Five months ago I posted LDS Abortion Policy in the Shadow of Dobbs, following oral arguments in the US Supreme Court case Dobbs v. Jackson Womens Health Organization. The Court is reviewing the constitutionality of the State of Mississippi’s ban on abortions performed after fifteen weeks, with the possibility that the Court will use the case not merely to uphold Mississippi’s law (which is clearly unconstitutional under existing precedent) but also to set aside its previous holdings in Roe and Casey and allow each individual state to set its own laws to regulate or prohibit abortions.
With the recent unauthorized release of a draft opinion authored by Justice Samuel Alito doing exactly that, the likelihood that the Court will reverse Roe and Casey in its final opinion has gone up significantly. In this post, I will provide a short update in the first few paragraphs, then repeat the material from my earlier post, which looks at both LDS abortion policy and Utah state law. Utah has a trigger law that, if Roe and Casey are reversed, will immediately make abortion in the state illegal except for cases of rape, incest, serious danger to the mother, or serious problems with the fetus. Of course, a woman attempting to secure an abortion under one of those exceptions must meet whatever requirements the state puts in place to qualify for the exception. In some cases meeting those requirements may be difficult or unwelcome, thus many women who technically qualify for an exception will be either unable or unwilling to practically qualify for an exception.
Update
On May 2, 2022, Politico posted a 98-page draft opinion authored by Justice Samuel Alito that would, if issued by the Court as a final opinion in the case, uphold the Mississippi law being challenged in the Dobbs case but also overrule Roe and Casey. [You can read a shorter edited version of Alito’s draft opinion at the Washington Post.] Those two earlier US Supreme Court cases established, then defended with modifications, a woman’s constitutional right to receive an abortion. In other words, any state law that exceeds the limits spelled out Roe and Casey can be challenged in court, then struck down as unconstitutional. That’s what the Fifth Circuit Court of Appeals did when it reviewed the Dobbs case. The Supreme Court agreed to hear an appeal from that decision. Oral arguments happened five months ago. The Court is still deliberating and no final opinion has been issued. Even if Alito’s draft becomes the basis for a majority opinion of the Court, some of the language will no doubt be toned down, some arguments dropped, and others added. It’s just a draft.
Nevertheless, the unauthorized release of Alito’s draft opinion has set off a firestorm of discussion. First, such a leak of a draft opinion in a pending case is unprecedented. Just another sign that the norms of government in the United States are coming unraveled. The leak is also a sign that politics is playing a larger role within the federal judiciary, even the Supreme Court. There is speculation about who leaked the document, but no facts yet. A left sympathizer might have leaked it to stir up opposition to the possible outcome and maybe energize the left for the upcoming midterm elections. A right sympathizer might have leaked it to make it harder for conservative justices wanting to overrule Roe and Casey to backtrack to a more moderate outcome of the sort supported by Chief Justice Roberts, which might uphold the Mississippi law but not strike down the substance of Roe and Casey.
Consequences? It’s wrong, I think, to see this leak as primarily intended to influence the election in November, because the final opinion will come out in a month or two, well before the election. That final opinion will overshadow this leaked draft, which no one will be talking about much after the final opinion is released. More likely, the release is intended to influence the deliberations of the Court and possibly pressure one or more of the Justices to hold their vote or change their vote. That’s more damaging to the Court, I think. It’s possible that when the identity and motives of the leaker are discovered, the discussion of the leaker and what they are trying to accomplish will eclipse the discussion of the leaked draft itself.
I have a long discussion of the consequences for LDS policy and Utah law in the original post (see below as well). Not much has changed, apart from the increased likelihood (in view of the leaked draft) that the Court will indeed overrule Roe and Casey. Here’s a question for readers: Will an LDS General Authority address the issue in the October 2022 Conference? They can’t stop talking about religious freedom and the Proclamation on the Family, but they tend to studiously avoid the particular topic of abortion. The most recent mention I can find in Conference was President Oaks’ 2012 talk “Protect the Children,” with only two short paragraphs addressing abortion. My guess is not one in ten active LDS have ever read the LDS policy on abortion or could recite its specifics.
