For nearly five decades, those in the pro-life legal movement have had one goal: to overturn Roe v. Wade. Last week’s decision at the U.S. Supreme Court is a momentous and surreal victory in that long-fought battle. After several turbulent weeks following a leak of an initial draft, the Supreme Court released its opinion in Dobbs v. Jackson Women’s Health Organization, upholding a Mississippi law limiting abortion after 15 weeks.
Abortion ends a human life. For this alone, the Court was right to uphold Mississippi’s law and overturn Roe v. Wade. But there is another reason why the Supreme Court was right to banish Roe to the ash heap of history: it was bad jurisprudence. This is clear for three reasons.
First, the Supreme Court in Roe instituted a so-called “trimester standard” for cases dealing with abortion. That standard was made up out of thin air and unworkable in application. Later, in Planned Parenthood v. Casey in 1992, the Supreme Court changed the test from a trimester framework to a “viability rule,” where abortions must be permitted for any reason until a baby can live outside the womb. Roe v. Wade recognized that states have important and legitimate interests in unborn life from the outset of pregnancy, yet at the same time infamously legalized abortion for any reason, at any point.
In subsequent rulings, the Court continued to acknowledge the sanctity of human life, while insisting that the atrocity of abortion is a fundamental right turning on whether a baby is “viable.” For example, in 2006, the Court held in Gonzales v. Carhart that an unborn child is “a living organism while within the womb, whether or not it is viable outside the womb.” The late Justice Ruth Bader Ginsburg dissented in Gonzales because it “blurs the line” of viability. How are states such as Mississippi supposed to understand the Supreme Court’s directive on viability if the Court’s own jurisprudence is so unclear?
A second problem with the jurisprudence that Roe created is it was based on standards that were not just fabricated but have also been continually in flux over time. Medical technology has come a long way since 1973 (when viability was around 28 weeks), and even 1992 (when viability was 23 to 24 weeks). Thanks to advances in obstetrics and ultrasound technology, we also now know much more information about the child forming in utero. By five to six weeks, an unborn human’s heart begins to beat. By nine weeks, the child’s eyes and teeth have formed. Mississippi and other states should be free to base their laws on the scientific information available instead of having to rely on an outdated and legally baseless Supreme Court decision.
Finally and most fundamentally, standards aside, Roe v. Wade mandated upon all states an abortion-on-demand regime based on a misreading of the federal constitution. There is nothing in the text, history, or tradition of the U.S. Constitution that supports the right to take an innocent life. As Justice Alito wrote in his majority opinion in Dobbs, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” Roe imposed a nationalized fiat that blocked states from protecting human life as they had done since our nation’s founding. Not to mention, the inconsistent viability standard continually frustrated state lawmakers, who had no idea how courts may use the ambiguous standard to evaluate the life-affirming laws they passed.
Thankfully, the Supreme Court has overturned this egregiously flawed decision. But where do we go from here? The end of a federal mandate on abortion means that the issue will return to the states. We will look to state legislation to protect the lives of mothers and unborn children. And some states have already passed laws increasing protections. Other states, unfortunately, have passed laws in the opposite direction.
There are, broadly speaking, four categories of abortion laws: pre-Roe laws, trigger or contingency laws, enjoined laws, and pro-abortion laws. Pre-Roe laws existed prior to the 1973 decision but have remained unenforced (or have been enjoined) due to Roe. Because of last week’s decision, these (mostly pro-life) laws could be enforced once again. Second, some states have passed contingency or “trigger” laws that were created to go into effect should Roe be overturned. And some states passed more modest laws that have been enjoined—these are pro-life laws like heartbeat bills, discrimination-abortion protections, and pain-capable bills that have been ruled unconstitutional by a court because of Roe. These could potentially be brought back into effect by the ruling in Dobbs. Finally, some states have passed pro-abortion laws or attempted to codify Roe v. Wade into state law.
Far from what the media may tell you, last week’s decision did not make abortion illegal. Instead, it returned this critical policy decision to the states. That means we in the pro-life movement still have work to do.
We should celebrate the Dobbs decision with a clear-eyed view of the battle ahead. We are one step closer to protecting mothers and unborn children from the barbarity of abortion—but now, the pro-life project will take place in a different environment, one step closer to what the founders of our great nation intended.