I attended an event in Washington, D.C. on December 1, 2021, the day of the oral argument in the Dobbs case. At that event, Mississippi Attorney General Lynn Fitch explained her decision to directly challenge Roe v. Wade and shared her thoughts on the oral arguments with a crowd of several hundred pro-life advocates. The atmosphere in the room was electric and hopeful as it appeared (for the first time since the 1990s) that Roe might be overturned. Today, that hope became reality. Today is truly an historic day for the pro-life movement, the church’s public witness, and American jurisprudence.
I encourage you to read the full opinion in Dobbs here so you can note for yourself the strong tone and sweeping language of the opinion as it relates to the role of the Supreme Court and the sanctity of life. But I recognize that it is a long (213 pages) and dense legal document, so I wanted to point out three key takeaways from this historic decision:
#1 An Historic Win for the Sanctity of Life
The headline “Roe v. Wade has been overturned” still seems surreal. But Dobbs does exactly that by stating: “We therefore hold that the Constitution does not confer a
right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” Though the decision is technically a 6-3 decision in favor of the Mississippi law in question in the case, Alito wrote the opinion and was joined by Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Roberts wrote a concurrence upholding the Mississippi law but leaving “for another day” the constitutionality of Roe and Planned Parenthood v. Casey. Breyer, Sotomayor, and Kagan dissented. By the way, this final opinion is very similar to the draft opinion leaked previously.
Because Justice Alito’s opinion is so strongly worded and because pro-life advocates have long made the arguments that he memorialized in this opinion, I wanted to emphasize a few key paragraphs:
Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” Roe, 410 U. S., at 222 (White, J., dissenting), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.
We end this opinion where we began. 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.
Because (as the Supreme Court found today) there is no constitutional right to abortion, state laws restricting abortion will be subject to rational basis review, the lowest and most deferential standard of review. Justice Alito explained the legitimate reasons a state legislature might regulate abortion, as follows:
These legitimate interests include respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 157–158; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. See id., at 156–157; Roe, 410 U. S., at 150; cf. Glucksberg, 521 U. S., at 728–731 (identifying similar interests).
If you would like to know more about what is coming next in the way of litigation and legislation, consider this recent post explaining those potential and now likely developments.
#2 A Key Reminder about Ordered Liberty
If you have followed our work for long, you know that we often describe the cultural conflict in this country as (at its root) the conflict between two views of freedom. The first is an ordered liberty based on English common law and sourced from Judeo-Christian and moderate enlightenment ideas. And the second is an open license to live lives and create a world according to our own preferences and desires with an emphasis on individual autonomy. Justice Alito addresses this idea substantively in Dobbs, and I wanted to bring this to your attention. Alito stated:
Roe termed this [the right to an abortion] a right to privacy, 410 U. S., at 154, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” 505 U. S., at 851. Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history.
This is an important reminder about American citizenship and jurisprudence. Our political order is founded on the premise of ordered liberty, not open license. And we should strengthen and support that ordered liberty in the future. That said, Alito specifically limited the Dobbs ruling to the issue of abortion and noted that it does not apply to other unenumerated (not specifically set out in the text of the Constitution) Due Process Rights developed in cases such as Obergefell v. Hodges (the same-sex marriage case).
#3 A Victory for and a Call to Christian Citizenship
Since childhood, I have heard Christians lament Roe v. Wade and the rising number of aborted babies in the United States. And many Christians have dedicated their entire public ministry to overturning Roe v. Wade and supporting the sanctity of life. Today, the patience, dedication, and strategy of a movement of Christians across an almost 50-year period have been vindicated in a clear repudiation of the legal and philosophical doctrines that led to Roe v. Wade. This will, I hope, go down in history alongside William Wilberforce’s and the abolitionist movement’s approximately 44-year struggle to end the slave trade in the British empire (1789-1833) as an example of tireless, strategic, and ultimately successful Christian citizenship. This is a moment for celebration as American law (at least at the federal level) no longer sanctions the taking of unborn lives; a moment for repentance as it required 50 years to reach this result; and a moment of profound gratitude and praise to God as He has guided and blessed the efforts of the pro-life movement.
But this is also a call to the church, as a movement of believers, to faithfully engage the public square. Dobbs means that citizenship in our participatory democratic republic still matters–that we can promote and actually realize results in the public square that reflect and protect Biblical principles. Christians, though it may take decades of hard, patient work, we can still make a difference in public life. This is especially true now as the abortion debate shifts to the states and specifically the legislative process; and Christians will have key opportunities in the coming months and years to impact the availability of abortion in their state, weigh in on the regulation of chemical abortion pills, and serve both mothers and children in their communities. Also, Dobbs shows that the future of America is not settled. I still pray for a United States where the church is revived, where the sanctity of life is respected in the public square, and where the American experiment in ordered liberty is renewed for the next generation. Though current cultural trends are deeply concerning, the Dobbs case gives me hope that our efforts can sand will influence the American future.
So, Dobbs is both a victory for and a call to Christian citizenship. The work of promoting a culture of life and serving vulnerable families is just beginning. But, on this historic day, I add my thanks to God and to those who have tirelessly advocated at the Supreme Court and in their own zip code for the protection of the unborn.