Image taken by G.L.O.B.A.L. staff member following the leak of the Dobbs draft decision
By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L. Justice
July 2022
Few topics are as significant, controversial, and divisive as the debates over abortion. Whether pro-life, pro-choice, or some combination based on context, this issue has become a key dividing line in our society. In the United States, this is especially so following the U.S. Supreme Court’s decision on June 24, 2022 in the case of Dobbs v. Jackson Women’s Health Organization, which overturns the landmark decisions of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Traditional and social media are filled with a range of voices and perspectives on this decision. Advocacy organizations on both the pro-life and pro-choice sides are preparing for and engaged protests and battles of various kinds. Businesses and other organizations are making policy decisions on how they will handle the decision. And churches are standing on either side of the societal line drawn on abortion.
In this context, the following Commentary is not an attempt to add to the voices or perspectives already engaged in the debates, but rather to make some sense of these voices on both sides of the abortion issue. The purpose is to provide analysis of the legal, political, and societal implications of the decision on this significant topic. It may be helpful to note that I provide this analysis as a human rights advocate/lawyer, an academic/educator, a political moderate/independent, a mother, a woman, and a Christian. While none of these roles or labels in and of themselves are the focus of this analysis, each of these roles helps provide a context for this analysis. I hope this commentary may be helpful for each person who is considering the impact of this case for them personally, for their families, and their communities.
To understand the implications, let’s first look at the three cases involved:
Roe v. Wade, 410 U.S. 113 (1973), is one of the most recognized legal cases of the modern era. The U.S. Supreme Court in this landmark decision ruled 7-2 that the Constitution of the United States under the Due Process Clause of the 14th Amendment, provides a fundamental right to privacy that generally protects a pregnant woman to choose to have an abortion. The decision struck down many federal and state abortion laws.
The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. The Court announced a pregnancy trimester timetable that prevented governments from regulating abortion in the first trimester, in the second trimester allowed regulation for the abortion procedure only for the purpose of protecting maternal health, and in the third trimester or at the point of viability allowed abortion regulation or even prohibition, except for in the case of protecting the life or health of the mother.
In its wake, Roe v. Wade became the battle cry of both sides of the abortion debate. And since this decision, the United States government (Federal and State) and courts have weighed in on various aspects of abortion, including whether and to what extent abortion should be legal. In addition, the debates revolved around who decides the legality of abortion, and the influence of various moral and religious viewpoints on political decisions. Critics thought that Roe went too far and others that it didn’t go far enough. Still others believe it wasn’t the right way to get to this outcome.
Regardless of the controversies and criticism of Roe v. Wade, it was reaffirmed in 1992 by another landmark case, Planned Parenthood v. Casey, 505 U.S. 833. In that case, the U.S. Supreme Court upheld the right to have an abortion as established by Roe v. Wade, but overruled Roe's trimester framework and "strict scrutiny" standard, and applied an "undue burden" test.
On June 24, 2022, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey in its latest landmark decision, Dobbs v. Jackson Women's Health Organization No. 19-1392, 597 U.S. __(2022). In Dobbs, the U.S. Supreme Court ruled 6–3 to reverse the lower court rulings on the issue. In reviewing the legality of a state law banning abortion in pregnancies of 15 weeks or more, the majority stated that the U.S. Constitution makes no reference to abortion and was unknown in U.S. law until Roe. The dissent disputed this view and some historians argued that many 21st-century rights such as contraceptive, interracial marriage, and same-sex marriage, are also not specifically mentioned in the U.S Constitution. But the matter before the Court in Dobbs specifically focused on the legality of abortion and whether the Constitution granted that right.
With this overview, let’s now consider the implications:
As the U.S. Supreme Court has the authority to affirm or overturn what is considered the law of the land, it’s Dobbs decision is now the current law. But the controversy over abortion continues and even grows. The Dobbs decision was roundly supported by pro-life supporters but equally roundly opposed by pro-choice supporters. Various international observers and foreign leaders also expressed either support or opposition based on their countries’ political stances and social contexts for abortion. And there has been discord between or within all sides of the debate -- Republicans and Democrats, various church denominations, and various segments of society.
For those who are on the Left/Democrats, abortion rights are central to reproductive rights and more broadly as fundamental women’s rights. The idea that a government or a branch of the government can legislate or decide what a woman does with her own body seems antithetical to this point of view. And so Dobbs seems to be a dramatic step backward for women’s rights, as from their point of view women, not the government, should determine what they do with their bodies. And yet, not all Left/Democrats are completely certain about the legality of abortion in all circumstances.
On the Right/Republican side, most believe that abortion is infanticide – the killing of an unborn child. What makes abortion particularly egregious is that it is the killing of a child before birth against the child’s future interests or potentials. The idea that women’s rights supersede that of the unborn child’s right to life, seems to be antithetical to their human rights, especially since the right to life is the first and overarching of all human rights. And yet, not all Right/Republicans are settled that outlawing abortion is the right decision. And most of those Right/Republicans would agree that abortion could be allowed in narrow circumstances such as rape or incest or health of the mother, but each instance would need review.
While there is merit to both sides of arguments about women’s reproductive rights and children’s right to life, the difficulty is that many of the debates also implicate some significant aspects of human rights and how they are exercised.
