On Friday, June 24, 2022, the United States Supreme Court handed down a decision in Dobbs v. Jackson’s Women’s Health Organization that overturned Roe v. Wade, which ushered in fifty years of preventing states from protecting unborn children, and Planned Parenthood v. Casey, which reinforced Roe twenty years later. But the Court this past Friday declared, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
Unfortunately, many people are tarring this human rights victory by spreading the following myths and misinformation about this important case.
- “The Supreme Court just made abortion illegal”
The Supreme Court has the power to interpret the law; it does not have the power to make law. Roe v. Wade held that laws that restricted abortion in any meaningful way were unconstitutional, so they could not be enforced. Dobbs has now determined that Roe was “wrongly decided,” so laws that protect the unborn by outlawing abortion are constitutional. That means that a state can but does not have to outlaw abortion.
Some states, like California and New York, have already passed laws to codify Roe v. Wade into their own state constitutions. Other states may choose to protect the unborn by outlawing abortion at various stages, and some have already outlawed abortion because they have “trigger laws,” which were set to ban abortion once Roe v. Wade was overturned.
- “The Supreme Court will next ban contraception, same-sex marriage, and interracial marriage”
Once again, the Court only interprets laws; it doesn’t make them. In overturning Roe, the Court found that the right to privacy does not entail the right to end the life of a developing human being. This fact makes abortion different from other cases that made rulings based on “privacy rights.” Dobbs even said, “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
When it comes to LGBT issues, it’s worth remembering that even though Neil Gorsuch voted for Dobbs, he also wrote the majority decision in Bostock v. Clayton, which says civil rights protections related to a person’s biological sex also apply to sexual orientation and sexual identity. But even if the Supreme Court ever does overturn cases that established things like the right to purchase contraception, and does so because those cases were based on flawed arguments, that doesn’t mean that those things will suddenly become illegal. States will then be free to ban contraception, for example, if the Court overturns Griswold v Connecticut (1965). As of now, there is no sizable group of people who want to outlaw non-abortifacient contraception. Even many Catholics consider contraceptives like condoms to be an evil on par with adultery: something that requires moral condemnation rather than criminal sanctions.
Finally, the merits of a decision, like Dobbs, should not be evaluated based merely on how it relates to other cases people support. The decision should be evaluated on whether it upholds the Constitution—and this decision argues convincingly that there is no right to abortion.
- “The Dobbs decision is invalid because justices like Brett Kavanaugh lied under oath about not overturning Roe v. Wade”
The legal principle of stare decisis says that, in general, legal precedent established by previous rulings should be maintained when determining how to apply the law in current and future cases. During their confirmation hearings, Supreme Court justices like Brett Kavanaugh were asked what they thought of Roe v. Wade. They affirmed that it was a major precedent that should be viewed in light of stare decisis.
However, stare decisis is not a universally binding rule. This isn’t the first time the Supreme Court has overturned previous decisions, and even gone so far as to say they were wrongly decided. One of the most famous examples is Brown v. Board of Education, overturning Plessy v. Ferguson on the issue of racial segregation. But Dobbs even cites two cases in the 1940s that overturned—in the span of just three years—the Court’s decision on requiring students to pledge allegiance to the flag.
During their confirmation hearings, the justices who later voted to overturn Roe said Roe was an important precedent, but they never said something like “I promise never to overturn this case,” and so none of them came anywhere close to committing perjury.
- “Women will die because hospitals won’t commit abortions even if it is necessary to save their lives”
First, if a woman’s life is threatened late in pregnancy after the fetus is viable then abortion isn’t necessary. It makes more sense to simply deliver the child through a cesarean section (a C-section) since it takes longer than a day to stretch the cervix wide enough in order to abort a late-term fetus. In these cases, I ask pro-choicers, “Wouldn’t it be better to deliver the child whole and give him a chance to live (even if the chance is small) than to deliver him in pieces with no chance to live?”
Second, in early pregnancy, when there is essentially no hope that the child can be saved, it is permissible for doctors to perform a life-saving operation on the mother with the indirect result being the death of the child. According to the U.S. Catholic Bishops’ Directives for Catholic Hospitals, “operations, treatments, and medications that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the unborn child is viable, even if they will result in the death of the unborn child” (47).
The most notable example of this case is ectopic pregnancies. These occur when the embryo implants in some place other than the uterus, which in nearly all cases is one of the fallopian tubes. Unlike complications that arise later in pregnancy, the child cannot be removed and safely placed somewhere else, such as a neonatal intensive care unit. Any removal of the child will result in his death. Consequently, in these cases, it is morally acceptable to remove the damaged section of the fallopian tube where the child implanted.
This action is moral because the primary intention is to remove the damaged section of the fallopian tube that is a threat to the mother’s health. The child’s death is a foreseen but unintended consequence of an act that is not wrong in itself. To give an analogy, if you were a lifeguard and noticed two people drowning, you could save one even if you knew that by choosing to save one, you wouldn’t have time to save the other. However, you could not shove one drowning person’s head underwater in order to use him as a flotation device for the other drowning person.
Due to the complex ethical issues that can rise in cases like these, laws that prohibit abortion in the United States have always left an exception to save a woman’s life. In 1960, in an article called “Illegal Abortion as a Public Health Problem,” Planned Parenthood’s medical director, Mary Calderone, wrote, “In 46 states legal abortion is permitted to preserve the life of the mother; three states allow, in addition, preservation of the health of the mother.” She even admitted, “It is hardly ever necessary today to consider the life of a mother as threatened by a pregnancy.”
Finally, the answer to “hard cases” like whether abortions are necessary to protect a woman’s life is not to keep abortion legal through all nine months of pregnancy, which is what Roe v. Wade did and Dobbs has now undone. The answer is to pass reasonable laws that protect unborn children and their mothers from all acts of violence.