Can the Supreme Court Abolish Abortion?
History of Abortion and Roe v. Wade 1973 Decision
Roe v. Wade was a landmark legal decision issued on January 22, 1973, in which the U.S. Supreme Court struck down a Texas statute banning abortion, effectively legalizing the procedure across the United States. The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.
Is Roe v. Wade Constitutional?
Top 10 Reasons Why It Is Not
1. The Court’s decision in Roe v. Wade exceeded its constitutional authority:
Under the legal system established by the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. It is not the role of the Supreme Court to substitute the policy preferences of its members for those expressed in laws enacted by the people’s elected representatives. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right.
2. The Court misrepresents the history of abortion practice and attitudes toward abortion.
The apparent purpose of the Roe opinion’s long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly Victorian 19th century. One example is adequate to show how distorted is Justice Harry Blackmun’s rendition of history. He must overcome a huge hurdle in the person of Hippocrates, the “Father of Medicine,” and his famous Oath which has guided medical ethics for over 2,000 years. The Oath provides in part: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” This enduring standard was followed until the Roe era and is reflected in Declarations of the World Medical Association through 1968: “I will maintain the utmost respect for human life, from the time of conception. …” But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged!
3. The majority opinion in Roe wrongly characterizes the common law of England regarding the status of abortion.
The Court’s strained analysis and conclusion – “it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus” – are rejected by many legal scholars.
William Blackstone’s Commentaries on the Laws of England (1765-1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be “quickening” rather than conception …
4. The Court distorts the purpose and legal weight of state criminal abortion statutes.
In the 19th century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother’s life. The primary reason for stricter abortion laws, according to their legislative history, was to afford greater protection to unborn children. This reflected a heightened appreciation of prenatal life based on new medical knowledge. It is significant that the medical profession spearheaded efforts to afford greater protection to unborn lives than had been recognized under the common law’s archaic “quickening” distinction.
The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court’s claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother’s life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely.
5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution.
Roe v. Wade locates a pregnant woman’s “constitutional” right of privacy to decide whether or not to abort her child either “in the Fourteenth Amendment’s concept of personal liberty …, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people.”
The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution.
Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights which concern an aspect of privacy, for example, the Fourth Amendment’s “right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures.” However, the Court fails to connect these to the newly found “right” to abortion, because no logical connection exists.
A “privacy right” large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face, not from pregnancy, but from raising children …
6. Although it reads the 14th Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of “persons” to exclude unborn children.
Much is made of the fact that “person” as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are “persons” within the meaning of the 14th Amendment and they are not counted in the census, nor can a corporation grow up to be president.
The Roe Court also ignored the clear and uncontested biological evidence before them that individual human lives begin at conception: “We need not resolve the difficult question of when life begins.” This is question determined by science, not philosophers or theologians or politicians. But while seeming to sidestep the question, the Court in fact resolved the question at birth, by allowing abortion to be legal throughout pregnancy. In the same vein, the Court refers to the unborn child as only a “potential life” (indeed, an actual life) from the moment of his or her conception.
7. The Roe Court assumed the role of a legislature in establishing the trimester framework.
Roe holds that in the first trimester of pregnancy, the mother’s “privacy interest” in an abortion trumps state regulation. From the end of the first trimester to the child’s “viability” – which the Court presumed to be no earlier than 26 weeks – the state can regulate abortion practice only in ways reasonably related to advancing the mother’s health. In the final trimester, the state – in the interest of protecting the “potential life” of the child – can regulate and even proscribe abortion, except where necessary to preserve the mother’s “life or health.” Health (see point 8 below) is the exception that swallows the rule.
Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted it was arbitrary.14 A reply memorandum from Justice Potter Stewart stated:
8. What Roe gives, Doe takes away.
Many Americans believe that abortion is legal only in the first trimester (or first and second trimester). Many pollsters and media outlets continue to characterize Roe v. Wade as the case which “legalized abortions in the first three months after conception.”17 In a recent television appearance, NOW’s former president Patricia Ireland falsely claimed that “thirty-six states outlaw abortion in the third trimester.”
