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In the 6-3 majority opinion, Dobbs v. Jackson Women’s Health Organization authored by Justice Samuel A. Alito, the court ruled there is no national right to abortion.
“The Constitution does not confer a right to abortion,” Alito wrote in his 78-page opinion. “Roe and Casey are overruled; and the authority to regulation abortion is returned to the people and their elected representatives.”
The decision came after an unprecedented leak May 2 of a first draft majority opinion written by Alito.
Justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas, Amy Coney Barrett, and Chief Justice John G. Roberts concurred with Alito’s opinion that the right to abortion isn’t deeply rooted in the nation’s history or tradition. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented together, citing stare decisis, and expressed reluctance to overturn the long-standing Roe precedent.
Alito scoffed at such reasoning, labeling the 1973 Roe decision an abuse of judicial authority. Adherence to precedent is hardly an “inexorable command,” he declared.
“We hold that Roe and Casey must be overruled,” Alito wrote. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one in which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
In great detail, Alito enumerated the legal reasoning failures of Roe. He noted that abortion had been a crime in every state for most of the nation’s 246 years.
“Roe was egregiously wrong from the start,” Alito wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He said the Supreme Court usurped the power of the states to address a question of profound moral and social importance. Roe failed to ground its decision in text, history, or precedent, Alito said.
Alito also faulted the notion that the court shouldn’t reverse its previous precedents. He observed that the unanimous Brown v. Board of Education decision in 1954 repudiated the infamous “separate but equal” racial doctrine established by the 8-1 ruling of Plessy v. Ferguson in 1896.
The Dobbs case marked the most significant challenge to the availability of abortion since the U.S. Supreme Court legalized the procedure 49½ years ago with the landmark 7-2 Roe v. Wade decision — which negated statutes that had limited it in 46 states. A 1992 case, Planned Parenthood v. Casey, narrowed yet reaffirmed Roe.
Only two years ago — before the appointment of Barrett — in a 5-4 decision the high court ruled unconstitutional a Louisiana law requiring abortionists to have admitting privileges at a regional hospital.
The Mississippi law that formed the basis for Dobbs v. Jackson Women’s Health Organization banned most abortions after 15 weeks of gestation. Since Roe, states have been prevented from restricting abortion before fetal viability — around 28 weeks after fertilization in 1973, but now about 23 weeks of pregnancy.
Alito noted that in the first 185 years of the nation, states had the right to determine the issue for themselves. He criticized Roe for conferring a broad right to obtain an abortion through the “exercise of raw judicial power” when the Constitution is silent on the matter. He pointed out that 30 states prohibited abortion at all stages before Roe.
Roe imposed a trimester viability test for abortion. Casey substituted a new regulation forbidding states to impose an “undue burden” on a woman’s right to abortion.
In his arguments before the court last December, Mississippi Solicitor General Scott G. Stewart declared he would like to see the Supreme Court limit abortion to less than 15 weeks.
“Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart proclaimed before the justices. “They have no basis in the Constitution. They’ve damaged the democratic process. They’ve poisoned the law.”
Stewart noted that the Supreme Court has never recognized the right to end a human life other than Roe.
In the 6-3 Dobbs ruling, Thomas, Kavanaugh, and Roberts wrote separate concurring opinions.
Thomas emphasized that “there is no abortion guarantee lurking in the Due Process Clause.” He noted that nothing in the ruling will cast doubt on precedents unrelated to abortion, such as same-sex marriage. Thomas said more than 63 million abortions have been performed in the U.S. since “the fabrication of a constitutional right to abortion.”
Kavanaugh stressed that the ruling doesn’t outlaw abortion throughout the nation — as the Roe ruling granted access everywhere.
“The Roe Court took sides on a consequential moral and policy issue that this Court had no constitutional authority to decide,” Kavanaugh wrote. He pointed out that 21 states had filed amici briefs related to Dobbs requesting that abortion continue.
Roberts agreed that the viability line established by Roe should be discarded. Yet while he concurred with the majority opinion in Dobbs, he questioned whether the justices had the authority to eliminate the abortion right first recognized in Roe.
NEW STATE LAWS
With federal courts often blocking or overturning congressional laws, various state legislatures during the Obama presidency began enacting measures to chip away at Roe.
