The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

In early December, the US Supreme Court heard oral arguments in the Dobbs v. Jackson Women’s Health Organization case, which could result in the Court overturning the 1973 Roe v. Wade decision.  The normal procedure for the Court is to hold a preliminary vote on the decision, after which the Chief Justice, John Roberts, assigns a member of the majority to write the decision, which is then reviewed and amended by the Court; a decision no doubt will be handed down in late June 2022. At this point, it is uncertain what that decision might be.  Permit me this opportunity to review the history of abortion since 1973 and then analyze the possible scenarios of what might occur in June.

First, a review of the Roe decision.  In December 1971, the Court heard oral arguments brought by an anonymous plaintiff, which contended that the Texas laws forbidding her from having an abortion were unconstitutional.  A majority of the justices agreed.  Harry Blackman was assigned the responsibility to write the opinion, but he was uncertain where in the Constitution this legal right was grounded and how late in the pregnancy the right was to be granted.  He grounded his decision on an implied right of privacy found in the Constitution.  In addition, as Joshua Prager explains, “The case was delayed by the retirement of two justices, and in September 1972, a ruling by a federal district judge offered the high court a way forward.”  In a Connecticut case dealing with abortion, district judge Jon O. Newman ruled that the state could ban abortion only from the point of viability.  So, in a 7-2 decision the Supreme Court In 1973 stipulated that states could not ban abortions before fetal viability, the point at which the fetus can survive outside the womb.  [In 1973, that was about 28 weeks, which today, due to advances in medical technology, is closer to 22 weeks.]  Roe also established a framework to govern abortion regulation based on the trimesters of a pregnancy.  In the first trimester it permitted no regulations.  In the second, it permitted regulations to protect women’s health.  In the third, it permitted states to ban abortions as long as exceptions were made to protect the life and health of the mother.  In 1992, the Court discarded the trimester framework in the landmark decision, Planned Parenthood v. Casey, allowing states to restrict abortion before viability as long as they did not impose an “undue burden” on those seeking abortions.  The result was that many states began to limit access through a series of incremental restrictions.  But the Casey decision retained what the Court called Roe’s “essential holding”—that women have a constitutional right to terminate their pregnancies until fetal viability.

Second, how might the Court rule on the Mississippi case this coming June?  There are basically only two possibilities:

1. The Court may vote to overturn the 1973 decision Roe v. Wade.  In doing so, this would not end abortion in America, but would return the issue to the states.  Because Roe negated abortion statutes in 46 states and the District of Columbia, abortion will once again become a state issue, with in effect 50 different abortion statutes with 50 different regulatory boundaries.  In other words, all 50 states would be left to draw the line between legal and illegal abortions for themselves.  As Prager notes, “Already, 12 states have passed laws that would ban abortion from the point of conception, in the event Roe is overturned, while two states and the District of Columbia have legally guaranteed the right to abortion until birth.”
2. The Court may vote not to overturn Roe “but in effect pare it back, allowing state limits such as Mississippi’s while letting some constitutional right to abortion.”  As Peggy Noonan observes, the Court would in effect be saying “We cannot end the national abortion argument, but we can manage it.”  This gradualist approach would mean there will be future abortion cases argued before the Court.

Third, why can the Court not declare that all abortions in the US are illegal and unconstitutional?  As Alexandra DeSanctis of the National Review argues, “without a constitutional amendment explicitly recognizing fetal personhood, states will maintain a maze of abortion laws, some of which will continue to allow abortion.”  Here is DeSanctis’s proposed language for an Amendment to forever end abortion in the US:  “The word ‘person’ as used in the Fifth and Fourteenth Articles of Amendment to the Constitution of the United States, applies to all human beings, including unborn human begins from the moment of conception, at every stage of biological development, irrespective of age, health, function, gender, race or dependency.”

Finally, Ross Douthat brilliantly captures the essence of the abortion debate in the US.  It centers on two focal points:  Defining personhood and defining the rights of women.

