NOTE: The content below expresses the views of the individual named as the author and does not necessarily reflect the position of the WRF as a whole.
Abortion in the United States after June 24, 2022
Christians worldwide may be hearing confusing news about abortion in the United States after the US Supreme Court decision on June 24, 2022, Dobbs v. Jackson Women’s Health.[1] As a civil rights attorney and previous adoption lawyer, I can summarize this consequential ruling. Then I will suggest some ways forward for Christians, both in the U.S. and elsewhere.
Before 1973, most people in the U.S. assumed that the legal status of abortion was a matter for the country’s fifty states, because the U.S. Constitution leaves issues concerning family relationships, most criminal laws, health, and morality regulations to those states. But then the U.S. Supreme Court, in Roe v. Wade, struck down a state law that banned most abortions, saying that there was a privacy right to abortion implied in various parts of the national (federal) Constitution. The Court said that the mother had the primary right to choose abortion in her first trimester, and that as the baby approached viability, the state’s interest in having children be born weighed heavier in the balance, till at nine months the choice to abort could only be exercised in extreme cases.
In 1992, the Court modified that opinion in Planned Parenthood v. Casey, holding that abortion was still a woman’s right, but that the legal test in evaluating state laws would be whether the law was an “undue burden” on the woman’s right. That was a vague test and spawned many more lawsuits, causing the Supreme (federal) Court to have to grapple with numerous restrictions that streamed in from states around the country.
In June of 2022, the Court reversed those two cases with its ruling in Dobbs v. Jackson Women’s Health. The new decision held that Roe and Casey had set out from a false premise: that the Supreme Court could decide about abortion. Instead, the majority (6-3) said, this question is one for the fifty states.
Justice Alito, writing for the majority, said nothing about the value of the unborn or the evil of discarding an innocent life. The opinion only speaks of the importance of giving this momentous issue to the democratic process because it is a healthcare decision reserved to the fifty states under the U.S. Constitution, a document that is silent on abortion.
The justices said that if any claimed right is not mentioned by name in the Constitution, it must be ‘deeply rooted in American history and tradition’. The Court reasoned that since Roe and Casey’s ‘right’ to abortion had no such grounding, the right to abort will have to be found in state laws.
For the first time, women (and men) can vote on abortion without being second-guessed by the unelected justices in Washington, D.C.; there is no federal Constitutional right to abortion. Dobbs is a somewhat Solomonic decision, foregoing the power to decide and giving it to the people. And just like Solomon’s ruling, it carries with it a danger of death, injustice, and misinterpretation.
While pro-life people rejoice that the Supreme Court will not be the arbiter of whether babies can live or die, American Christians now face fifty different forums in which to debate. Abortion will now be a question decided by voters. While the Supreme Court commendably relinquished its power to decide, it also missed an opportunity for influence, as it wrote the decision with scrupulously neutral language. And it opened the door to allowing some states to pass laws even more ghastly than were allowed under Supreme Court precedent. Moreover, since as many as 60% of all abortions in the U.S. are not surgical but performed by drugs sent through the mail, it still remains for Christians to reach pregnant women with offers of help, understanding, and affirmation of the value of the life in their womb.
Still unknown are the reactions from the executive branch of American government, which leads the military (Will abortions be allowed on military bases in states that prohibit it? Will the President’s State Department advocate for abortion overseas? Will the U.S. Postal Service mail abortifacient pills into states that outlaw them?) and the legislative branch (Will Congress fund travel for abortion out of states that forbid it? Will they try to enact laws that protect those who engage in the procedure? Will they fund abortions overseas?)
Two things must be noted about the dissent in the Dobbs case. First, while that opinion from three justices features much useful information and passionate advocacy, there is much that is unfair. It exaggerates the effect and distorts the motives of the justices who wrote the majority and concurring opinions, and it refuses in all of its 66 pages to ever acknowledge the interest of a state or nation in having babies be born alive.[2] Without further referencing the slang terms it uses, suffice to say that civil rights law is all about balancing competing, worthy interests; intemperate language and ignoring of one side of the debate is exhausting, divisive, and unhelpful.
