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.
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 188.8.131.52). 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.
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.
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.