— End of Update —
LDS Abortion Policy in the Shadow of Dobbs
Abortion law and policy is a huge topic; this post is necessarily rather limited. It is a politically controversial topic and also a sensitive topic on which people have deep personal and moral convictions. I’m well aware of that sensitivity and will address the topic in a straightforward and objective manner. Given the tenor of the oral arguments heard before the US Supreme Court a week ago in Dobbs v. Jackson Women’s Health Organization, it’s very likely the Court will hand down a big decision later this year, probably in July. The Court might limit constitutional protections (limitations on how a state law can or cannot regulate abortion) to the first fifteen weeks of a pregnancy, or it could overturn federal constitutional protections entirely, turning the entire field of law back to the individual states. It seems unlikely the Court will leave existing precedent intact. After lying somewhat dormant politically for two generations, the abortion issue could emerge to dominate election campaigning in 2022 and beyond. So it deserves an early discussion.
First I’ll set out the current LDS policy, found in the current version of the General Handbook in Section 38.6, “Policies on Moral Issues,” at subsection 38.6.1, “Abortion.” Then I’ll give portions of the current Utah code on abortion, found at Utah Code section 76-7-302. Finally I’ll give the more restrictive Utah trigger law that will automatically take effect if the US Supreme Court overturns the current constitutional standard established in Roe and Casey. That is found at SB 174, signed in March 2020. The discussion of Utah law is relevant because LDS leadership, despite presiding over a church with a worldwide presence, is still very attuned to Utah politics and law. I’ll quote or summarize a text, followed by some commentary, then wind up with some reflections on the LDS position.
LDS Abortion Policy
Give a careful reading to the framing and the word choice of General Handbook, Section 38.6.1, “Abortion,” which reads as follows (first sentence omitted):
The Church opposes elective abortion for personal or social convenience. Members must not submit to, perform, arrange for, pay for, consent to, or encourage an abortion. The only possible exceptions are when:
— Pregnancy resulted from forcible rape or incest.
— A competent physician determines that the life or health of the mother is in serious jeopardy.
— A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.
Even these exceptions do not automatically justify abortion. Abortion is a most serious matter and should be considered only after the persons responsible have consulted with their bishops and received divine confirmation through prayer.
Presiding officers carefully review the circumstances if a Church member has been involved in an abortion. A membership council may be necessary if a member submits to, performs, arranges for, pays for, consents to, or encourages an abortion (see 32.6.2.5). However, a membership council should not be considered if a member was involved in an abortion before baptism. Nor should membership councils or restrictions be considered for members who were involved in an abortion for any of the three reasons outlined earlier in this section.
Bishops refer questions on specific cases to the stake president. The stake president may direct questions to the Office of the First Presidency if necessary.
As far as has been revealed, a person may repent and be forgiven for the sin of abortion.
The policy expressly recognizes exceptions to the general LDS prohibition of abortion: rape, incest, serious danger to the mother, serious problems with the fetus. It’s worth noting that the third exception distinguishes between “fetus” and “baby.” But a couple of terms seem problematic (this gets to the framing issue). The policy presumes rather bluntly that women seeking an abortion are doing so out of “convenience.” That presents as selfish or even flippant a decision that many or most women regard as serious and difficult. More likely a lot of men regard an abortion decision as one of convenience. Using that term and that framing in the LDS policy likely reflects the fact that it was men who wrote and approved the policy, almost certainly with little or no input from women. It seems more like projection (men assuming most women think about abortion the same way most men do) than description.
