On June 13, just under two years after its landmark ruling overturning Roe v. Wade, the Supreme Court unanimously held that a group of pro-life doctors lacked standing to challenge the federal approval of and subsequent expansion of access to a drug used for abortions. While many commentators have cast this decision as a blow against the pro-life movement, the reality is more complicated. The court’s opinion, which is legally and constitutionally sound, should prod the pro-life movement to realize that it needs to convince fellow citizens to reject abortion as unjust. This will require much more than just amassing enough political or judicial leverage to make it illegal.
In the two years since Dobbs v. Jackson Women’s Health Organization, a dismaying reality has set in: Following two decades of declining numbers and a brief decline immediately following the decision, abortions are once again on the rise. Despite newly introduced almost-total bans on abortion procedures in 14 states, the nation saw an increase in reported abortions over the past three years of 10 percent; in the 36 states without bans, there was a reported increase of 25 percent, an unprecedented jump.
Nor have those 14 statewide abortion bans swayed the opinions of Americans on this neuralgic issue. Recent polls by the Pew Research Center show that more Americans than ever now think that abortion should be legal in most or all cases—63 percent, up four points since 2021. That percentage changes hardly a whit for American Catholics, whose opinions on abortion are all but a mirror of those of the larger population. And in cases where the question of legal abortion has been presented to the voting public on a statewide ballot, abortion rights advocates have triumphed every time—seven times in all since 2022.
The editors of America have long held that while abortion is a moral evil—the consistent teaching of the church since the time of the Apostles—the question of its legal status in the United States, under our Constitution, belongs properly to state legislatures. Moral opposition to abortion, founded in the recognition of our common humanity with the unborn, society’s obligation to protect the life of the innocent and Catholic social teaching, is what drives the church’s pro-life advocacy. But the reason Roe was wrongly decided—and ultimately overturned—was not because it was immoral but because it invented a right with no basis in the text of the Constitution and assigned a complex moral question on which Americans disagree passionately to judges unanswerable to voters.
In its recent unanimous decision, the Supreme Court demonstrated that, regardless of the political alliances and machinations that produced its current set of justices, it appears serious about getting out of the abortion business. The pro-life movement should welcome that restraint, which it spent almost 50 years advocating and organizing to achieve, even if it means that the road toward legislation protecting the unborn heads steeply uphill.
Unfortunately, the zeal by some legislators in the current political moment to ban abortion at all costs—in some cases without nuance or consideration for the hard cases that inevitably arise in any moral calculus—has galvanized opposition to restrictions on abortion as much or more than it has helped convince Americans to respect the lives of the unborn. Even as legislators in some states seek to eliminate abortion completely, others have reacted to Dobbs by making already permissive abortion policies even less restrictive.
Perhaps even more telling than this legislative dichotomy is the media landscape in which abortion regulation is discussed. While the vast majority of abortions in the United States occur during the first trimester and because women do not want to have or feel they could not support a child, public discussion of abortion legislation has been dominated by a focus on questions about the adequacy of legal exceptions protecting the life and health of women late in pregnancy (even to the point of such media coverage being bemoaned by some pro-choice activists). Another consistent theme has been the fears of medical practitioners in states where they say even managing a late-term miscarriage could potentially land them in legal trouble.
The public debate about abortion, it seems, has fallen into the category of issues described by the truism that “hard cases make bad law.” Pro-life advocates are often focused on minimizing the set of exceptions to abortion bans in those states where they can get laws passed rather than tackling the harder problem of how to convince voters—who keep rejecting restrictions on abortion at the ballot box—that abortion can be safely and justly regulated and limited at all.
It may seem that Catholics are required always to implement the most comprehensive restrictions on abortion, regardless of the practical likelihood that such laws will be passed or, if passed, be enforceable. But this conflates a question of moral truth (“Can abortion ever be justified?”) with one of prudential and practical reason (“What is the best way to limit the injustice of abortion in the United States in the 21st century?”).
No less a pro-life champion than Cardinal John O’Connor recognized that support for “imperfect legislation” could be a necessary component of pro-life advocacy (see Catholic New York, 6/14/90). It is certainly the case that any achievable legislative restriction on abortion will be imperfect, from a strict moral analysis, for the foreseeable future.
What is needed, far more than a perfect abortion law, is a clear focus on the moral failure of a society in which abortion rates are rising rather than falling, in which too many women feel afraid, unable or unwilling to carry pregnancies to term and welcome new life into the world. The pro-life movement should evaluate the laws it fights for on the basis of whether or not they help us have that conversation.
Six years ago, the longtime Catholic Worker and social justice activist Shelley Douglass wrote of her dream of a world where the mandates of justice would make both war and abortion unthinkable. The question of how to accomplish this was less a legal or moral one, she thought, than a spiritual one: What kind of world do we want? “It’s hard to imagine the kind of justice, economic justice and justice for women, that would have to exist for there really to be a world where abortion is unthinkable,” Ms. Douglass wrote. “Not illegal: unthinkable!”
Such a world would not see abortion as a right to be granted or withheld. It would be one where we do not bemoan the lack of elective abortion as an option but value the lack of it as a sign that no woman need choose it any longer.
