David Closson is Director of the Center for Biblical Worldview at Family Research Council. This article appeared in Christ Over All on January 2, 2023.
January 2023 marks 50 years since the U.S. Supreme Court ruled in Roe v. Wade that a “right” to abortion was protected by an implied “right to privacy” in the U.S. Constitution. As they have since 1973, hundreds of thousands of pro-life supporters will mark the anniversary of the Court’s decision by participating in the annual March for Life on January 20 in Washington, D.C. Of course, this year will be different, as marchers celebrate the overturning of Roe and the myriad of new pro-life laws now in effect throughout the country.
As pro-lifers celebrate the reversal of Roe and its companion case Planned Parenthood v. Casey (1992), it is appropriate to consider how we arrived at this moment, reflect on the current state of the pro-life movement in the United States, and acknowledge the remaining challenges facing those of us who care about life.
The Court’s Decision
On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, stating in clear, unmistakable language: “We hold that Roe and Casey must be overruled.” These words, written by Justice Samuel Alito, represent the culmination of nearly a half-century’s worth of prayer, lobbying, campaigning, and legislating.
For many observers, the scope of the Dobbs decision was surprising. Instead of simply upholding Mississippi’s 15-week protection law, the Court agreed with Mississippi’s Solicitor General that abortion precedents, including Roe and Casey, should be overruled to allow the people’s elected representatives to write laws protecting life.
According to Justice Alito, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Alito’s opinion was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts filed a concurring opinion in support of the Mississippi 15-week protection law but did not sign on to Alito’s opinion to overturn Roe. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented, arguing that overturning Roe stripped women of constitutional protections and ignored the Court’s long-standing precedent.
In a concurring opinion, Justice Thomas praised the Supreme Court for rejecting the “fabrication of a constitutional right to abortion.” Justice Kavanaugh noted in his own concurrence that the U.S. Constitution says nothing about abortion and that the Court “does not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.” According to Justices Thomas and Kavanaugh, the Court erred in Roe by taking sides in the abortion debate and taking the issue away from the American people.
Current Lay of the Land
The implications of the Dobbs decision are far-reaching. For the first time since 1973, states across America can defend unborn babies both from the time their hearts can beat and when they can respond to touch; states can even protect unborn babies entirely from the moment of fertilization.
As of December 2022, eighteen states protect life at conception (with some allowing exceptions for rape, incest, fetal anomaly, or the life of the mother), four states protect unborn life when a heartbeat is detected (generally between five to six weeks gestation), and seven states protect unborn life based on gestational age.
Currently, twenty-one states do not protect unborn life and allow legal abortion throughout pregnancy. Although some of these states have codified pro-abortion laws, other states allow abortion up to the moment of birth through “health exceptions,” provisions in laws that define health so broadly as to effectively allow abortions throughout pregnancy for any reason, including the “mental or emotional health” of the mother.
Prior to the Dobbs decision, more than twenty states had passed laws to protect life from the earliest stages of development that they could not enforce. Now that Roe has been overturned, those laws can go into effect.
Significantly, the majority in Dobbs was clear that their decision does not make abortion illegal. Instead, it returns the issue to the people and empowers them to make their own laws through their elected representatives. For the pro-life movement, this means the battle is not over, and it will not be until the day when every unborn child in America is awarded full protection under the law.
Overview of Dobbs
The Dobbs decision was the culmination of a decades-long movement to chip away at Roe. In the immediate background of Roe’s demise is the conservative legal movement that spent decades training, advocating for, and appointing judges with an originalist judicial philosophy. The appointment of three justices during the Trump administration (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) proved decisive in tipping the balance of power at the Supreme Court toward a conservative majority.
1. Originalism is a theory of constitutional interpretation that believes the words of the Constitution ought to be interpreted as they were understood at the time of the Constitution’s ratification. This judicial philosophy stands in contrast to judicial pragmatism which allows for interpretation of the text to change based on current circumstances (even if the Constitution or law is not formally changed).
Additionally, for decades, conservatives worked effectively in state legislatures across the country to introduce and pass laws that intentionally challenged the precedent of Roe and Casey. The legal strategy was to secure splits at the circuit level, which would invite review by the Supreme Court.
One of these laws, the Gestational Age Act (also known as House Bill 1510), was passed in 2018 by the Mississippi legislature. The law provides protections for unborn children when the probable gestational age exceeds fifteen weeks. Within the “legislative findings and purpose” section of the law, it notes that the United States is one of only a few nations in the world that permit elective abortion-on-demand after twenty weeks of pregnancy. The law explains that, according to modern medical consensus, an unborn baby’s heart begins beating at five to six weeks of gestation, an unborn baby begins to move at around eight weeks of gestation, all basic physiological functions are present at nine weeks of gestation, and vital organs begin to function at ten weeks of gestation.