Another problem is the term “forcible rape” in the first exception. It invites the reader to distinguish between “forcible rape” (which qualifies for the exception) and all those other kinds of rape, which apparently don’t. In criminal law, “forcible rape” is a legal term, a specific form of sexual assault involving non-consensual intercourse, subject to particular definitions in a given state’s criminal code. But bishops aren’t attorneys and the LDS policy is not a criminal statute. To a lay reader, and arguably in the context of the LDS policy, “forcible rape” sounds like an aggressive or violent rape (a stranger jumping out of the bushes at night, etc.), as contrasted with other kinds of rape: date rape, marital rape, or statutory rape (sex by an adult with a minor) which somehow aren’t like “forcible rape.” I’ll bet many bishops encountering those scenarios when counseling with a woman wouldn’t even recognize those scenarios or acts as rape or acknowledge that a resulting pregnancy would qualify for the abortion exception. So if the LDS policy comes up for public discussion once the Dobbs decision is handed down and abortion law becomes a hot topic, women’s advocates should push for better training for bishops and a public clarification by LDS leadership that the LDS abortion exception for rape applies broadly to all rape scenarios, not just to some subset of all rapes. The fact that the LDS policy seems to suggest there are bad rapes and there are good rapes (or not-so-bad rapes that just don’t qualify for the LDS abortion exception) is just deeply problematic.
Which leads to the next problem with the policy: it seems to require LDS girls and women to consult with LDS bishops and get approval that they in fact qualify for an exception in order to exercise it. Abortion under one of the exceptions “should be considered only after the persons responsible have consulted with their bishops.” As noted, the problem with this is that LDS bishops get no particular training in the policy and sometimes don’t know what they are doing. In some rape scenarios, neither the LDS bishop nor the girl or woman likely recognizes that a rape occurred and consequently the bishop does not understand how the policy applies. Until the Handbook went public about a dozen years ago, members did not even have access to the LDS policy!
Note the reasonable and compassionate direction at the end of the policy: “Nor should membership councils or restrictions be considered for members who were involved in an abortion for any of the three reasons outlined earlier in this section.” There’s no qualifier at the end of that statement like “if they have consulted with their bishop” or “as approved by an LDS official,” so it ought to protect LDS women who proceed under one of the exceptions regardless of whether they consulted with their bishop or even if they did so and the bishop did not approve.
Utah Law
Not surprisingly, current Utah law (at Utah Code 76-7-302) tracks the LDS policy to some degree. It requires abortions to be performed by a physician and at a hospital or abortion clinic. It allows abortions in two broad categories: (1) if “the unborn child is not viable” (that is, as required to be allowed without undue burdens under current federal law as expressed in Roe and Casey); and (2) under exceptions for rape, incest, serious danger to the mother, and serious problems with the fetus, if the unborn child is viable.
What you should notice is that in many cases where a girl or woman would seek an abortion that qualifies for one of the exceptions, the procedure would be performed well before the viability threshold is reached, that is under “the unborn child is not viable.” In other words, there is no need for doctors or clinics to seriously consider or document an exception until roughly the end of the second trimester (the Roe framework). If the Court’s upcoming decision in Dobbs moves the constitutionally protected boundary back to 15 weeks or eliminates constitutional protections entirely (allowing states to set their own abortion laws and regulations without regard to controlling federal law), the exceptions will become more relevant in many more cases. Which brings us to Utah’s trigger law.
Senate Bill 174, “Abortion Prohibition Amendments,” was signed in March 2020 and took effect May 12, 2020. It removes from permissible abortions the broad first category noted earlier in this section (“the unborn child is not viable”) if federal law ceases to limit state law prohibitions. This law kicks in only if federal law protecting abortion (as established in Roe and Casey) is rescinded. Which could very well happen in the Dobbs decision in mid-2022.
What the “trigger law” does, in simple terms, is to remove the broad first category of allowable abortions stated in current Utah law (if “the unborn child is not viable”) but then restate the current exceptions for rape, incest, serious danger to the mother, and serious problems with the fetus. In other words, if the trigger law takes effect, the only abortions allowable in the state will be those that qualify under one of the exceptions. The exceptions would, under this scenario, obviously become much more important and more widely discussed.
