just months ago. We rejoice and give God thanks for that.”
For why we should celebrate and rejoice in this decision, read, “Rejoicing in Roe Overturned.”
The court’s decision has been met with pushback, protests, and threats. Democratic leaders have scaled up the threats and the rhetoric. The mayor of Chicago screamed profanities at Justice Clarence Thomas over the weekend. Protesters swarmed the Supreme Court and marched in cities like Seattle and Los Angeles. There are few issues in American life that highlight the moral and political divide like abortion.
There are also few issues as misunderstood as abortion. The moment the decision came down new soundbites and catchphrases started to make their way around social media. Rep. Alexandria Ocasio-Cortez tweeted, “Forced pregnancy is a crime against humanity” and received 750k likes. Some argued that women will die without abortions. Others say women will have no support after Roe. In the dissenting opinion, Justice Breyer wrote, “from the very moment of fertilization, a woman has no rights to speak of (p. 149).” These are monumental claims, but are they true?
What Did the Court Rule in the Dobbs Opinion?
Some of the confusion surrounding abortion stems from a misunderstanding of the Supreme Court, what it does, and what Roe v. Wade and Casey v. Planned Parenthood actually ruled. For a longer analysis of the logic of these two cases, see Michael Stokes Paulsen’s article, “The Magnificence of Dobbs” at Public Discourse. Essentially, Justice Alito argued, Roe found a right to abortion in a combination of the “liberty” reference in the due process clause of the 14th amendment and the “right to privacy” found in a combination of the 1st, 4th, 5th, and 9th amendments. Until a few years before Roe, no one had argued that the Civil War-era 14th Amendment gave women the right to abortion. Until the 1960s nearly every state had outlawed abortion. In the decision, Justice Harry Blackmun defined the “compelling” point of pregnancy at the end of the first trimester. Before that point, the 14th Amendment did not apply to the “fetus” but the mother did have a constitutional right to privacy and to terminate the pregnancy. Therefore, in the first trimester, the decision is between a woman and her doctor, in the second and third, the state can regulate abortion based on concerns for the health of the mother and with a view toward “potential life.”
But because Justice Blackmun based his argument on “potential life” defined by viability, the ruling became more arbitrary with every scientific advance. In Casey v. Planned Parenthood, the court dispatched with Roe’s trimester scheme and established “a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State.” Additionally, the court confirmed the part of Roe that allowed the state to restrict abortions after viability with an interest in the health of the mother and “the life of the fetus that may become a child.”
In the Dobbs case, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett overruled both Roe and Casey. Justice Alito wrote, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment (p. 13).”
Consequently, abortion is not a question that should be decided by the courts but by the legislature. What Dobbs did was return the issue to the states. It did not make abortion illegal in the United States. It did not even tip the question to either side. As Justice Kavanaugh wrote in his concurring opinion, “On the question of abortion, the Constitution is, therefore, neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address (p. 125-126).”
For the first time in almost 50 years, the states are able to make laws that reflect the will of the people about abortion. We’ve already seen several states sign laws that had previously been passed outlawing and permitting abortion. In states like Arkansas and Oklahoma, nearly every instance of abortion is now illegal. In states like California and New York, laws will soon pass that eliminate any restriction on abortion. Different legislatures will approach abortion differently; this is the central deliverance of the Dobbs ruling:
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives (p. 87).”
For some of the key quotes and other implications of Alito’s opinion, see this list of 10 quotes.
For an analysis of the Roberts and Kavanaugh concurring opinions, see Hugh Hewitt’s article, “Why John Roberts’ Wise Prudence Was the Wrong Answer on Abortion Law.”
For the economics of abortion law, see Jon Hilsenrath and Amara Omeokwe in the WSJ, “The Controversial Economics of Abortion Law.”
For the future of the Pro-Life movement, see Ross Douthat, “The End of Roe Is Just the Beginning.”
Opposition to the Dobbs Ruling
Democrats, progressives, and even some Christians have harshly criticized the court’s ruling. Speaking a few hours after the decision was handed down, President Biden said the court had taken a constitutional right away from women. Many others have lamented that women today wake up with fewer rights than they did 50 years ago.
“The Supreme Court took away women’s rights”
The court ruled that the right to abortion does not exist in the Constitution. The right to abortion - or the “the right to choose” which was not in Roe but in Casey - was never a constitutional right, but one given by the Supreme Court, just as it was nullified by the Supreme Court. State laws immediately went into effect after Dobbs and abortion will now be legal or illegal based on location.
“People will be forced to bear their rapist’s child”
President Biden used this line in his speech. The truth is that less than 2% of abortions cite rape as the reason. That tiny percentage (the same is true with incest) is hardly a reason to allow for the other 98%. Additionally, the moral tradeoff makes no sense. Rape is clearly wrong. A pregnancy that results from rape is an even worse development. But the child is not at fault. Killing the child for the crime of the rapist makes no moral sense. There are no wonderful outcomes in this case, but two wrongs don’t cancel out to make a right. Abortion makes a bad situation unspeakably worse.