In short, the Mississippi law makes a comprehensive and compelling case for the humanity of unborn children and provides a strong rationale for why abortion is a barbaric practice, dangerous to women, and demeaning to the medical profession.
On the same day that Gov. Phil Bryant signed it into law, Jackson Women’s Health Organization, Mississippi’s only licensed abortion facility, sued the state. A district court determined the Gestational Age Act was unconstitutional, and the U.S. Court of Appeals for the Fifth Circuit upheld the district court’s ruling. After the Fifth Circuit’s ruling, Mississippi appealed to the U.S. Supreme Court.
History of Roe and Casey
Mississippi’s law intentionally challenged the Supreme Court’s holdings in its two most significant abortion cases: Roe and Casey. In Roe, the Supreme Court ruled that the U.S. Constitution protects the right to abortion based on an implied right to privacy provided by the Fourteenth Amendment. The Court, led by Justice Harry Blackmun who wrote the majority opinion, invented an arbitrary trimester framework that allowed states to regulate abortion the further a pregnancy progressed. Under Roe, states could not regulate or prohibit abortion until the third trimester (about twenty-eight weeks of gestation). However, on the same day Roe was decided, the Court issued another opinion, Doe v. Bolton, which said that abortion could not be restricted if it was done for the “health” of the mother. By defining health to include “physical, emotional, psychological, [and] familial” factors, the Court made it essentially impossible to create any meaningful protections for unborn life.
In 1992, the Supreme Court revisited Roe in Planned Parenthood v. Casey, a case involving a Pennsylvania pro-life law. Although the Court upheld Roe’s central holding that the Constitution protects the right to abortion, it replaced the trimester system with a prohibition on states creating an “undue burden” on women seeking an abortion pre-viability (defined as the gestational age an unborn baby is thought to be capable of surviving outside the womb). Although infants were once thought to reach viability at twenty-eight weeks, modern medicine has determined that children can survive outside of the womb as early as twenty-one weeks, thus moving the point of viability to earlier in gestation than it had been understood to be at the time of Roe. However, the Court left in place the health exception that enables states to permit abortion until birth.
In Mississippi’s legal brief for Dobbs, state Attorney General Lynn Fitch specifically asked the U.S. Supreme Court to overturn these two decisions, arguing “nothing in constitutional text, structure, history, or tradition supports a right to abortion.” While the Court had heard other abortion-related cases since 1992, Mississippi’s attorneys specifically asked the Court to consider whether all pre-viability prohibitions on abortion are unconstitutional (a question that went to the heart of the legal rationale of Roe and Casey).
The Case for Reconsidering
As I have written elsewhere, we know a great deal more today about what goes on inside a mother’s womb than we did in 1973, when Roe was decided. Scientific and technological advances have given us a front-row seat to an unborn baby’s development from the moment of fertilization to birth. Everything present at the first moment of fertilization indicates the presence of a human being, and this truth becomes increasingly clear as the baby develops. At fifteen weeks, an unborn baby’s heart has already beat more than 15 million times. Doctors can tell whether a baby is right or left-handed based on which thumb the baby prefers to suck. Moreover, we now know that unborn babies can feel pain inside the womb by 20 weeks.
As Mississippi correctly noted in its arguments before the Supreme Court, Roe placed the United States in an extreme position on abortion compared to the rest of the world. The United States was one of only six countries that failed to protect unborn life at any point during pregnancy (the other five are South Korea, Canada, and notorious human rights abusers Vietnam, China, and North Korea). Most European countries limit abortion prior to fifteen weeks, making Mississippi’s fifteen-week prohibition modest by comparison. The fact that Roe and Casey allowed abortion throughout all nine months of pregnancy made the United States one of the most permissive nations in the world on abortion policy.
For pro-life Americans, the case to overturn Roe at the Supreme Court was urgent due to political realities. Tragically, Congress has demonstrated resistance to passing even the most basic pro-life protections. Since the passage of the Partial-Birth Abortion Ban Act of 2003 (which prohibited a form of late-term abortion known as intact dilation and extraction), Congress has failed to pass any meaningful protections for unborn children.