What would trigger the “trigger law”? As stated in the last paragraph of the law: “The provisions of this bill take effect on the date that the legislative general counsel certifies to the Legislative Management Committee that a court of binding authority has held that a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.” So it seems to be the case that if the Court, in Dobbs, adopts a 15-week standard for constitutional protection, the new Utah law will not be triggered. But if the Court overturns Roe and Casey, and allows states to establish their own abortion laws independent of any federal constitutional limitation, then the new Utah law takes effect. Automatically, with no further public discussion, legislative debate, or executive action, apart from the legislative general counsel making its certification to a legislative committee.
Consequences
So here’s what’s going to happen. This issue will simmer on a back burner until one day in June or July or August 2022 the Court will issue its opinion in Dobbs. It’s unlikely the Court will leave existing law unchanged. If that were likely, the Court would not have taken the case. If a 15-week limit for constitutional protection is adopted (a compromise of sorts), adjustments will be made and heated op-eds will be published. The Utah trigger law will not take effect. But if the Court overturns Roe and Casey, and removes the federal government’s role in limiting what state abortion law can prohibit, all hell will break loose. That’s the interesting scenario. A few quick observations, including the LDS context:
First, politics. If Roe is overturned, the 2022 midterms will be about abortion, Covid, and Trump, rather than just Covid and Trump. If every state can regulate or prohibit abortion, this will be not just a national issue but a state and even local issue as well. Abortion rhetoric has always been rather heated (think protestors with signs screaming at women walking into abortion clinics), but in our current climate of polarized politics, nasty rhetoric, and social media sniping … can you even imagine?
Second, state law. When I say “all hell will break loose,” I’m exaggerating for effect. On the one hand, there are a lot of areas of law where states have a free hand to set their own laws with very little federal limitation, from speed limits to property laws to regulating professions and services to drinking age to criminal statutes. So just because states might get to set their own laws on abortion doesn’t mean chaos or catastrophe. On the other hand, the stark difference between the resulting law on this or that side of a state border might be jarring. Consider that a year from now it might be the case that a legal abortion routinely performed one mile inside the California border would, if performed two miles away, one mile inside Arizona, be a felony punishable by years in jail. Or the Utah-Nevada border.
Third, LDS policy. Here’s where it gets interesting. Not all states will allow exceptions — the current Texas law that the US Supreme Court declined to block pending review by lower courts, for example, does not have an exception for rape or incest. So under current LDS policy, a bishop counseling with a victim of rape considering an abortion might say: “You qualify for an exception to the LDS abortion prohibition, but under the current law of our state, you cannot get one here. You will need to go to an out-of-state clinic to get the procedure.” In another state, a bishop might say: “You qualify for an exception under LDS policy, and you can get that procedure done at a clinic here in town subject to the clinic approving your exception under state law.” In yet another state, a bishop might say: “You qualify for an exception under LDS policy, and you can get that procedure done at a clinic here in town — without any particular approval by the clinic.” In other words, at some point soon the LDS policy might be less restrictive, equally restrictive, or more restrictive than state abortion law, depending on which state is involved. I suspect that will be hard for the Highly Correlated LDS Church to deal with and a little tricky for bishops to grasp.
Here’s the other thing. It’s possible that with federal protections removed and many states adopting more restrictive abortion laws, the LDS policy itself will change. There will no doubt be some public discussion of the LDS policy as well as possible Utah state law changes.
A Final Word
Once upon a time, Bill Clinton coined the phrase “safe, legal, and rare” as his position on abortion. You will probably hear that phrase again in the upcoming post-Dobbs debate. That’s probably a good point of departure for any Latter-day Saint discussion of abortion, with “rare” introducing a discussion of the scope of the exceptions approved under LDS policy. You might very well be part of that discussion next year in an LDS class or meeting. I hope this post contributes to that discussion being more informed and productive than it would otherwise have been.