“Pro-Lifers should be Pro-Woman not just Pro-Birth”
This catch-phrase relies on an if-this-then-that sleight of hand. If you break this down, here’s what this argument really advocates: if you do not also advocate for this long list of (often controversial) welfare items, then you can’t be against abortion. This is just a silly argument. Of course, there is more good that needs to be done. Taking a maximalist all-or-nothing position prohibits anything from ever being accomplished. But this is the point. There’s not a logical argument here, but an attempt to call hypocrisy and have pro-life advocates balk so that abortion won’t be overruled.
Additionally, most Pro-Lifers are making strides in whole family care. The myth leading up to the ruling was that Planned Parenthood was providing essential healthcare services for expecting mothers. Remember the statistic that abortion is only 3% of what Planned Parenthood provides? The number of PP clinics that have closed over the weekend might rebut that number. On the other side, many crisis pregnancy centers are ramping up to meet the needs they will face in the coming months.
For more on what Christian and other non-profit clinics provide, see this thread from Joel Berry.
For a comprehensive view of how Christians can further the Pro-Life cause in the future, see Lauren Green’s article, “After Roe, How Do We Stand for Life?”
“The church attacks women who have had abortions”
There may be churches that do not preach forgiveness and grace for those who have had abortions. I have never come across one, but any church that would take this stance is not a true church. Anyone who has had an abortion can be forgiven, can receive grace from God, can trust in Christ, and can walk by the Spirit. Abortion is a sin like any other. Our response to sin should always be repentance and restoration.
If the statistics are correct, as high as 20% of women have had an abortion. That means every church likely has women who have had abortions in the pew every Sunday. Twin errors would be shying away from talking about the sin of abortion and treating the sin of abortion any differently. In the coming weeks, we need to be especially sensitive, conscious, and proactive toward those who may really be struggling to receive God’s grace.
“Women now face forced pregnancy”
It would be impossible to take this seriously if so many people weren’t saying it. As I’ve already mentioned about the rape cases, the overwhelming majority of cases are not forced. We all know where babies come from. Contraception doesn’t always work. Surprise pregnancies happen - sometimes in less than ideal circumstances.
For too long, abortion has been an unspoken safety net for any kind of unwanted pregnancy. That option should never have been on the table. We’ve become numb to the horrible reality of seeing abortion as a way of moving on and avoiding an undesirable outcome. Now we’re being forced to shift our focus to other alternatives. There will be more babies to adopt, more families in need of support, and more families surprised and delighted by another child in their home.
The church must rise to the occasion by the agencies linked above, but we should also double down on teaching what the Bible says about children and families. Children are a blessing. They come with huge costs, but they are God’s gifts to us. As a church, we need to reframe the narrative even for many Christians. Raising children is a calling, a blessing, and a gift.
What should we do? Abortion is now illegal in many places, but our overarching goal should be to make it totally unnecessary. We should long for the day when circumstances don’t push people to think of aborting a child. We should work toward a reality that support systems are so robust that no family would consider the path of terminating a pregnancy. We will not see this vision realized in a sinful world, but we can get much closer than we are now. Here’s what we can do in the meantime.
First, we should pray. Though I believe the people who are opposed to Dobbs are wrong, the anger and fear that many people feel are real. We should talk with them, pray for them, and bear with them even as we disagree. We should pray for the children who would have been aborted and the tough road many of them face. We should pray for DHS and foster care organizations. We should pray that churches continue to meet needs and care well.
Second, we should advocate for life in our legislatures. Many states do not have laws against abortion in effect. We should advocate for the protection of the unborn in every state in America, going through the right processes and relying on the power of the legislature to make just laws.
Third, we should be energized. The overall direction of the country may not be heading the direction we prefer, but there are a lot of things going well. Just this morning the court issued another ruling protecting religious liberty. They ruled that a Florida coach should not have been fired for praying at mid-field after football games. Religious liberty protections are getting stronger in America. That’s just one of so many things we can celebrate as Christians living in America.
Fourth, we should toughen up. What the Supreme Court did in the midst of threats and assassination attempts is nothing short of courageous. These justices ruled the way they did not because they are partisan ideologues, but because they believe that this is the way America was designed to work. The court decides its cases based on the Constitution. If they - and so many Pro-Life advocates for the last 50 years - can show that kind of courage on this issue, how much more courageous should we be to do what God calls us to do?
We live in a country where we will be ostracized and threatened for our beliefs. If you stand up for what the Bible says about sexuality and gender, the exclusivity of salvation in Christ, personal holiness, or any number of issues, you will face opposition. But our lives are not meant to be free from opposition. We cannot base our worth on making everyone happy. We build our lives on doing what is pleasing to God. In this case, what is pleasing to God and what is pleasing to the majority on the Supreme Court line up. That should inspire us and give us courage.
Finally, we should thank God. The Lord often uses imperfect people and broken systems to accomplish his just will. He has certainly done that here. Let’s not get caught up in the factions and accusations. We don’t really care who gets the praise from a human perspective. The glory for protecting the unborn and standing up for the voiceless goes to God.
Dr. Cole Feix is the founder and president of So We Speak and the Senior Pastor of Carlton Landing Community Church in Oklahoma.