In what is being hailed as “the biggest case on abortion in 30 years,” the Supreme Court will hear arguments beginning in October 2021 with a ruling expected in June 2022. Pro-Life advocates hope for the 1973 ruling in Roe v. Wade, which made abortion legal nationwide up to the point of “viability,” will be overturned and such matters returned to the individual states. I discuss the somewhat more complicated findings in the Roe v. Wade decision in Chapter 4 of my book (see the My Book tab). Pro-Abortion factions did not want the Supreme Court to take the case and risk modification to various aspects of the Roe v. Wade decision, which Pro-Life factions argue are antiquated.

The Mississippi Gestation Age Act bans abortion after 15 weeks gestation “except in a medical emergency or in the case of a severe fetal abnormality” and does not allow exemptions for rape or incest as is common in many laws which regulate abortion. The law was challenged by the Jackson Women’s Health Organization and was blocked by the 5th US Circuit Court of Appeals. The Supreme Cort case is styled as Dobbs v. Jackson Women’s Health Organization.

Anti-abortion statutes began to appear on the United States in the 1820’s, first targeting abortifacients (poisons to induce abortion). After 1860, progressively stronger anti-abortion laws were passed in many states. Surgical abortion had a death rate of 30% and was rarely practiced until the late 1800’s with the advent of anesthesia and more sanitary practices. Thus, some regulation by the states was necessary.

Liberalization of abortion laws began in some states in the 1920’s, varying in their scope but generally centered around the issues of rape or incest or if the mother’s life or “health” were at risk.

Mississippi made abortion legal for rape in 1966, and this was extended to incest in 1972. In the 1973 decision in Roe v. Wade, the Supreme Court decided that a law forbidding abortion (except to save the life of the mother) was unconstitutional and that women had a “right” to an abortion. This required all of the states to come into compliance with the new standard.

However, a woman does not have an “absolute right” to an abortion. The government has compelling interests to protect the health of the mother and to protect the life of the fetus. Therefore, in the third trimester, when the fetus became “viable” the state could prohibit abortion except when necessary to protect the mother’s life or “health.” The issue of the mother’s “health” was decided in the companion case of Doe v. Bolton and was described so broadly as to permit abortion for almost any reason.

In 1982, Pennsylvania passed the Abortion Control Act and pushed against the Roe v Wade decision by requiring a waiting period and parental consent of a minor, while de facto asserting that the individual states have the right to regulate abortion differently. In 1992, the Supreme Court took up the case of Planned Parenthood v. Casey and largely reaffirmed Roe while also ruling that the states could regulate abortion in the first trimester to protect the woman’s health, and that advances in medical science could make a fetus “viable” before the third trimester.

The decision in Casey encouraged activists at the state level to lobby for restrictions on abortion. In 1982, Mississippi had 13 abortion clinics. By 1992, it had only 8 and, by 2006, only one remained open. In 2012, a total of 1100 statues were proposed in the 50 states and 135 became law in 36 states. That was the year that Mississippi tried, but failed, to pass a fetal heartbeat law. However, a law was passed to require doctors providing abortions to have hospital privileges to care for women with complications from their procedures. However, this was struck down by a federal court. In 2013, Mississippi passed a law regulating medication induced abortions.

Activists introduced legislation in 2015 and again in 2017 that would have banned abortion in almost all cases. Had it passed, the last remaining abortion clinic in Mississippi would have had to close. The legislature also tried, but again failed, to pass a fetal heartbeat law in 2017.

It was in 2018 that the Gestation Age Act was passed and became the center of the case which will now be decided by the Supreme Court.

In the meantime, in 2019 Mississippi finally passed a fetal heartbeat bill. However, it has been “temporarily” blocked by a federal court. There are similar laws in 5 other states which have been temporarily blocked by federal courts. Texas has just signed a fetal heartbeat bill into law which will take effect September 1, 2021. However, it will almost certainly be challenged. See my post on the unique aspects of this law which may allow its survival in court.

In 2020, Mississippi passed a law prohibiting abortion on the basis of the fetus’ race, gender, or genetic abnormality. The later exclusion primarily targets saving those with Down Syndrome.

Only 36% of adults in Mississippi believe abortion should be legal in all or most cases. It is on the basis of statistics like this and because of Pro-Life activism that so many states are pushing back against the ruling in Roe being applied to all states equally. Pro-Life activists believe that it is the circumstances in which women find themselves that make them desperate and susceptible to the argument that abortion is their only option.

To protect women from such exploitation and to protect the life of the unborn, state governments have developed many resources for pregnant women and disadvantaged families. Private pregnancy resource centers also offer material help as well as education and emotional support. In 2018, there were 2,527 pregnancy resource centers of one kind or another and 3.2 times as many such centers as abortion facilities. This amply demonstrates that there are vast resources available to women with an unwanted pregnancy, and abortion is not the only option for the most distressed woman.

