On Friday, June 24, 2022, the United States Supreme Court issued its opinion in the case of Dobbs v. Jackson Women’s Health Organization, overturning the Supreme Court cases of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In a Supreme Court term dealing with numerous controversial issues (religious free exercise and establishment, administrative law, right to bear arms), this one certainly was one of the most consequential terms of the last fifty years.
It is important to understand both what the Dobbs decision means and does not mean and what we as Christians need to be prepared to do moving forward. To better understand this decision, it is important to first grasp the role of the United States Supreme Court and how it operates and then to understand the improper opinions of Roe and Casey and why the Dobbs decision makes good, albeit incomplete, judicial sense. Finally, we will consider the impact of Dobbs, as well as the crucial work that remains for those who seek to defend the sanctity of life.
The United States Constitution established the Supreme Court as the highest court in the United States. The totality of its responsibilities is not explicit from the text requiring Congressional action and precedential caselaw to fully develop its role in American jurisprudence and Constitutional law.
Our founders were largely consistent in understanding the role of the courts and the concept of judicial review. Famously, Justice John Marshall clarified in the case of Marbury v. Madison that the purpose of the court is “to say what the law is.” This somewhat ambiguous statement is given greater clarity by Alexander Hamilton, in Federalist Paper #78, where he determined one of the responsibilities of the court was to ensure that actions taken by the government maintained a fidelity to the United States Constitution: “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.” Hamilton’s assertion is that the court is to act as a check on legislative (and executive) action, ensuring obedience with the United States Constitution. Today we understand this authority as not only evaluating the actions of our federal government but also those of our state and local governments.
Judicial review is a proper authority of the Supreme Court. Whether it is applied correctly or not is a different question. The Supreme Court in Dred Scott v. Sanford ruled that a person of African descent could never expect the same rights of citizenship as Caucasian- Americans. In Plessy v. Ferguson, the court ruled that the doctrine of separate but equal (legitimizing segregation) was constitutional; and in Roe v. Wade, the court decided that a woman’s decision to terminate her pregnancy was fundamental to a right of privacy and personal autonomy.
To understand the Roe opinion, it is important to turn back a few years earlier to the 1965 decision of Griswold v. Connecticut (which ruled as unconstitutional Connecticut’s prohibition on the sale and use of birth control by married couples as violative of fundamental liberty including a right to marital privacy). In Griswold, Justice William O. Douglas explained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Put simply, Justice Douglas concluded that even though not explicitly granted in the Constitution, a right of privacy existed that allowed for reproductive privacy rights, even though not officially conferred by the Constitution proper or the amendments. What Justice Douglas effectuated was an incorrect usage of the Due Process clause to “discover” unenumerated substantive due process rights. This was done although no such consensus existed at the time, as over half of the states had criminal penalties for those involved in performing abortions.
From the justification in Griswold, the Supreme Court expanded their interpretation of the “right of privacy” to include not only the right to be free from state interference when determining whether to use birth control to prevent a pregnancy to the right of women to terminate their pregnancies. In a significant expansion of this supposed right of privacy from Griswold, Justice Blackmun concluded with the majority in Roe v. Wade that this extended to not only whether to use birth control to prevent pregnancy, but now to terminate a pregnancy, all found within the right to privacy.
Justice Rehnquist disagreed with the legal reasoning of Roe, writing in dissent: “I have difficulty in concluding, as the Court does, that the right of ‘privacy’ is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word. Nor is the ‘privacy’ that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.” Rehnquist’s conclusion was that no such right of privacy to terminate a pregnancy exists under our Constitution, as the majority had determined.
Between 1973 and the present, the other significant abortion rights case preceding the 2022 Dobbs decision was Planned Parenthood of Southeastern Pennsylvania v. Casey, which stemmed from the Pennsylvania Abortion Control Act (1989). This law established some restrictions and limitations to abortion access, including a 24-hour waiting period, informed consent, and parental notification for minors seeking an abortion. While these provisions were upheld, the fundamental right to terminate pregnancies was also upheld by the Supreme Court in Casey.
It is from this backdrop that we now turn to the Dobbs case. Dobbs stems from a law passed in 2019 by the state legislature in Mississippi that prohibited abortions after fifteen weeks of pregnancy. This law was passed in conflict with the precedent cases of Roe and Casey. In the opinion, Justice Alito argued that the grounding of a right to privacy, which included a right to terminate a pregnancy, is not found as an unenumerated right and that both Roe and Casey were wrongly decided. Justice Alito argued that there may in fact be unenumerated rights that are not explicitly found in the text. The way that these are established is not, however, through Supreme Court opinions. Rather, Alito argues, they are known through long-standing norms, traditions, and laws. None of these were well-established when the Supreme Court decided Roe (in fact most states had criminal laws concerning abortion). Writing for the Court, Justice Alito concluded: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” As such, it was wrong in 1973, for the Court to discover such a right.
With the overturning of Roe and Casey, it is important to understand both what this opinion does and does not do. First, what Dobbs does: it returns the laws in the United States back to the pre-Roe standard—each state through its legislature and courts will decide the abortion laws for its state. As no fundamental national protection to terminate pregnancies exists, it is now let to each state to determine what permissions and restrictions it wishes to enact. Second, what Dobbs does not do: It does not find a right to life in the Constitution, from conception or some other point. This means that the states of California, New York, Colorado, and others can legalize abortion up to the point of delivery. Explaining this new legal paradigm, the court concluded:
“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”
For Christians, the opinion is somewhat of a mixed bag. There is reason to celebrate, while at the same time much to be disappointed with, and the harsh reality is that there is still much more work to be done. The Supreme Court does not, in its opinion, find a right to life for the unborn. In fact, Justice Kavanaugh, writing a concurrence to the opinion, takes pains to make this explicit:
“On the question of abortion, the Constitution is therefore neither prolife 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.”
There is a small percentage of conservative (mostly Christian) legal scholars who do believe that the United States Constitution confers protection to the unborn from the point of conception. These scholars argue that the 14th Amendment’s protection of the right to life (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”) includes both the born and unborn. This is not, however, the opinion of the United States Supreme Court in the Dobbs decision. The hard work of cultivating this belief among our population and working through our state legislatures to ensure this protection of a right to life—and in our culture to cultivate the sanctity of life—is the crucial work that lies before us in the post-Roe world.
This article was originally published in the Fall 2022 issue of Cairn Magazine.
