Nearly 50 years ago, the U.S. Supreme Court ruled on Roe v. Wade, a decision that created a constitutional right to abortion.
This deeply flawed and overreaching decision is one of the most well-known and controversial cases in American history. Challenges to the decision are almost continuously filed. And they often become some of the highest profile cases taken on by the Supreme Court.
With all the publicity of Roe, there is still a lot of confusion and misinformation about how and why the ruling was made, the other cases surrounding it, why it is so important, and what would truly happen if the ruling were overturned.
What was abortion law before Roe v. Wade?
Before this ruling, America had no federal laws regarding abortion. The Constitution does not acknowledge abortion, Congress did not pass laws addressing it, and the Supreme Court had not considered it.
Rather, each state holds the authority to create its own laws regarding life and abortion. For some states, such as New York, Washington, and Hawaii, abortion was legalized by the early 1970s. But other states outlawed the deadly procedure completely.
One of the important cases that would serve as a precursor to Roe v. Wade was the 1965 decision in Griswold v. Connecticut.
In Griswold, the Court created a constitutional right to privacy for the first time. While the ruling was narrow and only acknowledged the right for married couples to purchase contraceptives, this legal precedent, not the Constitution, would later be used as the genesis for the novel right to abortion.
The majority opinion in Griswold held that the Bill of Rights contained a “right to privacy.” According to Justice William Douglas, this “right to privacy” was found in “emanations of penumbras” from the Bill of Rights.
Penumbra refers to rights guaranteed by implication in the Constitution. In other words, the Court created a right to privacy not found in the text of the Constitution but because the Justices believed the right to be implied by the constitution. Following Griswold, the penumbra doctrine has been vastly expanded to include many rights not found in the construct of the Constitution.
The Court went further in Eisenstadt v. Baird (1971), where the right of privacy for married couples to obtain contraceptives was extended to unmarried individuals.
These two cases, coupled with the cultural attitude shift in sex and responsibility, paved the way for the Court to rule on abortion when two important cases were brought before them.
What was decided in Roe v. Wade?
In the Court’s decision on Roe, seven male Supreme Court Justices (with two men dissenting) ruled that women have a constitutional right to abortion based on the judicially created right to privacy.
The majority opinion, written by Justice Harry Blackmun, said that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The legal rationale for this ruling is deeply flawed, and scholars on both sides of the abortion debate acknowledge Roe’s weak legal analysis.
Justice Thomas’ powerful dissent in June Medical Services v. Russo (2020) emphasized “[t]he Constitution does not constrain the States’ ability to regulate or even prohibit abortion and nothing in the text or original understanding of the Constitution establishes a right to an abortion. Rather, what distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent.”
Moreover, in the course of establishing a right to abortion, the majority in Roe refused to address the fact that settled science establishes that the preborn child is a human being. No advocates before the Court advocated on behalf of the preborn child’s rights.
To dispense of this dilemma, the Supreme Court declined to examine the question of when life begins, saying:
“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” [p160]
This reasoning is eerily similar to the Court’s rationale for slavery, when they refused to acknowledge the personhood of African Americans.
However, since the Roe ruling, medical and technological developments have only further reinforced the fact that the life of an individual human being begins at conception. It’s a fact that 95% of biologists agree with. And a child in the womb has complete set of DNA from the beginning with individual and unique chromosomes.
In short, Roe sacrificed the right to life of the preborn child in favor of the right to abortion for a woman.
Unfortunately, the Court didn’t stop there…
The same day Roe v. Wade was decided, the Court also ruled on the lesser known but seminal case called Doe v. Bolton.
The Doe ruling established that women could obtain an abortion when the life or health of the mother is at risk. The most notable portion of this ruling is the Court’s broad definition of “health.”
According to the Supreme Court, a physician can rule that an abortion is necessary when considering all factors of “health” or wellbeing of the mother –including physical, emotional, psychological, familial, and age of the mother.
By defining health so broadly, even the Court’s limits on abortion are fraught with opportunity for abuse.
Between Roe and Doe, Supreme Court precedent enables women in America to procure abortions:
- For any reason
- Through all nine months of pregnancy
States spent the decades following Roe wrestling with the fallout of its deadly implications. Many states have since dedicated efforts to protect vulnerable preborn lives. However, these efforts are often limited or stopped completely by the federal courts when challenged by the abortion industry.
What has happened since Roe v. Wade?
The evils wrought by a half-century of legalized abortion are vast, impacting nearly every facet of society. Just to name a few…
- An estimated 62 million children have been aborted since Roe.
- Abortion is the leading cause of death in America and worldwide.
- Nearly half of the African American population is missing due to abortion, more than any other group in the country.
- Abortion is used by the human trafficking industry to carry out its horrific activities, with over half of survivors reporting at least one abortion.
Moreover, the abortion industry grew into a taxpayer-funded political machine. And organizations like Planned Parenthood enjoy deep influence in the government, our communities, our businesses, and even our churches.
In the courts, numerous challenges to the Roe and Doe framework made their way up to the Supreme Court. But tragically, none of them accomplished the feat of overturning the ruling.
One significant court case that reaffirmed Roe v. Wade was Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
In this decision, the Court gutted its reasoning in Roe but affirmed its central holding. The Court imposed a new standard to determine if laws restricting abortion were legal, known as “undue burden.” Under this ruling, any law that places a “substantial obstacle in the path of a woman seeking an abortion” before a preborn child is considered viable, is classified as undue burden and invalidated.
This ruling made it more difficult for states to pass restrictions or limitations on abortion and is one of the most common precedents cited in abortion cases.
