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A victory for life and the Constitution

Erin Hawley and Kristen Waggoner | The historic Dobbs decision rights a huge wrong


Pro-life proponents react to the Dobbs ruling outside the Supreme Court on Friday. Associated Press/Photo by Jose Luis Magana

A victory for life and the Constitution

The U.S. Supreme Court’s courageous decision in Dobbs v. Jackson Women’s Health Organization is a win for life and the Constitution. That historic ruling finally reverses the court’s disastrous opinion in Roe v. Wade—a decision that made up a constitutional right to abortion and resulted in the deaths of more than 60 million unborn children. Because of the court’s ruling in Dobbs, states may now fully protect unborn life.

The Mississippi law at issue in the case, the Gestational Age Act, protects unborn children and the health of their pregnant mothers based on the latest science. It protects unborn life after 15 weeks of gestational age—a point in time when babies can move and stretch, hiccup, and quite likely feel pain. It permits abortions to save the life of the mother or for severe fetal abnormalities. Despite the modesty of Mississippi’s law, the lower courts struck it down because no matter what science showed, or how strong a state’s interest in protecting unborn life was, under the Roe regime, states may not protect life until viability—about 22 weeks of gestational age.

Dobbs is a win for life. Fifty years of scientific progress and innovation establish what the Bible has always taught: Life begins at conception. Ultrasound technology allows expectant parents to see the truth of Psalm 139: Children are fearfully and wonderfully made from the very beginning.

Under Roe v. Wade, moreover, the United States has been an extreme outlier in abortion law and policy. As the chief justice noted during oral arguments, the United States is one of only six nations, including China and North Korea, that allow elective abortions through all nine months of pregnancy. The Washington Post recently ranked the United States as the fourth most liberal abortion country in the world. Most countries do not allow elective abortions at all, and 75 percent protect life after 12 weeks of gestation.

As the Dobbs majority explained, Roe was an exercise in “raw judicial power.” It took from the states the ability to protect life and profoundly damaged the political process by inventing a right to abortion out of thin air.

Dobbs is a win for the Constitution. There was widespread consensus—irrespective of policy views on abortion—that Roe v. Wade was wrongly decided. Liberal scholar after liberal scholar criticized the decision. Indeed, the late Justice Ruth Bader Ginsburg criticized Roe as “heavy-handed judicial intervention” that wrongly halted a political process.

The majority in Dobbs made short work of the flawed argument that the Constitution contains a right to abortion. As the court explained, a right to an abortion has no basis in constitutional text, structure, or history. To be protected under the 14th Amendment’s liberty clause, there would need to be evidence of a right to abortion deeply rooted in our nation’s traditions and history. But there has never been a deeply rooted historical right to abortion in America. Much to the contrary, abortion has been unlawful since the common law. In 1868, when the 14th Amendment was adopted, 28 of 37 states made abortion a crime. And when the Supreme Court decided Roe in 1973, it overturned the pro-life laws of nearly every state, upending centuries of legal protections for life. As the Dobbs majority explained, Roe was an exercise in “raw judicial power.” It took from the states the ability to protect life and profoundly damaged the political process by inventing a right to abortion out of thin air.

According to the Dobbs dissenters, women need abortions to thrive. But that is an outdated and paternalistic view of women. The Roe majority in 1973 (composed of seven men) lied to American women when it said motherhood consigned them to a “distressful life and future.” Women are capable of being mothers and living fulfilling lives. Further, circumstances have changed since 1973. Every state has a safe-haven adoption law, and contraception is widely available—with both a median cost and failure rate approaching zero.

The decision in Dobbs is a tremendous legal victory for pro-life believers. It must also be a rallying cry. The real work is just beginning. We must come together as churches and communities to affirm women and children. We must redouble our efforts so that every pregnant woman has the resources she and her child need. Today is a new day in America—a post-Roe day—a day in which we face the opportunity and responsibility to lead the world in caring for women and children.

Editor’s note: Erin Hawley and Kristen Waggoner served on the state of Mississippi’s legal team defending the Gestational Age Act before the U.S. Supreme Court, with Hawley serving as counsel to Mississippi.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and former law professor.


Kristen Waggoner

Kristen Waggoner is general counsel at Alliance Defending Freedom, the largest legal organization that protects religious freedom, free speech, parental rights, and the right to life.

@KWaggonerADF

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