“Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” – SCOTUS ruling 2002
On June 24, 2022, the above words caused both elation and rage among American women. A year later, the patchwork and misleading arguments continue.
There are understandable arguments on both sides of this issue, and I am always looking for civil discourse, even if no minds are changed. I wrote this post shortly after the Dobbs v. Jackson Women’s Health Org. ruling but left it unpublished because emotions were so running so high. I decided to share it now because, one year later, there is still much confusion about what the SCOTUS ruling on the Dobbs case actually states.
I am not a legal scholar, but I have followed the abortion/right-to-life debate, legally and socially, for 30 years, and I have a working understanding of what the Dobbs ruling says. (At the end of this post, I included a link to The 10 key Quotes from the court’s final opinion, and I encourage everyone to read it.) I spoke with our attorney shortly after the ruling to discuss the specifics as well.
If you are confused, frustrated, or irate over the Dobbs ruling, I humbly offer these explanations in lay terms in the hope that we can untangle some inaccurate claims and gain more understanding. Here are 5 significant clarifications:
1. The Dobbs ruling did not take away a constitutional right.
Abortion has never been a constitutional right. Writer Kevin Williamson relates it this way: “The Constitution does not say anything about abortion one way or the other, and it does not contain any provision that could reasonably be interpreted as mandating abortion rights or prohibiting abortion. The Constitution has no more to say about abortion than it does quantum physics. And the Founding Fathers knew where babies come from — if they had wanted to put something in the national charter relating to pregnancy, they could have done so.”
Secondly, Roe v. Wade did not create a constitutional right. Additional constitutional rights (those not stated in the original document) are established only by way of amendments, and there is an arduous and definitive process for that. Roe v Wade did not travel that route. So, the foundational principles to understand here (or learn for the first time) are 1) there is no stated right to abortion in the Constitution, and 2) the outcome of Roe was not a newly established amendment. (Just because Roe v. Wade was accepted for 50 years did not make it constitutional.)
Since the Dobbs ruling, learning that abortion is not and never has been a constitutional right has been an eye-opener for many people. I sympathize with abortion supporters who feel duped or betrayed. To have an understanding and assimilation of a thing and then have it altered without your input or approval is frightening. It’s not helpful that political leaders and journalists across the board keep reporting that SCOTUS has overturned a “constitutional” right. This propagates misrepresentation. It makes me wonder if that is their intent, or if they too are uninformed about this piece of the Constitution.
So, what are we to do with a rising issue that is not mentioned in the Constitution and has not been incorporated into the Constitution by way of the amendment process?
Enter the 10th Amendment, which states that any power or right not specifically listed in the Constitution belongs to the individual states.
Here is the one-sentence 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In the June 2022 Dobbs ruling, SCOTUS concluded that the 1973 Supreme Court (which decided Roe v Wade) did not abide by the Constitution: “The Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” In simpler words, the 1973 Court disregarded states’ rights and authority. Regardless of the issue at hand (be it abortion, cannabis use, or recycling), if an issue is not mentioned in the Constitution, it is up to individual states to decide.
Therefore, the June 24th Dobbs ruling simply course-corrected a decision that was unlawfully decided in 1973. The majority opinion of the current court stated, “It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In essence – the federal government does not have a constitutional right to mandate or prohibit abortion. That’s the Dobbs ruling in a nutshell. Every state will now debate and determine for itself what abortion restrictions/allowances it wants.
Abortion was a state issue prior to Roe v. Wade and it is now again. From a legal standpoint, this is appropriate, and it’s easier to accept if we understand the framework of America’s founding documents. The 2022 ruling adheres to the Constitution; the 1973 ruling did not. The Roe v Wade ruling was a constitutional violation the current justices simply rectified in Dobbs.
2. The Dobbs ruling is not threatening same-sex unions, or birth control, as abortion supporters repeatedly forecast.
In the Dobbs ruling, this was addressed specifically: “We have stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.'” In other words, abortion is a life/death issue. Gay marriage and birth control are not. This court was addressing solely a life/death issue.
3. The distressing claims that thousands of women will now be harmed and die from having to revert to unsafe, back-street abortions again are unwarranted.
First, this disquietude is based on the persistent tale that thousands of women died from back-street or self-induced abortions prior to Roe v Wade. This is untrue and has since repeatedly been proven to be untrue. (This seems to be a related matter about which the public is also uninformed.)
Dr. Bernard Nathanson, a co-founder of NARAL (who later reversed his position on abortion) said this: “How many deaths were we talking about when abortion was illegal? In NARAL we generally emphasized the drama of the individual case, not the mass statistics, but when we spoke of the latter, it was always 5,000 to 10,000 a year. I confess that I knew the figures were totally false. But in the “morality” of our revolution, it was a useful figure, so why go out of our way to correct it with honest statistics? The official figures of maternal death due to illegal abortion before abortion was legalized was 160.” In another interview, he admitted, “We fed the public a line of deceit, dishonesty, a fabrication of statistics and figures.”
Therefore, it’s dishonest to perpetuate the narrative that women now seeking abortions are going to be forced into mythical, unsafe backrooms. (Due to medical abortion/pills available today, the termination of a pregnancy can be facilitated at home.)
4. The Dobbs decision did not ban abortion.
The June 2022 ruling simply returned the issue to the States. Abortion will remain available in the majority of states because at this point in time 8 in 10 Americans believe abortion should be legal to some degree (May 2022 Gallup poll.)
Misinformation about and misunderstanding of this ruling are two reasons I believe abortion supporters are so upset. That’s why we must keep talking.
5. A degree of anger from abortion supporters stems from realizing there is now an opening for pro-life voters to have some influence.
Under Roe, pro-life voters carried no weight at the ballot box. Abortion had to be available in every state, and pro-life voters had no choice but to accept that. What the Dobbs ruling says is that now, all votes carry equal weight. Abortion supporters and pro-lifers can now equally battle it out at local and state levels. Not everyone will like that, but it’s constitutional.
In reality, here’s what is likely to occur:
1. Some states will alter current abortion restrictions. They are now free to choose a marker after which abortions will not be allowed. Common options: 12 weeks, 15 weeks, 24 weeks, or once a heartbeat is detected.
2. Other states will have no restrictions on abortion throughout the entire pregnancy. Leaders in New York and California have announced this will be their position.
3. Other states might attempt to fully ban abortions. As of this writing, about a dozen states have done this. However, many of these decisions are being challenged at the state Court level, so the debate continues.
We may not like what each state decides but all voters now have a voice in their state. This is how a republic works, a state in which supreme power is held by the people and their elected representatives.
Because I have followed this issue for decades, I was not thrown by the Dobbs ruling last June. The eye-opener for me was how many Americans are uninformed about our Constitution and the legislative process. I attribute this to the fact that most of us tuned out in our high school U.S. Government class. And unless we were Poli Sci majors in college, we probably never thought about the Constitution again. In general, this has not been a good thing.
It’s to our benefit to pay attention to politics, especially at the local level. Local leaders advance to positions of more influence and power. Folks who claim to be apolitical or uninterested in politics are not helping change the atmosphere. Unengaged individuals, many of whom don’t vote, are often the ones who then complain when laws they don’t like are enacted. The Dobbs ruling should be a wake-up call for all of us.