I noted at the beginning of this post that abortion is a sensitive personal topic for most people, particularly those who have had personal experience with a procedure or supported and assisted a family member or friend in that situation. For that reason, I ask that comments focus more on the LDS policy and state law and Dobbs, and less on any details of your personal experience with abortion, either pro or con. If someone else does share their own personal experience, I hope it’s an abbreviated account — and please oh please, don’t other commenters chime in with a critique of or a dispute about the details of another’s personal account if shared. Just make your general points in a friendly way. It’s good practice for the real-life conversations you’ll be having next year.
Wheat & Tares 
Dave B: your understanding of the abortion issue, especially as to how it relates to the state of Utah and the Church, is impressive and informative. I have to correct you, however, on the following statement: “If Roe is overturned, the 2022 midterms will be about abortion, Covid, and Trump, rather than just Covid and Trump”. I’ve read many of your posts and I believe that for you personally it’s about those three issues.
I suspect that you are correct that if Roe is overturned by the Supreme Court, that will become a major issue in the midterms in Nov. We agree. But you left out a very important issue that isn’t just top 3, it’s #1: the economy generally and inflation specifically. Inflation is not only a money killer, it is a career killer for politicians who are in a position to address it and don’t do so. Most of us are too young to remember painful inflation since it has not been a factor since the early 80s. I was a teenager at the time and I still remember my dad’s comments about inflation and high interest rates. If you’re in your 40s or younger, you have no memory of high inflation but take my word for it, it’s on everybody’s mind again for the first time in 40 years. Even the well-off hate to see it even if their standard of living doesn’t suffer.
We can debate who and what is more responsible for high inflation: The US Congress, the Biden White House, the Federal Reserve, Covid / supply chain, the Russian war in Ukraine. This is not the time or place for that debate. But whomever is “in charge” will suffer the consequences and since the Democrats control the White House, the House, and the US Senate (with the tie breaker), their party is likely to suffer significant losses even with Trump crazys on the other side and even with the Roe vs Wade advantage.
“The most recent mention I can find in Conference was President Oaks’ 2012 talk “Protect the Children,” with only two short paragraphs addressing abortion”
Elder Andersen gave a talk about abortion in general conference like a year ago.
Thanks for the comments.
food allergy, thanks for the pointer to Elder Anderson’s talk, “The Personal Journey of a Child of God” (link below). He did devote two long paragraphs to abortion, one of which was almost entirely quoting a 1998 Pres. Hinckley talk. On the theologically and morally telling point of when life begins (in LDS speak, when the spirit enters the body), he punts. Completely:
“Some may question if life begins with the formation of an embryo, or when the heart begins to beat, or when the baby can live outside of the womb, but for us, there is no question that spirit daughters and sons of God are on their own personal journeys coming to earth to receive a body and experience mortality.” The last option, “when the baby can live outside of the womb,” is termed viability and was a key distinction in the Roe trimester framework.
https://abn.churchofjesuschrist.org/study/general-conference/2021/04/26andersen?lang=eng
nI do not recall Elder Anderson’s talk two years ago to be a call against abortion laws. Rather, I recall Elder Anderson asking each of us if there was something we could do to help a person avoid an abortion, including by offering to use our money to financially support that family. It would be good if even a few among us would be responsive to Elder Anderson’s plea.
I think it fits to remind ourselves of the Abortion statement in the LDS Newsroom — here is the complete text, with my emphasis added:
The Church of Jesus Christ of Latter-day Saints believes in the sanctity of human life. Therefore, the Church opposes elective abortion for personal or social convenience, and counsels its members not to submit to, perform, encourage, pay for, or arrange for such abortions.
The Church allows for possible exceptions for its members when:
– Pregnancy results from rape or incest, or
– A competent physician determines that the life or health of the mother is in serious jeopardy, or
– A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.
The Church teaches its members that even these rare exceptions do not justify abortion automatically. Abortion is a most serious matter and should be considered only after the persons involved have consulted with their local church leaders and feel through personal prayer that their decision is correct.
The Church has not favored or opposed legislative proposals or public demonstrations concerning abortion.