Today, the abortion industry continues to operate with virtually no regulations or limits, due to these dangerous precedents. And as Justice Rehnquist acknowledged, “abortion jurisprudence remains in a state of utter entropy.”
Would overturning Roe v. Wade end abortion in America?
Abortion in America rests on a deeply flawed legal foundation. Decisions in the decades following the Court’s ruling demonstrate the folly and unworkability of abortion precedents.
We believe that it is no longer a matter of “if” Roe will be overturned, but rather “when” Roe will be overturned. Justice Thomas correctly stated in his June Medical dissent that “the Court perpetuates its ill-founded abortion jurisprudence …the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”
However, the reality is, abortion will not be ended the day that Roe v. Wade is overturned. When this happens, questions of abortion regulations will return to the individual states. This was the situation prior to Roe, and in that era, a few states permitted abortion while the rest largely prohibited it. It is true, pro-lifers will have much more ability on a state-by-state basis to end abortion in their communities. But abortion will continue in others.
Moreover, even if Roe were overturned AND Congress passed a law banning abortion nationwide, abortion would not cease to be a problem for America. That’s because people do things that are illegal all the time.
That’s why, in order to end abortion, we have to understand what causes it.
We’ve learned that women seek abortions not because they want to abort their child. Women do not abort because they want to exercise their right given to them by the Court. It’s not even that they don’t want to be a mom. Women most often seek abortion because they are in need of basic, tangible resources and support. Women need support to address challenges they face, such as food, housing, and childcare.
In fact, 75% of women served by Human Coalition, our sister organization who serves vulnerable women who are seeking abortions, state that if their circumstances were different, they would prefer to keep and parent their child.
But that’s not what the abortion industry offers.
Instead, the abortion industry gleefully exploits fear, and reinforces it until the abortion sale is made. If we cannot reach into that fear and disrupt the cycle of exploitation that the abortion industry relies on, there is little reason to believe that a change from the Supreme Court or a change in law will totally eradicate abortion.
As Colin LeCroy and Az Rahlouni explained for The Hill in 2017,
“Abortion will not end just because the Supreme Court throws out bad precedent and Congress stops subsidizing an abortion juggernaut. It will only end when culture is transformed to support women and men facing unplanned pregnancies and value the dignity of its most oppressed class, the preborn.”
Overturning Roe may change the status quo around abortion enough, by sharing the truth that the preborn child is someone worth protecting, that some women who might have considered abortion before Roe would reject abortion if the Supreme Court overturned it.
However, the sobering fact remains: pregnant women in crisis are largely underserved in our culture. And if we don‘t change the culture, a Supreme Court ruling in our favor may not turn the tide for these women. We must address the root causes of their fear — the circumstances driving them toward abortion in the first place. This is not easy work. But it is necessary.
There’s debate over whether law follows culture or vice-versa.
What we do know is that law and culture influence one another. There is little doubt that overturning Roe would result in a legal and cultural shift — potentially one more dramatic than the small, incremental moves of public opinion toward the pro-life position we’ve been seeing year over year.
Overturning Roe would upend the status quo, giving the pro-life movement a fresh start and renewed energy.
And beyond its likely effect on culture, overturning Roe is simply the right thing to do.
Whatever happens with the Supreme Court in the coming months and years, let’s commit today, right now, to doing everything in our power to restore our culture to the defense of life.
How can pro-life Christians get involved?
First and foremost, pro-lifers need to vote. And not just vote – but vote for candidates who are committed to defending all human lives. That means your candidates should be determined to vote for laws, nominate judges, and advocate for policy that protects preborn children.
We have a great resource that answers all the questions you may have about the importance of voting and the impact it has on the pro-life movement. You can learn more about the importance of voting here: https://hucoaction.org/issues/pro-life-at-the-polls/.
Another way to have your voice heard is by signing our petition in favor of overturning Roe v. Wade. This is a small way to demonstrate to elected officials the vast public support for overturning the ruling that has killed over 60 million preborn children.
Last, and perhaps the most important action item, you can share the truth about Roe v. Wade and abortion. Educate your friends, your family, your coworkers, your small group, your local elected officials, and anyone you can about the truth of the devastation of abortion.
Talk to them about the need for culture change in our country. Show them the places in the Bible that talk about the value of life in the womb. Tell them about the reality of abortion procedures.
It will take time. It will take hard work. It will take a drastic change in our nation’s culture. But together, we can and we will end abortion in America – once and for all.
Citations and Resources
CNN: Before and after Roe v. Wade: https://www.cnn.com/2013/01/22/health/roe-wade-abortion-timeline
Live Action: The True Story Behind Roe v. Wade:
Griswold v. Connecticut:
Eisenstadt v. Baird: https://www.oyez.org/cases/1971/70-17
Roe v. Wade:
Doe v. Bolton:
June Medical Services v. Russo: https://www.oyez.org/cases/2019/18-1323
University of Chicago – Department of Comparative Human Development: Biologists’ Consensus on ‘When Life Begins’: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211703
National Review: Roe Is a Travesty:
Townhall: Why Black Leaders Are Demanding Planned Parenthood Publicly Disavow Its Founder: https://townhall.com/columnists/revdeannelson/2020/09/19/why-black-leaders-are-demanding-planned-parenthood-publicly-disavow-its-founder-n2576405
The Annals of Health Law Volume 23, Issue 1, The Beazley Institute for Health Law and Policy: The Health Consequences of Sex Trafficking and Their Implications for Identifying Victims in Healthcare Facilities: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1410&context=annals
Planned Parenthood of Southeastern Pennsylvania v. Casey:
The Hill: Will the Pro-Life Movement Be A Victim Of Its Own Success?: