Will abortion become illegal in June?

Explaining the Dobbs Abortion Case and What It Means for Us

By the staff of the California Catholic Conference

What is the Dobbs Case?

The case of Dobbs v. Jackson Women’s Health Organization is before the U.S Supreme Court in its current term. A ruling is expected by the end of June by the latest and states are gearing up across the country to either enshrine abortion even more or to restrict it.

In California, the state legislature and Gov. Gavin Newsom are pushing through a slate of laws that are frightening in their scope.

So, what is the Dobbs case?

“Dobbs” represents the State of Mississippi because Thomas Dobbs is the head of the Mississippi Department of Health. The Jackson Women’s Health Organization is an abortion clinic in Mississippi opposing the State of Mississippi.

Back in 2018, the State of Mississippi passed the Gestational Age Act. This law prohibited abortion after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality.

Abortion supporters claim that this law violates the Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey. Together those Supreme Court decisions said it violated the US Constitution for any state to place an “undue burden” or a “substantial obstacle” in the way of a woman seeking an abortion during that period of time called “pre-viability,” up to 6 months of pregnancy as defined by the Court at the time of the decisions. (The Court used the information they had at the time. With advances in medicine since Roe and Casey, now many premature babies can survive, at earlier stages in pregnancy than when these caseswere decided.) 

On the other side, the State of Mississippi contends that “nothing in constitutional text, structure, history, or tradition supports a right to abortion.” In other words, it is arguing for outright reversal of Roe v. Wade, and the case that reaffirmed Roe, Planned Parenthood v. Casey.  Mississippi is asking the US Supreme Court to overturn, to set aside, its precedent set by earlier decisions. Technically, this is hard for the Court to do, but it has been done before and can be done again.

Mississippi argues that states should be free to regulate or even prohibit abortion if they have a “rational” reason for doing so and that Mississippi has several more-than-rational reasons: protecting the life of unborn human beings; protecting the medical profession from involvement in “barbaric” procedures; and protecting women’s health.

The U.S. Supreme Court has several options

In the middle is the US Supreme Court, and they could rule in several ways.

The Court can rule pre-viability prohibitions, like the one in the State of Mississippi, are unconstitutional. In this case, the Gestational Age Act would be struck down. Protections provided under the law would have to cease. 

The Court could accept the reasoning offered by the State of Mississippi and overturn Roe and Casey and uphold the Mississippi Gestational Age Act. This would be a pro-life ruling.

Or the Supreme Court could craft a ruling that takes some other, as yet unknown course and possibly leave the door open for another case in the future to challenge Roe and Casey. This kind of ruling could satisfy some pro-life demands, but not all pro-life demands.

Back to the Drawing Board

By taking on the Dobbs case, the current US Supreme Court is, in a sense, accepting the fact that, whatever good it meant to achieve, Roe and Casey simply has not been accepted by huge numbers of Americans over nearly 50 years, as nearly all other Supreme Court decisions have. It is time to “go back to the drawing board.”

Before getting to the questions of the impact of Dobbs, it’s important to correct some misconceptions and review some history.

First, a decision by the US Supreme Court on abortion in Mississippi will be applied to all other states across America. For example, in Roe, a decision to strike down a restriction on abortion in Texas was then applied to laws in all the other states. Roe and Casey put limits on what states could and could not do to regulate abortion and protect the unborn. Dobbs could undo, in whole or in part, the limits Roe and Casey put on states to regulate abortion and protect the unborn.

Second, an all-too common misconception goes if Roe made abortion legal in all 50 states, overturning Roe will make abortion illegal in all 50 states. This is not an accurate understanding of the situation. An important distinction is required. The Court did not rule on what was “legal” but rather what kind of law violated the US Constitution and could no longer be enforced and had to be changed according to the ruling of the Court. There is no foreseeable situation where abortion would become illegal in all 50 states.

Before Roe was decided in 1973, except for saving the life of the mother, 44 states prohibited abortion in all situations or nearly all situations. For example, before Roe, Louisiana and Texas banned abortion except to save the life of the mother. At the same time, New York State and Oregon allowed abortion in nearly all cases before viability of the unborn baby.

When the Court decided Roe, those 44 states had to end their prohibitions on abortion and allow abortion under more circumstances, under rules that had been set by the US Supreme Court in their decision.

And that brings us to why we need your help.

If pro-lifers had been silent, instead of so active and vocal over fifty years, the Dobbs case would never have happened. If you had been silent, abortion advocates would be in complete control of the Courts, of the legislatures and all but a few of the American people. Instead, they must now actually go into Court and be held to account and justify what cannot be justified. Now is the moment we have been waiting for.

We will be with you every step of the way providing accurate, up to date information on the situation as things evolve and ways you can use your power as a citizen and pro-life advocate to defend life.

We also must work to create a society where no mother feels pressured to have an abortion – where she has access to the material support, medical care, nutrition, housing, childcare, and a real caring environment which encourages her and allows her to choose life.

So get ready. Prepare to speak. Continue to speak. And stand with us as we continue to fight for the unborn and their mothers.

This is an abridged version of a document on the website of the California Catholic Conference.