What Are the Options?
Nearly every year since the Roe decision in 1973, an abortion case has come before the Supreme Court. As Mississippi Solicitor General Scott Stewart began the oral arguments for Dobbs v. Jackson in December, “Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.” Since its decision in 1973, the Court has become and has been viewed as more of a political arm than a neutral arbitrator. The Court has been embroiled in one of the most morally and politically polarizing issues in America—abortion.
The question the Court is answering is whether all pre-viability abortion bans are unconstitutional. There seem to be a few plausible ways the Court could answer this question.
- The Court could uphold Roe and Casey, subsequently striking down the Mississippi law as unconstitutional. In so doing, the Court would affirm that abortion is a constitutional right. This would mean that the viability-line and “undue burden” test remain as the standards that govern when and how states may regulate abortion.
- In a compromise, the Court could “limit” Casey by doing away with the viability line and, therefore, uphold the Mississippi law. Chief Justice Roberts seems most interested in this option. During the oral arguments, he said that abandoning the viability line would not affect the central holding of Roe because “as far as viability goes, I don’t know what that has to do with the question of choice at all.” He also noted that Mississippi’s 15-week ban is not radical and that many other countries have similar standards. (In fact, it is interesting to note that the United States is one of the seven most lenient countries on abortion, in the company of countries like China and North Korea.) So, Chief Justice Roberts is leaning toward maintaining Roe—and therefore, the Constitutional right to abortion—while abandoning the arbitrary viability line. States would then have more freedom to regulate abortions. However, this outcome would only land more abortion cases in the Supreme Court’s lap. It would not resolve the issue of the unworkable standards set by Roe and Casey.
This case leaves little room for compromise. Either the Court should affirm Roe and Casey and strike down the Mississippi law, or it should overturn them both and uphold the Mississippi law. After all, the Mississippi law directly flouts the stipulations of Roe and Casey. As for overruling either Roe or Casey or “limiting” one of them, this is difficult to do because the two are interdependent. Casey’s “undue burden” is defined using Roe’s viability line. It would seem that in Dobbs v. Jackson, the clearest path forward is an “all or nothing” decision. This brings us to a third way the Court could answer Mississippi’s question . . .
- The Court could uphold the Mississippi law by overturning Roe and Casey. In contrast with some of the language being pushed by the pro-abortion side, overturning Roe and Casey would not illegalize abortion. Rather, it would leave the responsibility of weighing the “right” of women to abort against the right of unborn children to live with the people of the several states. As it was before Roe, the issue of abortion would once again be left to state legislatures. As the state of Mississippi argued in December, “The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment from just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.” This option would return the Court to its neutral position on abortion. It would be a win for life and liberty.
This Court is perhaps the most Conservative we’ve had in a long time. As the chief justice, Justice Roberts is concerned with protecting the Court’s image. Therefore, Justice Roberts seems to be leaning toward the more “moderate” decision of abandoning the viability-line standard in Roe without overturning Roe and Casey. While it is difficult to predict what the five more Conservative justices will decide, we can speculate. Justice Clarence Thomas seems to be the most staunchly set on overturning Roe, having called abortion precedent in the past “grievously wrong.” As pro-life Christians, we must pray for the other four Conservative-leaning justices—Justice Samuel Alito, Justice Amy Coney Barrett, Justice Neil Gorsuch, and Justice Brett Kavanaugh—to take full advantage of this chance to overturn Roe and Casey. As we have seen from the previous two articles, the Mississippi law has science, morality, and legality on its side. In contrast, Roe and Casey have completely disregarded science (especially as it has developed since 1973!), morality, and the actual meaning and interpretation of the U.S. Constitution. Let’s pray that these Conservative-leaning justices will see that fact and decide accordingly!
If Roe and Casey are overturned, the pro-life work will be far from finished. Currently, 21 states have laws (either unenforced pre-Roe bans, post-Roe “trigger” bans, or post-Roe restrictions that are currently blocked by courts) that would automatically either ban or restrict abortion further. In contrast, 15 states would continue to protect abortion. Of those states, three (and D.C.) protect abortion throughout pregnancy and twelve of them protect pre-viability abortions. A world without Roe would not be a world without abortion. Rather, the attention of pro-life Christians would simply be shifted to the state and local levels more narrowly. As Christians who are called to love like Christ, we must be equipped to create a culture of life, no matter the outcome in this case. In our next article, we will look at how Christians can be ready to help women and babies in their communities.