For example, in 2020, the U.S. Senate failed to pass two commonsense pro-life bills, the Pain-Capable Unborn Child Protection Act and the Born-Alive Abortion Survivors Protection Act. Pain Capable would prohibit abortion at 20-weeks post-fertilization (the point when babies can feel pain) while Born Alive would require medical care for babies who survive botched abortions. Although a majority of senators supported the bills, both fell short of the 60 votes needed to invoke cloture (i.e., end debate and move to a vote on the bill) and overcome a Democrat-led filibuster.
The Senate votes reveal how partisan abortion has become in the United States. On February 25, 2020, the Senate voted 53–44 on the Pain-Capable cloture vote and 56–41 on the Born-Alive cloture vote. The votes were largely along party lines. Two Democrats (Senators Casey and Manchin) voted in favor of Pain-Capable, and three (Sens. Casey, Manchin, and Jones) voted in favor of Born-Alive. All Republicans voted for Born-Alive, while two Republicans (Sens. Collins and Murkowski) voted against Pain-Capable.
These recent abortion votes underscore how the Democratic Party has moved dramatically from the “safe, legal, and rare” position advocated by Bill Clinton in the 1990s to actively opposing any meaningful limits on abortion. In fact, the parties’ respective positions on abortion were illustrated on the day of the Dobbs decision. Whereas the Republican National Committee celebrated the ruling, President Joe Biden lamented the decision, noting, “The Court’s decision casts a dark shadow over a large swath of the land.” Moreover, since 2016, the Democratic Party platform officially calls for the repeal of the Hyde Amendment, a legislative provision that prevents government funds from being used to pay for abortions.
2022 Midterm Elections
Not surprisingly, abortion became a major issue in the lead-up to the 2022-midterm elections. Shortly after the Dobbs decision, voters in Kansas decided overwhelmingly against adding a pro-life amendment to their state’s constitution. The proposed amendment would have overturned a 2019 Kansas Supreme Court ruling that interpreted the state constitution as protecting abortion. The August 2 vote signaled that abortion supporters were upset and eager to engage in the political process after the Dobbs decision. In fact, despite the generally unfavorable political environment for Democrats in the forthcoming midterms, the Kansas vote indicated that abortion would be a significant factor in November. The vast spending of pro-abortion groups such as Planned Parenthood Action Fund (which alone committed $50 million to the midterms) also suggested that pro-abortion allies were highly motivated.
On November 8, five states asked their citizens to vote on abortion-related amendments. Voters in California, Michigan, and Vermont overwhelmingly approved amendments to their state constitutions enshrining access to abortion. When the votes were counted, the margin in each state was decisive (66.9 to 33.1 percent in California, 56.7 to 43.3 percent in Michigan, and 76.8 to 23.2 percent in Vermont). In Kentucky, voters rejected an amendment that would have ensured that nothing in the state’s constitution “shall be construed to secure or protect a right to abortion or require the funding of abortion.” In a surprise to many, the amendment failed in the conservative state 52.3 to 47.7 percent.
Finally, in Montana, voters weighed in on a legislative referendum known as the Born Alive Infant Protection Act, a referendum that would have required medical professionals to provide medical care to babies who are born alive following botched abortions. Once again, the pro-abortion side won, with the referendum failing 52.6 to 47.4 percent.
Although pro-life initiatives failed across the country, voters nevertheless handed a narrow majority to Republicans in the U.S. House of Representatives, ensuring that pro-abortion federal legislation will not advance in the 118th Congress. Nevertheless, the results of the 2022-midterm elections were undoubtedly a setback for the pro-life movement as the pro-abortion lobby channeled frustration and outrage about the Dobbs decision into wins at the ballot box. Of course, most pro-lifers would gladly accept a poor midterm election showing in exchange for Dobbs. But the importance of persuading our friends and neighbors about the personhood of the unborn remains a challenge for pro-life supporters in the years to come, and the church especially needs to rethink its engagement on the issue.
2. Stayed tuned to Christ Over All this month, as we take up this task throughout January.
Six Ways Christians Can Respond
How should Christians respond to the Dobbs decision?
First, we ought to thank God that Roe has been overturned. More than sixty million unborn babies have died via abortion in the United States since Roe was decided in 1973. God has answered the prayers of His people, and an untold number of babies’ lives will now be saved because of the Dobbs decision.
Second, we must prepare for what’s next. The pro-life movement has been preparing for a post-Roe America for decades, and now that the moment has come, there are already networks of support in place for mothers and babies. Thousands of pregnancy resource centers nationwide have combined to save over 800,000 lives in the past few years, offering loving support and tangible help valued at almost $270 million in 2019 alone. In the years to come, Christians will have many opportunities to put their pro-life convictions into action. And so, we must prepare ourselves to act.
