The recent decision from the Supreme Court in Dobbs v. Jackson Women’s Health Organization reversed 50 years of precedent finding a constitutional right to abortion. On such a contentious topic, there has been no shortage of speculation and misinformation about what this means for abortion access across the country. For example, contrary to some who believed that the overturning of Roe would mean the outlawing of abortion, women are still able to receive abortions depending on which state they live in (though as noted below that will likely change in several states in the following weeks as bans take effect). At the same time, others have speculated that this means an end of all other precedent including access to contraception found in Griswold v. Connecticut or a threat to statutes which found interracial marriage bans unconstitutional such as Loving v. Virginia. However, the Court’s opinion should be understood for what it was and what it was not. There are a number of questions arising out of the decision, but answers to those questions should be rooted in actual facts not speculation or fearmongering. Below are some common questions and answers that have circulated on social media since the ruling.
Which states have outlawed abortion? Which states have protected abortion?
Following the Dobbs decision, the state of abortion access is governed by a patchwork of state laws. At present, there are varying levels of bans in effect. A handful of states (Louisiana, South Dakota, Oklahoma, and Kentucky) had bans in places which went into effect immediately upon the decision by the Court and banned all abortions in the state. Others had laws which will ban abortion once a number of events occur, such as the state attorney general certifies to the governor that Roe was overturned, and a waiting period has occurred. For example, Mississippi, the state which brought the case which overturned Roe has a ban which goes into effect 10 days after Roe was overturned. In Missouri abortion will be banned as soon as the governor, legislature, or attorney general act to certify that Roe is no longer in effect, which both the state attorney general and governor have agreed to do immediately. There is also a final category of states which will severely restrict abortion pending court action. Alabama and Georgia both have total or near total bans which have been enjoined by lower courts. In states such as these, the courts will likely need to clarify whether the old laws are in effect, though state legislatures could act to pass new laws which would not be restricted by the Court’s ruling. Most of the states in these categories are across the South and in the Western section of the country.
At the other end of the spectrum are states which have legal protections for abortion either as amendments to the state constitution, state law, or through state court decisions. However, even in these states, there are not uniform standards for when an abortion can occur. California’s state supreme court has found a right to abortion in the constitution up to the point of viability, state law protects access in New York up to 24 weeks, and Iowa allows abortion up to 20 weeks after fertilization. The states which have protected abortion or recognized a right to abortion.
Finally, there are states where abortion faces an uncertain future because of circumstances such as a divided state government. Michigan’s Democratic governor wants to protect abortion access but the Republican state legislature will likely move to restrict it. Others such as Indiana have no state law or court cases protecting the right to abortion access, though they are legal until 20 weeks and state legislators have petitioned the governor to call them into special session when Roe is overturned. In most of the states in this category, it is likely that abortion access will be limited, though court battles and elections will be necessary to clarify many of the details governing it.
What is the state of federal legislation related to abortion?
Though abortion access is now governed by state laws, there are renewed calls for federal legislation either to prevent or permit abortion. Proponents of the abortion called for the House and Senate to pass the Women’s Health Protection Act. In remarks after the Court’s ruling, President Biden urged legislators to move to protect abortion access through law. However, both supporters and opponents of abortion are unlikely to get federal legislation passed because neither side has the requisite 60 votes to pass legislation in the Senate, a point made by Senate Minority Leader Mitch McConnel (R-KY) in comments after the Court’s ruling.
How are ectopic pregnancies and the protections for the life of the mother governed by the new ruling?
Recent social media posts and media personalities have claimed that the overturning of Roe will mean that women must choose between ending a life threatening pregnancy to the mother or jail time. One of the most common concerns are related to ectopic pregnancies, which result in 1-2% of pregnancies nationwide, where the fertilized egg implants in a place outside of the uterus, usually the the fallopian tube. Ectopic pregnancies are not viable and if they continue to grow represent a threat to the life of the mother. At present, technology does not allow for removal and reimplantation of the pregnancy in the uterus, so treatments include either removal of the pregnancy or in some instances waiting to see if the body will naturally reject the pregnancy. However, in all the states where state abortion trigger laws go into effect, there are provisions for the life of the mother. Though there have been some states which have proposed laws which did not include a protection for the life of the mother such as a bill which garnered attention in Oklahoma, they have been either defeated or revised to include protections for the life of the mother.