As noted above, under Roe state laws banning late-term abortions must contain a “health” exception. Health is defined in Roe’s companion case, Doe v. Bolton, as including “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health.” This definition negates the state’s interest in protecting the child, and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.
9. The Court describes the right to abortion as “fundamental.”
The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered “deeply rooted in the history and traditions” of the American people or “implicit in the concept of ordered liberty,” such as the free exercise of religion, the right to marry, the right to a fair trial and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous “strict scrutiny” standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the 14th Amendment, along with privacy rights like contraceptive use. It’s ludicrous to claim abortion is deeply rooted in American history or traditions or that our governmental system of “ordered liberty” implicitly demands the rights to destroy one’s child, but it was an effective way to foreclose state regulations of abortion. The strict scrutiny test was later abandoned in Casey.
10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation.
Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion).
Results of Roe v. Wade
LifeNews.com, a pro-life website, was among the few outlets to report on the 2019 abortion numbers, which show 42.3 million preborn babies killed worldwide. Worldometers recorded 58.6 million deaths last year from violence, illness and natural causes. Abortion statistics are recorded separately from mortality numbers.
By comparison, 8.2 million from cancer; 5 million from smoking-related illnesses, and 1.7 million to HIV/AIDS. The numbers also record deaths from malaria, alcohol, medical errors, injuries by accident and other factors.
Abortion rates compiled by the federal Centers for Disease Control, state governments and organizations such as Planned Parenthood show around 1 million abortions annually in the United States, with Planned Parenthood accounting for more than 345,000 of them in the 2019 reporting year.
The world’s largest abortion provider receives around $500,000 in Medicaid funding each year from the federal government and some states.
An estimated 61 million preborn babies have been killed through legal abortion in the U.S. since the 1973 Roe v. Wade Supreme Court decision make abortion legal nationally.
If new conservative Justice confirmed, what then?
President Trump has made no secret of his intentions regarding the U.S. Supreme Court and abortion rights. During a presidential debate in 2016, Trump vowed to appoint justices who’d vote to overturn the 1973 Roe v. Wade decision that legalized abortion nationwide.
“That will happen automatically, in my opinion, because I am putting pro-life justices on the court,” Trump said. “I will say this: It will go back to the states, and the states will then make a determination.”
During her Senate confirmation hearings for her seat on the 7th U.S. Circuit Court of Appeals in 2017, Amy Coney Barrett — who has spoken openly about her Catholic faith — was asked about her personal views on Roe v. Wade. She gave a version of what’s become a standard answer to that question for people in her position, saying, “All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases.”
While a majority of Americans favor some limitations on abortion, most also support Roe v. Wade. If Barrett is confirmed and the court indeed overturns that precedent, the issue would be left to the states – setting up intense fights in legislatures, and legal observers said, leading to an even more patchwork system, where abortion rights hinge almost entirely on where a person lives.
What about “Precedence” in Challenging Roe v. Wade?
Contrary to popular opinion, decisions of the U.S. Supreme Court are “often” reversed. Stare decisis (let the decision stand) does not prevent reversal when the constitutional interpretation of a prior ruling is later understood to be flawed. Justice Rehnquist’s dissent in Casey notes that the Court “has overruled in whole or part 34 of its previous constitutional decisions” in the past 21 years. It the Court’s duty to reverse wrongly decided rulings. “Justices take an oath to uphold the Constitution — not the glosses of their predecessors.”
That word was “precedent.” And lurking between the lines was another word, mentioned just twice and only in footnotes: abortion.
Since 1973, the constitutional right to abortion has hinged on the high court’s decision in Roe v. Wade, later modified but upheld in 1992. Before he was confirmed to the court in 2018 by the narrowest of margins, Associate Justice Brett Kavanaugh referred to those rulings as “precedent on precedent.”
But in striking down a Louisiana prisoner’s conviction and subsequent sentence of life without parole, the Supreme Court jettisoned yet another of its own precedents, established a year before Roe and a generation before 1992’s Planned Parenthood v. Casey. Six justices agreed with the reversal.