Third, we should educate ourselves on where the laws in our own states stand and what steps we can take to protect more lives. Overturning Roe was never the final goal. Those who believe that every unborn child is made in God’s image need to stay engaged, working with policymakers in states that have yet to protect life beginning at fertilization.
In anticipation of Dobbs, states such as California and New York expanded their abortion laws, and the abortion industry is already finding ways to circumvent pro-life state laws (like sending abortion pills through the mail, despite the proven risks of dangerous complications and coercion). Since June 24, 2022, politicians like Governor Gavin Newsom have promoted progressive states as “abortion sanctuaries” to draw pregnant women across state lines for abortion services. Newsom even spent money from his own reelection fund to put up billboards with pro-abortion messaging. The California governor even quoted Scripture on some of them. Christians should be aware of these efforts and work to counter misleading messaging.
Fourth, it would be a mistake for pastors to assume that there is a widespread pro-life ethic in their churches. According to a 2021 national survey by Family Research Council, only six percent of Americans have a biblical worldview, and only twenty-one percent of those who regularly attend evangelical church services have a biblical worldview (despite eighty-one percent thinking they do).
Additionally, according to a 2020 study by the Cultural Research Center at Arizona Christian University, forty-four percent of evangelicals believe the Bible is ambiguous in its teaching on abortion. Pervasive confusion within the church about the Bible’s teaching on the personhood of the unborn is an indictment of many pastors. More than ever, congregations would benefit tremendously from expositional sermons on key pro-life passages such as Psalm 139:13–16, Proverbs 24:10–12, and all of Luke 1–2.
As these statistics show, most Americans—including many in our churches—are unaware of the Bible’s teaching on the personhood of the unborn. As Americans consider the legacy of Roe and as states continue to debate their abortion laws, there is no better time for pastors and church leaders to equip their congregations to think faithfully about the sanctity of human life. A steady dose of faithful biblical exposition on pro-life passages will form congregants’ conscience and moral imagination and help them navigate the ongoing conversation about abortion.
Fifth, it is important to recognize and continue to engage with the political process that led to the overturning of Roe. While it is uncomfortable for some to acknowledge, we must revisit the fact that the American political process—a process evangelical Christians have participated in for decades in no small part because of their desire to protect unborn life—was how Roe and Casey were ultimately overturned. All the justices that voted to overturn Roe were appointed by Republican presidents. Conversely, the three justices in the minority were appointed by Democrats.
Moreover, as discussed earlier, the political leaders responsible for passing legislation that led to the overturning of egregious abortion precedents were conservative Republicans. As recent elections have demonstrated, the two major political parties are now on opposite sides of the political spectrum when it comes to abortion. Whereas the Republican Party’s platform calls for protecting unborn children and opposes efforts to use taxpayer money to fund abortion, the Democratic Party’s platform now supports abortion without restriction and even calls for the repeal of current legislative provisions that prevent taxpayer money from funding abortion. In the current Congress, only one pro-life Democrat is serving in the House of Representatives. Unfortunately, the Democratic Party of the 1990s that believed abortion should be “rare” no longer exists, and Christians need to be aware of this tragic political reality.
Sixth, and finally, we ought to pray, recognizing that the driving spiritual force behind the killing of over sixty million image bearers has been at work since the Fall (John 8:44). While many factors contribute to abortion, we would be amiss to overlook the spiritual nature of the battle (Eph. 6:12). Scripture teaches that the enemy comes “only to steal and kill and destroy” (John 10:10) and the spirit of antichrist is perhaps no more clearly seen than in the ongoing effort to convince mothers they are better off killing their own children. Thus, if abortion becomes illegal in every state, this would happen only through the sovereign mercy of Almighty God—most likely working through a network of thousands of people prayerfully and actively working against this evil practice. May we endeavor to be such people of prayer!
Nearly fifty years of nationwide abortion-on-demand will forever be a glaring moral stain on our nation’s history. The legacy of Roe is over sixty million babies legally aborted. The Supreme Court’s acknowledgement last summer that Roe was “egregiously wrong” was an important step towards restoring a culture of life in America. But the Court’s admission cannot erase decades of pain and trauma wrought by abortion, nor can it bring back children who were lost.
Nevertheless, on the fiftieth anniversary of Roe, it is appropriate to celebrate its demise. The overturning of this infamous decision is an answer to prayer and the result of tireless work. But while we celebrate, we know our work is not over. The results of the recent midterm election show that many of our fellow citizens still need to be persuaded that a culture of life that values everyone is a societal good that fulfills our nation’s highest ideals. And until this vision is realized, the pro-life movement, led by the church, must sojourn on in its efforts to protect every single life.