In addition to the struggle over abortion among activists and legislators, the courts are quite uncertain how to rule on matters which conflict with the 10th Amendment to the constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” There is nothing in the constitution addressing the right to an abortion. Even the Court deciding Roe admitted that fact, but stated that a woman has a right to “privacy” in choosing whether to have an abortion. But, it is hotly debated whether abortion should be regulated at the state level or at the federal level.

For this reason, the huge amount of legislation introduced and passed into law in the last decade and often “temporarily” blocked by federal courts has produced a lot of tension, controversy, and aggravation. This needs to be resolved, and it is hoped by the Pro-Life faction that the Supreme Court will (at least in part) rule that the states can regulate abortion within their purview (in a limited manner) which meets the standards and needs of their communities.

However, beyond this case the political power structure and profit motivated abortion industry will still press on to offer abortion as a necessity and the first and best choice. The need for offering women education, alternatives, and help will continue to increase.

An Indiana school district suspended a teacher with paid administrative leave while under investigation after she invited a Right to Life representative to speak at a health class. She allegedly violated policies requiring notification of the school principal and parents.

The talk reportedly contained medical information on fetal development and how abortion terminated the growing fetus, and did not promote religious or moral views on the subject.

In his remarks May 12, Biden’s Secretary of State Antony Blinken has reaffirmed that “religious freedom is a human right,” but since his speech March 30 denigrating the Unalienable Rights Commission, he has been stating that religious freedom is not more important than other rights but is co-equal.

The Commission reinforced the importance of religious freedom, but the progressive agenda requires that religious freedom be submissive to the state so that abortion can be promoted and expanded as a “right” equal to all other human rights. Religious objection and dissent is problematic for supporters of this agenda. These qualifications placed on freedom of religion are very troublesome.

In his 2020 political campaign, Biden promised to sue the Little Sisters of the Poor and force them to comply with government policy on contraception and abortion to which they object on the basis of conscience and religious belief. The shift in language dealing with religious freedom is seen by some as laying the ground work for such additional legal action. For this purpose, the Little Sisters of the Poor must be portrayed as hiding behind religion in order to conceal their underlying bigotry.

There are often conflicts between our cherished rights which are codified in the constitution. For example, our right to freedom of speech is not protected if we yell fire in a public space. While all of our rights are valued individually, compromises must be made between the various rights under some circumstances.

By elevating abortion to a “right” equal to freedom of speech and freedom of religion, the ground is set for forcing people with religious beliefs that oppose abortion to compromise those beliefs. For example, laws may be passed restricting opponents of abortion under freedom of religion from attempting to restrict the “right” to an abortion…that could be a hate crime, similar to attacking a religion.

No one can predict where this could go. It could mean that other social issues could be declared a “right” and thus be protected from dissent by preventing the exercise of freedom of speech on penalty of law. Best not to go down that path.

The North Carolina Senate has passed a measure requiring doctors to provide the same care for a baby born alive following an attempted abortion that they would for any other child.

The democrat governor rejected a similar measure in 2019 and an attempt to override the veto failed. Observers think that this proposal will suffer a similar fate.

Tennessee has become the latest state to require that fetal remains from a surgical abortion be buried or cremated beginning July 1. Some 10 other Republican dominated states have similar laws.

The first state to pass such a law was Indiana. That law survived a challenge in court in 2019, and the Tennessee law is similar. Certain medical providers must dispose of the remains and pay the cost to do so.

The FDA under Biden has approved women to get the abortion pills through mail order pharmacies (domestic or foreign) without seeing a doctor or having a prescription, subject to the restrictions of individual states. This was prohibited by the FDA under Trump.

However, this ruling is only valid during the “COVID-19 health emergency” when women allegedly have little access to health care. It seems odd that the ruling would be released at this time when resources for health care are back to normal. Since it will have no impact on a woman’s ability to get the pills (unless she just wishes to skip the doctor visit), it seems to be just a political statement for the pro-abortion crowd.

The abortion pills have become so popular that 40% of abortions in the US are now done this way. That has obviously reduced the number of surgical abortions which otherwise have produced a huge income stream. Planned Parenthood, which does over 40% of abortions in the US, has a big business also in dispensing the abortion pills and performing associated medical studies and procedures.

Texas law has prohibited abortion after 20 weeks, but has now passed a fetal heartbeat law (discussed in another post dated May 19). But, current law also allows for abortion based on “diagnosis of a severe abnormality of a preborn child.”

Texas Senate Bill S.B. 1173 seeks to prohibit “discriminatory abortion” based on “physical disfigurement, scoliosis, dwarfism, Down Syndrome, albinism, amelia or any other type of physical, mental, or intellectual abnormality or disease.”