I note the focus of directing the text to church member, not to the larger public. I also note that the Church does not advocate one way or the other regarding abortions by non-members.
With respect to the Church and abortion, what I have always found ironic is that it has not taken a position on when life begins. Many of us grew up believing that life begins at conception, a view that I still find compelling even as a post-TBM. But I can’t blame the Church for that view because they haven’t stated it. Many pro-life Church members seem to view abortion through this lense but it’s a leap they (and I previously) have made on their own.
This reminds me of Church members who defend the baker who doesn’t want to make a cake for a gay couple and who reference their religious beliefs as a defense of that discriminatory position. The Church isn’t asking anyone to treat gay people that way in that setting (I’m not trying to defend the Church on it’s LGBTQ position — which has shifted over the years without any revelation or scriptures to back it up, I’m simply pointing out that members get carried away).
@josh h
It surprises me that you grew up believing that, because my experience was different. I was explicitly taught by family and at church that life began at some point after conception when the spirit finally entered the body–but like you, would not be able to cite a specific reference (perhaps if young me had been more attentive to these things). I wonder what the breakdown would look lie if we surveyed current and former members?
agree, I did not grow up with the idea that life begins at conception – because I knew many women who had miscarriages or even stillbirths who weren’t sure if they’d get those babies in eternity.
Elisa-
Right
I had a stillbirth (at 26 wks of pregnancy) many years ago and consulted my local bishop (outside UT). He said it was up to us whether we wanted to name or bury the baby.
Many people traditionally believed that the spirit entered the body or life begins at quickening, or when the mother feels the baby move. I have always thought that, yes life begins at conception, but when does that glob of cells become a human being? Just like an egg is not a chicken, a tiny glob of cells isn’t a human. But then, I wouldn’t eat an egg that is a week from hatching because of the baby chicken inside. Then it is no longer just an egg. I had 4 miscarriages at about 8 weeks and there is no comparison to the death of one grandchild that was still born.
Anyway, I don’t think the proper question is “when does life begin.” The best way to explain why outlawing abortion is wrong is the same reason we cannot force one person to donate part of their liver (that grows back in a short time] to let another person live. We cannot force another person to even donate blood to save a person’s life. So why should the government be allowed to force a woman to turn over her body to save the life of another human. If abortion is outlawed, women will have less control over their body than a corps, because even dead people need to give permission to have any part of their body used by another. It is a woman’s control and ownership of her body that forced pregnancy takes away.
I really think the law needs to be controlled nationally because some states are drawing up laws to outlaw all abortion, even to save the mother’s life. Texas has already ruled that rape and incest are not grounds for abortion. I think the laws on this need to be universal across the states, because states are already passing laws that will punish women for crossing state lines.
The other huge problem with outlawing abortion is that in countries that have outlawed abortion, women have been put in prison for having a miscarriage. So, imagine the chaos when a woman miscarries and her neighbors turn her in so they can collect the bounty. There is no way to prove whether a miscarriage is spontaneous abortion or induced abortion. So, women get sent to prison over things they have no control over.
Sending reproductive rights back to state legislatures illustrates a danger to civil rights in general. As Anna mentions, some states will enact very strict anti-abortion laws. Other states will protect the right to abortion. Civil rights will be a patchwork.
You can see this being extended to all civil rights. The draft opinion contained language suggesting that only longstanding civil rights should be respected, and more recent civil rights don’t deserve to be protected at a constitutional level. If racial equality is given back to state legislatures, some states would pass laws disproportionately impacting people of color. States are already doing this with voting laws.
Civil rights MUST be a federal issue with federal protection.