For SCOTUS-watchers, it was but the latest indication that a more conservative court, focused first and foremost on the words written in the Constitution, is increasingly willing to reverse the work of its predecessors. And no issue hangs in the balance more than abortion.
Kavanaugh: “Some of the court’s most notable and consequential decisions have entailed overruling precedent,” he wrote. Among them: landmark rulings on school segregation, same-sex marriage, campaign spending, defendants’ rights – and abortion.
Even now, Kavanaugh argued, the court lacks “any consistent methodology or road map” for when to overrule precedent, which in turn “poses a problem for the rule of law and for this court.”
If overturned, what then? Is abortion abolished?
Reversing the landmark case would not automatically make abortion illegal across the country. Instead, it would return the decision about abortion legality to the states, where a patchwork of laws already in place render abortion more or less available, largely depending on individual states’ political leanings.
“We think there are 22 states likely to ban abortion without Roe” because of a combination of factors including existing laws and regulations on the books and the positions of the governors and state legislatures, says Amy Myrick, staff attorney at the Center for Reproductive Rights, which represents abortion-rights advocates in court.
How do we prepare for potential court decision to reverse Roe v. Wade?
Abortion will not be gone with a reversal of Roe v. Wade. According to the article from 2018 above, 22 states will likely ban it. That leaves 28 states where it is still allowed; however, there are many things the church should be doing to strengthen the likelihood women will choose life:
- Church should be preaching and teaching the evil of abortion
- Church should have active programs in place to welcome and disciple vulnerable women
- Pregnancy Resource Centers should be supported and expanded to every community
- The church should be pursuing the Lovelife model of the four key areas to reach people likely to abort
Does Bible give guidance in trusting men’s laws vs. God’s laws?
Psalm 118:8, KJV It is better to trust in the LORD than to put confidence in man.
Psalm 108:12, KJV Give us help from trouble: for vain is the help of man.
Micah 7:5, ESV Put no trust in a neighbor; have no confidence in a friend; guard the doors of your mouth from her who lies in your arms;
Proverbs 28:26, ESV Those who trust in themselves are fools, but those who walk in wisdom are kept safe.
Micah 7:7-8, ESV But as for me, I will look to the Lord; I will wait for the God of my salvation; my God will hear me. Rejoice not over me, O my enemy; when I fall, I shall rise; when I sit in darkness, the Lord will be a light to me.
Isaiah 2:22, NIV Stop trusting in mere humans, who have but a breath in their nostrils. Why hold them in esteem?
Deuteronomy 31:6, NASB Be strong and courageous, do not be afraid or tremble at them, for the LORD your God is the one who goes with you. He will not fail you or forsake you.
Hebrews 13:5b, NLT For God has said, “I will never fail you. I will never abandon you.”
Psalm 27:10, NLT Even if my father and mother abandon me, the LORD will hold me close.
Proverbs 3:5-6, ESV Trust in the LORD with all your heart, and do not lean on your own understanding. In all your ways acknowledge him, and he will make straight your paths.
When Will Abortion End?
When the hearts of humankind are uniformly turned to God. In other words, never here on Earth until the New Earth is our home.
One day soon, God will finally conquer all of our sins. Sin’s downfall has been brewing since Genesis 3, when God promised to cleanse his earth of Satan’s poison (Genesis 3:15). Calvary assures us that God is keeping his promise. The serpent’s skull is broken and bleeding out. His time is short (Revelation 12:12).
Meanwhile, creation aches, God’s children groan, and angels stand on tiptoe — all waiting for the Conqueror to come again and give us final freedom.
And suddenly, he will. It will happen “in a moment, in the twinkling of an eye” (1 Corinthians 15:52). The trumpet will sound, the sky will tear open, and the Lord Jesus will deliver “the kingdom to God the Father after destroying every rule and every authority and power” (1 Corinthians 15:24). Jesus will destroy every rule, every authority, and every power that exalts itself against God — including every sin that still leeches onto your soul.