Also, it should be noted that philosophically and morally, there are distinctions between treating an ectopic pregnancy and an abortion to end an unwanted pregnancy. Though both are medically classed as an abortion because they involve the removal of an implanted embryo, morally the acts are distinguishable. Christian ethicists have consistently upheld that moral principles such as that of “Doctrine of Double Effect” permit action to save the life of the mother even if an unintended consequence is the ending of the life of the pregnancy. The doctor who performs the procedure is acting not to end the pregnancy but rather to save a life which would be lost, and is therefore not morally culpable. This is not carte blanche blessing to perform abortions in all instances where a woman’s life may be changed or her bodily autonomy infringed upon by a pregnancy, but it is a recognition that in a world broken by sin and sickness there are medically necessary and morally permissible instances where a pregnancy can be ended.
Are mothers being criminalized and in danger of jail time?
In states with pre-Roe laws which are now in effect, mothers are not at risk of criminal proceedings. Prior to Roe, laws focused on criminalizing abortion providers and going after the individuals performing abortions. The state laws recognized that the person who was the immediate cause of the death of the unborn was the abortion provider. Though there have been some laws proposed to treat women who receive an abortion as criminally liable such as a recently proposed bill in Louisiana, they have been rejected or amended by legislators. Anti-abortion advocates and pro-life organizations have recently gone on record as opposing criminalization of women in a letter released in May. The letter was signed by leading pro-life organizations such as National Right to Life, March for Life, United States Council of Catholic Bishops, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention. The letter clearly argued “We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.”
Are other rights threatened by the ruling in Dobbs?
Recent discussions have ventured beyond Roe to other rights which progressives believe are threatened by the Dobbs decision. Some that have received attention include the court cases of Griswold v. Connecticut (right to contraception), Lawrence v. Texas (which struck down sodomy laws), and Obergefell v. Hodges (allowing same sex marriage). The Court’s ruling in Dobbs was primarily focused on abortion access, with several of the justices explicitly stating that the ruling should not be seen as threatening the other cases. Justice Thomas did take aim at “substantive due process” which is the basis for many of the rulings beginning with Griswold and including Roe and Obergefell. However, he was alone in his call for ending this rule of judicial interpretation. Justice Alito, writing the majority opinion, noted that the Court’s ruling “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.’” Additionally, Justice Kavanaugh reiterated this point in his concurrence: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of [Griswold, Eisenstadt, Loving or Obergefell], and does not threaten or cast doubt on those precedents.” Even the justices dissenting from the opinion cast doubt on the fears of some that this would mean a ban on contraception access: “…we suspect the prospects of this Court approving bans on contraception are low.”
While pundits are correct to note that the reasoning used to dismantle Roe could be easily applied to these other cases, particularly Thomas’ point about locating the right to privacy in the 14th Amendment, they ignore the salient difference raised by Alito in his majority opinion that abortion is different from the other decisions because there are multiple individual’s rights at play, not just those of a single individual. Writing in the majority opinion, Alito stated that “The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty.’ Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”
Christians only care about ending abortion, not taking care of children.
The charge that Christians are primarily seeking to impose a theocracy on others about abortion and do not care about children after they are born is one that does not bear up under the weight of scrutiny. First, even if the charge is true that Christians only care about abortion and not after birth—which would be a horrible position—it would not address the claim advanced by pro-life Christians that ending abortion is about ending the murder of the most vulnerable. Though it would absolutely be inconsistent for Christians to say that they care about life before birth and not what happens to the child after birth, it would not logically justify abortion and the claim that it is the unjust ending of an innocent life. To criticize Christians for not doing enough is to draw out what would be an inconsistency, but it does not justify abortion.
However, the charge that Christians do not care for children after birth is without merit and is on its face a ridiculous claim. The front lines of the pro-life movement have not been the halls of Congress or the steps of the Supreme Court, but Pregnancy Resource Centers around the country. These PRCs are staffed, largely by volunteers, who work to provide services and where possible healthcare for women in unplanned pregnancies. In fact, there are more PRCs across the country than there are Planned Parenthood clinics (3000+ vs. 600), proof that Christians have been willing to put resources behind their words that they care about serving the vulnerable. At PRCs, a woman can receive counseling, information about educational assistance, job training, connections to social services in her community, and even health care. Further, research conducted by Barna Research has shown that Christians are more likely than other people groups in the United States to adopt and care for foster children. From organizations such as Samaritans Purse, Compassion International, and WorldVision, Christians support through millions in donations and thousands of hours of volunteering a myriad of nonprofits focused on addressing poverty, adoption, foster care, and family issues.