Janey, serious question. How do you define civil rights? I don’t think it’s as easy as “something that I think is deeply, vitally important.” That’s kind of the whole point of the draft decision, as it lays out in mind-numbing detail the history of abortion. My very perfunctory Google search suggest that as of 1971, only five states and D.C. had elective abortion on demand (wish I could find the numbers for 1972), and statutory prohibition of abortion goes all the way back to 1821 in Connecticut and that prohibition widened as the 19th century progressed (there is dispute about whether American common law prior to passing of criminal statutes held abortion to be offense so I won’t go into it). Abortion thus was not something that was widely accepted in our history as a right that was only recently proscribed. Further, the draft opinion also points out the lack of any constitutional language to support the Roe decision (Roe didn’t even firmly point out which amendment to the Constitution gave rise to the right to abortion, maybe it’s the 14th, but maybe it’s the 9th, who knows?). At least with various anti-racial discrimination decisions, there is plenty of explicit constitutional language to support the jurisprudence (even if that language was ignored by courts and legislators for the better part of a century). I’m honestly pro-choice and would support an amendment (which will never happen until most of us on here are long gone) or federal legislation to protect that very difficult choice, but I also don’t believe that abortion is a constitutional right as the Constitution currently stands.
One thing we are seeing post draft leak is companies stating their benefits will include travel expenses related to a woman obtaining an abortion in another state. Some travel companies have stated that they will pay legal expenses for employees that give rides to women to other states to have an abortion.
Some attorneys general are saying they will not prosecute abortions (the women or doctors or facilities). That could leave some states with patchy availability.
This is leaving some Republican politicians backpedaling their stances, because the right for women’s autonomy is more popular than not. Perhaps trying to overturn Row v. Wade rallied up their voters, but catching the car they were chasing after may have unanticipated consequences.
@Not a Cougar, I define civil rights as the right to be given equal opportunities and equal protection under the law, regardless of race, religion, sexuality, or other personal characteristics. Civil rights are about equality. One thing we know for sure about the Constitution is that it was written in a world in which the definition of equality was very limited. Equality was for Protestant married men of European descent who owned property. Everyone else has had to fight like the dickens to claw equality out of the bigotry enshrined by the Founding Fathers. “All men are created equal” is a good ideal, but it’s taken huge amounts of work to bring that to fruition.
I had a law professor from Australia who told us that the reason Australia did not have a Bill of Rights is because the people did not want anyone to think that their rights were limited to what was listed in the document. I’ve seen a quote floating around, attributed to a delegate to the 1787 Constitution Convention from George, saying something like “If we list a set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no others.”
I’m not an originalist, meaning I don’t think the Founding Father’s intentions should control what we’re doing in 2022. Of course the Founding Fathers would be opposed to abortion – it was probably more likely to kill the mother than childbirth back in 1787. Perhaps those prohibitions you cite were based more on stopping quacks from peddling poison abortifacients that would kill the woman who took them (I’m guessing). I’m not sure how sacred people considered pregnancy back before modern medicine taught us so much about nutrition and cleanliness and other principles that have increased the percentage of healthy pregnancies and babies. God and Christianity certainly didn’t have any laws or revelations that helped pregnant women. Imagine the difference if all those rules in Leviticus set down rules like making sure pregnant women had good food, and that the midwife should wash her hands, and that babies should drink the colustrum (instead of being given to a wetnurse because people thought the colustrum wasn’t healthy).
So, to answer your question plainly: does the Constitution contain words guaranteeing a right to privacy or bodily autonomy? No, it doesn’t. It was written by men who considered black people and women to be property. Of course they didn’t include bodily autonomy. It took a 5-year war to add language about racial equality. Women finally got the vote after decades of work. It’s ridiculous the amount of pain and effort it takes to expand civil rights when civil rights should simply be granted to every human being. I don’t believe civil rights should be limited to the Bill of Rights, and for exactly the reasons given by the Georgian delegate and my law professor from Australia. Those aren’t the only rights people should have.
I am horrified at the idea that only longstanding rights should be granted to people. 1965 is when the Supreme Court said the states couldn’t prohibit the use of birth control. That’s only 7 years older than Roe. Imagine a world without birth control. I could go on and on, but this post is long enough. Suffice it to say that the argument that “it took decades and centuries for men to decide to bestow some equality on women, so it’s okay to take those rights away again” is a non-starter for me. The fact that women’s equality is NOT longstanding is a sign of prejudice and bigotry, not an indicator that those rights aren’t important.