We are left to find another way, and this way must always be the way of love. The voiceless party in the litigation, the unborn child, is still vulnerable in the U.S. and elsewhere to the whims of mothers, families who pressure them, cultures who promote sexual irresponsibility (45% of the pregnancies in the U.S are unplanned[3]), and politicians who fail to provide for needy mothers and children. Our view is that however small, inconvenient, quiet, and helpless a baby is, he or she is made in the image of God and is precious. As Thomas K. Johnson has pointed out, the Judeo-Christian view of human dignity is ‘personalist’: that our worth is a gift from God, not ‘functionalist’, that is, based on worth that comes from our self-awareness, or capacity to act or confer material benefits on society.[4]
Communicating this key concept of ‘personalist’ worth and the hope for women who are facing unwanted pregnancies is a matter of education and persuasion. Just as most of our cultures have evolved from shunning children born outside wedlock, or allowing smoking in public places, or permitting the beating of animals that don’t obey, the conscience of a vocal group can reshape a wrong-headed majority and change laws, culture, and school curriculum. Avoiding unplanned pregnancy, cultivating devoted fathers, and promoting adoption are emphases our churches should embrace.
This education process will not be easy. A recent study of American women’s views on adoption revealed the following numbers:
[Their] primary sources of information include: family (41%), medical professionals (34%) and friends/peers (25%), followed by counselors/psychologists (20%), no one (20%), and Planned Parenthood (17%). Church and religious leaders ranked seventh on the list at only 12%.
As for how much weight different influences carry in their decision-making on whether to raise, adopt, or abort their child, religious beliefs and convictions were the fifth-most important factor among all women surveyed (15%) and somewhat surprisingly, third among self-identified Christians.[5]
Evangelicals must become trusted, relevant voices in the global abortion discussion. We are at our best when we take two steps:
- Touch the conscience with Scripture to foster a culture that appreciates the birth of babies. My chapter on the Sixth Commandment in The Decalogue Project details many useful passages, but one of them poignantly celebrates that God ‘did not kill me before I came from the womb, making my pregnant mother’s womb my grave forever.’[6] Verses like this and Psalm 139:13-16 that are written in first person are especially effective in warming cold hearts.
- Serve women facing an unwanted pregnancy. Meet practical needs and advocate for governments to protect innocent life.
Each step is important as we walk forward from the historic Dobbs decision.
Psalm 139: 13-16 (NET)
Certainly, you made my mind and heart;
you wove me together in my mother’s womb.
I will give you thanks because your deeds are awesome and amazing.
You knew me thoroughly;
my bones were not hidden from you, when I was made in secret
and sewed together in the depths of the earth.
Your eyes saw me when I was inside the womb.
All the days ordained for me were recorded in your scroll
before one of them came into existence.
______________________________
[1] 597 U.S. ___ (2022). https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
[2] Dobbs, 38 Noted with concern in Alito opinion (Page numbers start over with every different justice who writes). Exaggeration abounds: See [emphasis ours] p. 2 Dissent, The majority opinion ‘says that from the very moment of fertilization, a woman has no rights to speak of,’ portraying ‘a government controlling all private choices’ (p. 7), ‘depriv[ing] a woman of all choice’ (p. 24), ‘overriding all rights of the pregnant woman’ (p. 8), that ‘no factual developments have undermined Roe and Casey (p. 38), and that ‘to the majority “balance “is a dirty word, as moderation is a foreign concept’ (p. 12), the ‘Court has wrenched this choice from women and given it to the States’ (p. 52), and ‘The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them’ ( p. 33).
[3] Dobbs dissent. P. 49.
[4] Thomas K. Johnson, ‘Is Human Dignity Earned or Is Human Dignity a Gift?’ World of Theology, 2021, 34.
https://www.academia.edu/45429707/Is_Human_Dignity_Earned_or_Is_Human_Dignity_a_Gift .
[5] George Barna, ‘Adoption and Its Competitors’ (Arizona Christian University: Opt Institute) 2022.
[6] Jeremiah 20:17, New English Translation.
Leah Farish, J.D., a civil rights attorney based in Tulsa, Oklahoma, is host of the Conversation Balloons podcast, which is available on Spotify, Amazon Music, Google Podcasts, Apple Podcasts, and other platforms. She has published books and articles and taught in area colleges in the field of U.S. Constitutional Law for more than 25 years. She also works on humanitarian projects in the Middle East and in North Africa. She is a member of a Presbyterian Church in America (PCA) congregation in Tulsa. Website: https://leahfarish.com/.