The bill was passed by the Senate but needs to pass the Texas House and be signed by the governor to become law. However, the state legislature adjourned May 31, 2021 and is convened in January of odd-numbered years for 140 days. It may be taken up again in January 2023.

With installation of Joe Biden and Kamala Harris, the federal government took a turn toward support for expansion of abortion nationally and internationally, subsidized by the taxpayers. Biden ran on a “Pro-Choice” platform and Harris is described as “fiercely Pro-Choice.”

In his campaign, Biden promised to repeal the Mexico City Policy, thus allowing non-government organizations in foreign countries to receive US funds to promote and profit from abortion.

He has also vowed to reverse Title X restrictions on promoting abortion and separating facilities and financial records for abortion and non-abortion services. This is clearly designed to repay and enrich Planned Parenthood which contributed much to his campaign and political party. Panned Parenthood quit seeing any Title X patients for any reason when they could not provide abortions, which is their big money maker.

With respect to health care, he has expressed a desire to ensure that the Affordable Care Act covers contraception and abortion. And, he would remove any exemptions for conscience or religious beliefs. This would put the Little Sisters of the Poor back in the sights of a hostile government machine determined to prevent their care for the elderly poor in the United States. Seemingly, he believes that this is the duty of the Federal Government and not charitable organizations, unless they promote contraception and abortion.

In addition, Biden supports repealing the Hyde Amendment, which has blocked public funding of abortion under Medicaid since 1977. The Hyde Amendment is not law, but is an Amendment to the federal budget which has to be approved again every year. It can be removed with approval of a new federal budget at any time.

As if not enough, Biden has pledged to do everything possible to prevent the individual states from enacting laws to restrict access to abortion. To do this, he plans to codify the supreme court ruling in Roe v. Wade, that is, to make it the law of the land. Until now, the supreme court has ruled that the individual states can regulate abortion (within limits). If unrestricted access to abortion was law passed by Congress, this ability for the states to set its own standards would be lost

The Biden presidency seems surely to be preparing to divide the American people and create acrimony, controversy, and both legal and political battles.

Donald Trump has been our most Pro-Life President. As soon as he was in office in January 2017 he reinstituted and expanded the “Mexico City Policy,” renaming it “Protecting Life in Global Health Assistance.”

In 1984, President Reagan announced at a meeting in Mexico City an expansion of the Foreign Assistance Act of 1961, which already prohibited use of Federal Funds in foreign countries to promote abortions or pay for abortions, also to prohibit non-governmental organizations (NGO) from providing information or counseling about abortion or lobbying for abortion.  This was much decried and became known as the “Mexico City Policy” and later the “Global Gag Rule.”

Trump expanded this policy by requiring foreign NGO’s who accept US government global family planning assistance to certify that they will not “perform or actively promote abortion as a method of family planning” using funds from any source, including non-US funds.

In June 2019, the Trump administration extended the policy for the first time to prohibit foreign NGO’s that accept US government funding from providing any financial support, using any source of funds (including non-US funds), for any purpose, to other foreign NGO’s that perform or actively promote abortion as a method of family planning.

In July 2018, the Trump administration proposed rule changes for the Title X Family Planning Program which provides reproductive healthcare for young low-income women. In 1988, the Reagan administration had issued regulations prohibiting entities accepting Title X funds from promoting abortion as a method of family planning, prohibiting referrals for abortion (while still allowing counseling about abortion), and requiring physical and financial separation of facilities providing Title X services from those facilities providing abortions. This became widely known as “the Title X Gag Rule” or “Domestic Gag Rule.”  It received much criticism and was challenged, but the Supreme Court agreed in 1991 that the regulations are lawful. However, they were never enforced.

However, US Law written by Congress had restricted Title X from being used to promote or pay for abortion from the beginning. Trump fought the issue through the courts and placed new rules in effect in July 2019. Not only must entities receiving funds not mention or provide counseling about abortion, but their facilities for providing Title X care must be separate from those providing abortion, and separate financial accounting is required.

Trump also made Pro-Life appointments to key positions including judges, signed an executive order that a child born alive during an abortion must be provided medical care, and supported the right of those providing medical care to refuse to provide contraception and abortion on the basis of conscience or religious belief.

With respect to the latter, Trump issued rules providing an unconditional religious exemption to mandates of the Affordable Care Act over which the Little Sisters of the Poor had been sued since 2014. The case went to the Supreme Court which decided July 8, 2020 that Trump did have the authority to provide the exemption. The Little Sisters of the Poor have consecrated themselves to providing care for the elderly poor.

The trouble with all of the action taken by Trump is that Congress would not act to put anything into law. An incoming president who favors abortion can reverse all that Trump did to promote respect for life and human dignity.