That said, I think the “pursuit of happiness” language could be interpreted to include a right to bodily autonomy, as long as you don’t try to limit the interpretation to what the Founding Fathers were thinking. Because they sure weren’t thinking that women could control their own reproductive choices any more than they thought black people shouldn’t be slaves.
Janey, thank you for sharing your thoughts. We’re far apart in our thinking on textualism and originalism so I’ll leave well enough alone.
Not a Cougar, I appreciate your question and your civility about our difference of opinion.
I listened to a recent The Daily podcast about a post Roe world from a pro-life viewpoint. There were some positive findings, such as a group that aims to have a minimum of 5 pregnancy resource centers for every clinic that does abortions. Some such facilities help with childcare, so the resources don’t end at birth. One advocate who tries to provide information and links to resources says each woman should make her own choice, and while she wouldn’t personally drive a friend to get an abortion, she would be supportive afterwards.
A pro-life group in one state wants to not be aligned with Republicans, because many of each group’s goals are not in alignment.
Some pro-life groups strongly emphasize that laws their states pass are not punitive towards the women. For them, the doctors are the criminals.
One woman talked about her friend’s pregnancy, and that the child would be mixed race, which would leave them without family support.
By and large, though, is that the pro-life voices that were represented presented a simplified picture of pregnancy, they did not address the more difficult issues. They did not bring up instances where the mother’s life is at stake. They did not address the poverty that many women are in, and that by extension, they would be raising their child in poverty. That raising a child would greatly impair her ability to become financially stable. They did not talk about rape, incest, the toll pregnancy takes on a woman’s body, etc.
The New Yorker: What’s missing from Alito’s draft to revoke the right to abortion.
https://www.newyorker.com/news/daily-comment/whats-missing-from-the-drafted-decision-to-overturn-roe-v-wade
Colorado.edu: Greater access to birth control boosts high school graduation rates.
https://www.colorado.edu/today/2021/05/05/greater-access-birth-control-boosts-high-school-graduation-rates
Scientific American: Being denied an abortion has lasting impacts on health and finance.
https://www.scientificamerican.com/article/being-denied-an-abortion-has-lasting-impacts-on-health-and-finances/
Just a quick note to debunk the idea that abortion has always been illegal and was deemed dangerous by the Founding Fathers. It was not illegal, and abortifacients were regularly advertised in the newspapers. Until the “quickening,” which is around 20 weeks, when movement is first sensed by the mother, a fetus was not considered to be human life. Doubtless this was because of how common miscarriages were (and even now they are certainly not rare). These herbal remedies would cause a miscarriage. This was true among the Colonies as well. Abortion was simply not controversial at the time. https://www.cnn.com/2016/06/23/health/abortion-history-in-united-states/index.html
The exception to this is, of course, that enslaved people were not allowed to use these herbal remedies to restore menses because slave-owners wanted a larger workforce. Because enslaved people had no rights, no laws were necessary. They were in the complete control of slave-owners, and could be killed and punished directly for disobedience anyway, without government oversight. And of course, many slave-owners deliberately raped and impregnated enslaved women for this purpose. Only in the 1860s did some states introduce anti-abortion legislation. Now, why might that be? Perhaps because enslaved people were given freedom, and the only way to keep them available as cheap agricultural labor was to keep them in poverty and strip them of any control over their lives, even in the most intimate decisions.
Among the many reasons only a woman can decide, the Utah trigger law demonstrates another important reason: only the woman knows if she was raped or a victim of incest. Regulating this through a government agency like the police is incredibly problematic and puts the woman’s life at risk in other ways (domestic violence, loss of shelter and protection, loss of family support.) It’s almost like a bunch of men without an ounce of empathy for real human women devised these laws and refuse to see how they are destroying lives.