The nation is now digesting the 79-page Dobbs v. Jackson Women’s Health Organization ruling that overthrows Roe v. Wade, the 1973 ruling that legalized abortion nationwide. Critics are panicking as if this means abortion is now illegal. But this decision does not make abortion illegal. What it strives to do is return to Americans what the pro-abortion Roe and Casey decisions stole from them: the right to decide the fate of abortion state by state.
In outlining this, majority opinion author Justice Samuel Alito brings up the 1896 case in which the U.S. Supreme Court actually backed racial segregation and insisted it was constitutional. Alito writes:
Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side — those who sought to advance the State’s interest in fetal life — could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
The three left-leaning justices on the high court all blasted the Dobbs ruling, writing in a fiery dissent, “It says 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.”
But Justice Brett Kavanaugh sees the Dobbs decision as returning the high court to a position of neutrality, writing in a separate opinion, “Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”
Reacting to the Dobbs decision, Steve Karlen, campaign director of 40 Days for Life, insists that now, “People are once again free to restore legal protections for the most vulnerable of our citizens.”
Karlen also told The Washington Stand, “This sends a message to the world that a country that has accepted and promoted and subsidized abortion has seen the light and can turn back.”
Reveling in this victory at the high court, Family Research Council Legal Studies Fellow Katherine Beck Johnson told Washington D.C.’s Fox 5 News this is “a historic, surreal day for the pro-life movement.”
Johnson said on the same broadcast, “We’ve been working for almost 50 years for this day. We remember the over 60 million lives lost of the unborn children as a result of Roe v Wade.”
But, she cautioned, “Our work is just beginning. We’re starting now to work to protect the unborn in each state in America, and the Supreme Court has given us the green light to start that work today.”
This ruling directly takes on those who are complaining that the Dobbs decision overturns precedent and upends a long-enduring American right to abortion supposedly guaranteed by the Fourteenth Amendment.
As the opinion states, “By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.”
Alito lays out why abortion isn’t like many other rights to autonomy and why Roe’s and Casey’s defenses of it are unjustifiable. He writes, “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’ None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.”
40 Days for Life’s Karlen praised the Court’s willingness to correct its past errors on abortion, telling TWS, “We are grateful that the Supreme Court has corrected its error of dehumanizing an entire segment of our human population.”
As for critics who warn this ruling will threaten other rights such as same-sex marriage or the right to contraception, Alito responds, “The Court emphasizes that this 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.”
That said, Alito firmly reiterated, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”
Some are already characterizing the coming days as the “post-Roe” world. And critics are already smearing the pro-life movement by saying that movement fought so hard for the unborn, but now it won’t do the hard work of actually supporting the unborn and their parents.
Mary Szoch, director of the Center for Human Dignity at Family Research Council, disagrees, telling CNN, “We’ve seen [that] the pro-life movement has always been a movement that responded with love and care for moms and dads in need. We’re calling upon churches, upon friends and neighbors to support moms and support over 2,700 pregnancy centers across the country. We know that every mom that is in need and seeks help will find a friend in the pro-life movement.” She added, “The solution to a woman facing an unplanned pregnancy is to walk with her and equip her with the resources that she needs. And pro-life legislators around the country are prepared to do that.”
Ryan Anderson, Ethics and Public Policy Center president, hopes this ruling might help Americans think longer and harder about just who the unborn are. At a Heritage Foundation “Life After Roe” symposium, he warned that for far too long, abortion advocates have dehumanized the unborn by admitting they’re human beings, but not a “human person.”
“Any time in human history when we’ve denied personhood to a class of human beings, we’ve looked back and regretted it,” Anderson said. “Whether it was with our shameful legacy of slavery, denying personhood to people with the wrong skin color. Whether it was the terrible Holocaust, denying personhood to people of the wrong ethnicity or religious background. We’ve always looked back with horror at doing it. And it’s no different with denying personhood to the unborn.”
“We know what the entity in the womb is. It’s not an alligator, it’s not a chicken, it’s not inorganic matter. It’s an unborn human being,” Anderson added. “The past 50 years has been lying, as in when the justices in the Roe opinion said, ‘We don’t presume to answer the question of when human life begins.’ They did presume to know. And they said it wasn’t till after birth. That’s the implicit logic of Roe and Casey. It was denying the reality that all of us can see with our plain eyes.”
At that same symposium, Catherine Glenn Foster of Americans United for Life observed that now that the issue of abortion will be moving from the courts to the legislatures, Americans are going to be looking for democratic accountability from politicians who’ve been able to dodge the abortion issue. Foster pointed out, “Every federal and state legislator will be directly accountable to the people who elected them for the decisions that they make and what they do to protect ... or not ... human life. And that is going to be critical. It is going to be a very good thing for the American body politic.”
Paul Strand served as senior Washington correspondent for CBN News until his retirement last year. In that position he was CBN News’s Supreme Court reporter.