1. Defining personhood:  At the core of the US legal system is the protection of human beings from lethal violence.  “There is no way to seriously deny that abortion is a form of killing . . . we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell.  Rather, a distinct human organism comes into existence at conception, and every stage of your biological life from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.  We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act [which] in almost every other context is forbidden by law.”  It is therefore axiomatic that the burden of proof rests with the pro-choice movement “to explain why in this case taking another human life is acceptable, indeed a protected right itself.”
2. The rights of women: The pro-choice argument goes something like this: “regardless of the precise moral status of unborn human organisms, they cannot enjoy a legal right to life because that would strip away too many rights from women.”  A world without abortion consigns women to “second-call citizenship—their ambitions limited, their privacy compromised, their bodies conscripted, their claims to full equality a lie.”  Here are the incontrovertible facts:  Pregnancy is unique to women, so justice requires redistributing this burden by holding men legally and financially responsible for all the children that they father and providing stronger financial and special support for motherhood at every stage.  But, a Douthat argues, “Does this kind of justice require legal indifference to the claims of the unborn?  Is it really necessary to found equality for one group of human beings on legal violence toward another, entirely voiceless group?”  Because the irreducible burden of childbearing “cannot be redistributed to fathers, governments or adoptive parents,”  what are the legitimate limits that the state or society can impose on women?  It seems unwise and wrong to prosecute and criminalize women who have abortions.  We who name the name of Christ, must view women in such a situation with compassion, love and mercy.  We must care as much about them as we do the human life in the womb.

Abortion is a “miserably complex issue” in a “brutalized political culture.”  It remains one of the most polarizing issues in 21st century America and will not be resolved this June when the Court hands down its decision.  Christians must lead the way, but the challenge is to consistently maintain a pro-life position across the entire spectrum of life.  Here are a few important insights:

• Kelly Rosati, consultant, foster care advocate, former Focus on the Family vice president:  “We must walk our talk and care about all life, born and unborn. If we are as serious as we say we are about saving the lives of unborn children, we must come to terms with the reasons for women’s abortion decisions. At the top of the list are two glaring ones Christians could help change: an inability to care for dependents and an inability to afford a baby . . . And, in the same way abortion rights supporters have no right deprioritizing the lives of unborn children because every life matters, pro-life supporters also have no right deprioritizing the lives of already-born children because every life matters. When we fail to demonstrate in word and deed that the lives of children in foster care, at the border, or in jeopardy from preventable death in a developing country also matter as much as the lives of unborn children and their moms, we hurt our pro-life credibility, we hurt our Christian witness, and we hurt our cause to save unborn babies.”

• Chelsea Patterson Sobolik, policy director at the Southern Baptist Convention’s Ethics and Religious Liberty Commission:  “Truth and tone must go hand in hand. We should advocate for pro-life policies in a way that communicates both our care for the woman and her unborn little one, not one above the other. In seeking to build trust, we must be mindful of the way in which we discuss pro-life issues.  Pro-life Christians must also take care not to vilify the one in four women who’ve had an abortion. God’s grace extends to every kind of sin and every person who would place their trust in Christ. His cross offers forgiveness of sin. The world is watching and will be able to tell if our public witness reflects or obscures his love.”

• Roland C. Warren, president and CEO of Care Net:  “While many pro-life Christians are excited about the possibility of Roe v. Wade being overturned in the foreseeable future, there is fear in the culture that pro-life people are only interested in a political solution and that the well-being of women and families will be at stake should this political victory come to fruition. Therefore, there is an important question we, as pro-life Christians, must ask ourselves during this pivotal time: Are we prepared for a post-Roe v. Wade society?

See Joshua Prager in the Wall Street Journal (4-5 December 2021); Peggy Noonan in the Wall Street Journal (4-5 December 2021); Alexandra DeSanctis in the New York Times (7 November 2021); Ross Douthat in the New York Times (2 December 2021); David Brooks in the New York Times (3 December 2021); and Kate Shellnutt, “How Can Today’s Pro-Life Christians Build Trust in the Movement?”  www.christianitytoday (24 May 2019).