More recently, 26 states expressly asked the high court to overturn Roe and Casey. Almost half the states in the union have passed laws banning most abortions in the event of Roe being overturned.
For instance, Oklahoma Gov. Kevin Stitt, an AG adherent, signed legislation in May banning nearly all abortions starting at fertilization. State legislatures enacted more abortion restrictions last year than in any previous year in U.S. history.
Conversely, over a dozen states — including heavily populated California, New York, and Illinois — have enacted legislation that provides virtual unfettered access to abortion until the moment of birth. In addition — after the leak of the draft document — various corporations, including Amazon, Apple, Microsoft, and Starbucks, announced plans to pay for employees to travel to receive an abortion. Vandals have damaged more than two dozen pregnancy help centers throughout the U.S. since the leak.
According to the abortion rights research organization the Guttmacher Institute, 930,160 abortions occurred in the U.S. in 2020, up from 863,320 three years earlier. The 2020 figures represented more than one in five pregnancies in the nation.
AG legal counsel Kristen K. Waggoner lauded the ruling.
“The Supreme Court’s decision is a major victory for unborn children and their mothers,” said Waggoner, who became new counsel for the Fellowship in January, while retaining her role as general counsel for Alliance Defending Freedom. “Laws across the country can now affirm that life is a human right and ensure women have greater access to the support and resources they need and deserve.” Attorneys for the Scottsdale, Arizona-based ADF served on Mississippi’s legal team in the Dobbs case.
Waggoner, who has argued before the U.S. Supreme Court, said the battle continues.
“We now turn to the states to ensure that unborn children and their mothers are protected from the gruesome reality of abortion, and that they receive the care and resources they need to flourish,” Waggoner said.
Cindi Boston, vice president of the Columbus, Ohio-based Heartbeat International, the world’s largest pregnancy help movement organization with over 2,250 U.S. centers and nearly 3,100 global affiliates, said the pro-life movement is now entering a new phase.
“The work at Heartbeat International and our affiliates is not over, and in fact, in many ways, is just beginning,” said Boston, a graduate of Evangel University. “Women still need compassionate care and support, and we continue to be here to offer practical resources and life-affirming options throughout our network of pregnancy help, as we have been doing for more than 50 years.”
Sheila L. Harper, founder of the AG abortion-recovery ministry SaveOne based in Hendersonville, Tennessee, likewise stressed that that the decision doesn’t result in the end of abortion in America.
“Although overturning Roe is cause to celebrate, now each state is going to determine if and to what degree they will be voting to perform genocide on a class of people,” said Harper, who noted that three SaveOne chapters have experienced domestic terrorism since the document leak. Save One has 353 chapters in 28 nations.
Harper predicted there will be an increase in the number of chemical abortions, which already account for over half the abortions in the nation. Abortion pills — namely mifepristone (RU-486) for the first round and misoprostol for a required second dose — can be ordered over the internet.
“No doctor is needed to determine how far along the girl is, or even if there is an ectopic pregnancy, making this procedure very dangerous,” Harper said. “The trauma is much greater with this type of abortion because the girl is performing an at-home abortion.”
Harper is pleased there will be fewer abortions performed in the U.S.
“But it will mean far more women and men dealing with unplanned pregnancies, needing help and resources,” Harper said. “I pray our churches will be the beacon of light in their communities for these often frightened individuals in need of care, mercy, love, and help. Foster care and adoption will need to be readily available in our churches, too.”
Assemblies of God General Superintendent Doug Clay agreed that Christians must be prepared to offer life-affirming alternatives to abortion.
“I’m thankful to God for this historic day to celebrate life,” Clay said. “It’s not a day to gloat, but to rejoice and give thanks to the Lord of life. It’s a day to continue our efforts in creating a culture of life in the communities we serve.”
Before the Supreme Court ruling, the U.S. had been one of only seven countries that allow abortion on demand after the 20th week of gestation.
Tags: U.S. Supreme Court Dobbs v. Jackson Women’s Health Organization Roe v. Wade Planned Parenthood v. Casey Samuel Alito Neil Gorsuch Brett Kavanaugh Clarence Thomas Amy Coney Barrett John Roberts Kristen Waggoner Cindi Boston Sheila Harper Mississippi Scott Stewart Heartbeat International SaveOne Kevin Stitt Evangel University Doug Clay Brown v. Board of Education Plessy v. Ferguson Guttmacher Institute