First, human rights do not function in a vacuum nor irrespective of others. Certain rights can be curbed in the interest of broader or other rights. So, the idea of a women’s rights being fundamental and therefore superseding the rights of the child is a not an accurate view of the relationship between women/children in utero and human rights of both. The wholly distinctive relationship of a woman and child in utero makes for a greater concern for the human rights of BOTH rather than either one overriding the other.
With that understanding, those who advocate for a pro-life position in all cases, would be applying human rights standards narrowly. There can and will be instances where the interests to protect the life of the mother may be more significant than for the unborn child. And some degree of government regulation may be requires to ensure that protection.
While that balancing of interests can be challenging, in certain instances society has been mostly settled – such as in the case of the health of the mother, or even in the context of rape and incest. In those instances, although the unborn child remains innocent and with the right to life, that right is curbed given the severity of the interests to protect the mother from continued harm.
On the other hand, women who would otherwise be healthy to carry and have the child but choose not to continue the pregnancy for a myriad of personal reasons and in various political, social, and economic contexts, should not be able to easily make that decision unless their reasons were significantly more important than the right to life of the child – which would be of the highest significance.
As the debates and protests continue and escalate, the Dobbs case and the abortion debate more broadly raises numerous complex and important concerns that both sides must weigh, including and not limited to the following:
Balancing fundamental Rights: Fundamental rights are significant in protecting the human rights and dignities of each individual and community. Protecting the fundamental rights of particularly vulnerable individuals and communities is especially important. Certainly women’s rights are extremely important to uphold, and reproductive rights is a central aspect of women’s rights. But as noted human rights work in combination, and vary in levels and degrees. One person’s exercise of human rights cannot in general impede another’s human rights. Since the right to life is the most fundamental of human and civil rights, other substantial rights may be curbed in the effort to support this higher level right. Abortion is a particularly unique situation where it can implicate fundamental rights of both the mother and the child. But in most instances, the exercise of this procedure whether considered a fundamental right or not, would significantly impede a higher level fundamental right of the child. Whether or not the law considers abortion as a fundamental right, the procedure and the context raises a series of fundamental rights concerns that requires careful balancing.
Advocating against Infanticide: Infanticide at all stages of a child’s life, in utero or after birth, is a significant human rights concern worldwide. What is especially difficult is that infanticide is generally done by the mother of a child. Abortion is a form of infanticide and is not limited to the U.S. Those who advocate for pro-choice for women as a support of women’s rights, need to consider abortion not only in light of reproductive rights but also in light of human rights concerns against infanticide. Even if abortion were legalized, that does not take away this concern. And even if the conditions of abortion could be improved, we should be advocating against infanticide in every societal context.
Addressing the Risks of Unregulated Abortion: Among the most compelling arguments in support of abortion being regulated by government is that it would potentially reduce the number of risky abortion procedures. Abortions have and would happen with or without legality. And “back room” abortions have historically and presently presented great concerns for women’s health and mortality. Since Roe v. Wade, the risk of death from abortions was reduced arguably because of the legality and related regulation. Those risks were reduced as medical technology advanced, earlier termination of pregnancies conducted, and physician’s skills improved. The question then is whether or not the government legalizing and regulating abortion would make it more likely to protect against the risks of illegal and unregulated procedures. This is not just a health question but a broader policy and societal question.
Protecting Pregnant Women: Pregnancy is not just a physical or biological condition, it presents various political, social, and economic realities that can be significant for any woman, especially those most vulnerable. The idea of carrying a child for 9+ months is a remarkable burden in many contexts, and the implications for young women, poor women, and abused women are substantially different than for those who are wanting and pursuing parenthood. As such, abortion is not only about choosing to terminate a pregnancy or ending the life of a child, it is also a matter of addressing the substantial interests and concerns in the life of a woman and her body. And without greater supports and protections for woman not only in the context of pregnancy but before, during, and after pregnancy, we run the risk of unwanted pregnancy.
Protecting Unwanted Children: While there are compelling reasons to protect the life of the unborn, one factor that needs consideration is the challenge of unwanted children. While we would hope that each child born would have parents that care for them, that is not the reality in many parts of the world. As such, a child being born raises larger issues of how are they loved and cared for; what the chances of survival after birth are as they grow, and what political, economic, and social conditions and circumstances they face. The issues before society is not only protecting the unborn, but also protecting the born, particularly those in vulnerable situations.
Adoption and Foster Care Reforms: While adoption and foster care are really important ways for children to be cared for when their biological parents are not able to do so, the adoption and foster care systems are raise many challenges and issues in most countries. They even present substantial risks for children. While there are numerous positive examples, there are a likely and equal number of negative ones. Significant investment and reforms in the adoption and foster care systems are essential to address the needs of children who do not have the care of their biological parents.
Provision of Basic Services: For many lower income women who might choose abortion, among the considerations is their access to basic services. That is an issue that must be addressed far beyond pregnancy or abortion concerns. Human rights can not be fully realized for mothers, children, or families without access to adequate food, clean water, housing, and basic health and education services. That is among the more important elements in addressing most human rights concerns, but certainly factors into this one substantially.
While these are just some of the concerns raised by the abortion debates, what they present is a context far more difficult than solely determining whether abortion is illegal or not. The context is rooted in considering the human rights framework and its application for people in many situations. While society is not settled about the issue of abortion, we are also not fully equipped to handle the ramifications of either legality or illegality unless and until we also address the above concerns. What is needed at this juncture is not protests, but policies and practices that truly protect women and children at every stage and uphold the human rights of all whether pre-born or born, women or children.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.