Now that the Supreme Court has overturned Roe v. Wade, the abortion debate has shifted to state courts, state legislatures, and ballot initiatives, making voting paramount to the future of the pro-life movement.
This reality intensified this week as both sides experienced wins and losses. Here are the updates from this week on the nation’s abortion battle.
A lower state court judge had twice blocked Kentucky’s near total ban on abortion, but on Monday, a Kentucky appeals court reinstated the law on Monday.
In the immediate aftermath of the Dobbs decision overturning Roe, Judge Mitch Perry of the Jefferson County Circuit Court had issued an injunction against both the state’s “trigger law” banning abortion and another law banning abortion after six weeks.
Perry claimed that there was a “substantial likelihood” the laws violate the “rights to privacy and self-determination” protected by Kentucky’s constitution. In other words, Perry used the same reasoning the Supreme Court only weeks ago said was fallaciously used to invent a constitutional right to an abortion.
Perry also argued that the laws violate the Establishment Clause by adopting “a distinctly Christian and Catholic belief” that life begins at conception. He wrote:
“The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment. By taking this approach, the bans fail to account for the diverse religious views of many Kentuckians whose faith leads them to take very different views of when life begins. There is nothing in our laws or history that allows for such theocratic based policymaking.”
Perry’s claim fails to recognize that the view that life begins at conception is not simply a religious belief but is also held by many who are not Christian nor Catholic and base their view on science.
The state’s Attorney General Daniel Cameron has continued to fight for the laws, and appealed Perry’s injunction. In reinstating the laws, the state appellate court stated that even if they are being challenged in court, in Kentucky, “a statute carries with it the presumption of constitutionality.”
Kentucky’s abortion clinics have already appealed the decision.
In November, Kentucky voters will have a chance to decide on the issue with a ballot amendment referred to as the No Right to Abortion in Constitution Amendment. The proposed amendment reads, “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
In some states, such as Kansas and Florida, judges have “found” the right to an abortion in the state’s constitution in the same way as was found in Roe v. Wade. Proponents claim this amendment would stop judicial activism and allow people to make the decisions through their duly elected legislators. When judges find a right to an abortion in a state’s constitution, it severely restricts the legislature’s ability to pass any limits on abortion that won’t be struck down by the courts.
Kansas had its own ballot amendment on the constitutionality of a right to an abortion Tuesday night. The “Value Them Both” amendment would have rejected the premise that abortion is guaranteed by the state constitution and would have allowed legislators to pass laws restricting the practice. The amendment, however, was soundly defeated by a 20-point margin.
Despite being voted on during a primary, the vote received historic turnout. With more than 800,000 votes cast, the amendment drew close to the number of votes cast in the general elections in 2014 and 2018. The in-person early voting was 250 percent higher than the last primary midterm election in 2018.
Prognosticators are claiming this is a sign that Americans do not want abortion restricted and that Republicans will face a surge of angry voters across the country this November.
However, many observers noted the struggle that pro-life advocates had in getting their message out in the face of an abortion campaign that was massively funded and relied on deception to confuse and scare voters about what the amendment would immediately do. In explaining the outcome, as Lila Rose, founder of Live Action, tweeted: “Pro-aborts poured millions into a massive disinformation campaign in Kansas. Pro-abort media pulled heavily for them.”
Given that, Alexandra DeSanctis, a writer for National Review, cautioned the pro-life movement against viewing the Kansas loss as a bellwether. She explained, “This debate is in many ways a messaging battle, and we will be more successful in the long run if we continue to highlight the grotesque extremism of the other side than if we allow them to put us on defense.”
The Department of Justice (DOJ) has filed suit against the state of Idaho, claiming that the state’s ban on abortion violates the federal Emergency Medical Treatment and Labor Act (EMTLA). Idaho’s “trigger law” goes into effect this month.
Attorney General Merrick Garland said,
“In the days since the Dobbs decision, there have been widespread reports of delays and denials of treatment to pregnant women experiencing medical emergencies. Today, the Justice Department’s message is clear: It does not matter what state a hospital subject to EMTALA operates in. If a patient comes to the emergency room with a medical emergency jeopardizing the patients’ life or health, the hospital must provide the treatment necessary to stabilize that patient. This includes abortion when that is the necessary treatment.”
Garland claims that the Idaho law “threatens the health of women.”
White House Press Secretary Karine Jean-Pierre echoed that point, saying, “Idaho’s law and its treatment of women is devastating, it’s extreme, and it threatens lives, period. Federal law makes clear that doctors must provide women emergency medical care, including abortions services, to stabilize women facing health- and life-threatening conditions.”
However, Idaho’s law provides an exception for abortion if it is necessary to prevent the pregnant woman’s death, and even Garland has acknowledged that
Idaho Gov. Brad Little said, “Our nation’s highest court returned the issue of abortion to the states to regulate — end of story. The U.S. Justice Department’s interference with Idaho’s pro-life law is another example of Biden overreaching yet again while he continues to ignore issues that really should demand his attention — like crushing inflation and the open border with Mexico.”
The Idaho Supreme Court heard arguments yesterday regarding at least two Idaho abortion laws, including its trigger ban. Planned Parenthood and other plaintiffs have asked the court to issue a temporary injunction so the laws are blocked from going into effect while the cases go through judicial review.
President Joe Biden signed a second executive order on abortion yesterday. This one instructs the Department for Health and Human Services (HHS) to consider using Medicaid funds for women traveling across state lines to obtain an abortion. The president said this order was in response to “the health care crisis that has unfolded since the Supreme Court overturned Roe and that women are facing all across America.”
The order also instructs HHS to collect data on the impact of the Supreme Court’s ruling on maternal health.
The Biden administration has been determined to circumvent the ramifications of the Dobbs decision since its announcement last June. Without congressional movement, the executive branch is very limited in its impact on abortion nationally.
There is a new battleground in the fight over abortion. While state legislators, governors, and courts were always important, now that the Supreme Court has taken itself out of the way, they are of much greater importance. State courts, in particular, are inserting themselves in debate, and not necessarily in a good way. Already in too many cases, rogue judges who refuse to accept the Supreme Court’s Dobbs ruling are choosing to invent the right to an abortion in the same way the Supreme Court did nearly 50 years ago in the case of Roe v. Wade.
This encapsulates the need for pro-lifers to get out and vote. In some states, for example, judges are elected, meaning voters have direct control over who will be ruling in abortion cases. It is imperative that pro-life voters take time to learn about the judicial candidates and elect those who will hold to the Constitution. Other judges are appointed, which necessitates the need to vote for pro-life governors to appoint them and pro-life legislators to confirm them.
The defeat in Kansas has much to teach the pro-life movement. The left once again proved much more effective at messaging than conservatives. Abortion advocates portrayed the amendment as an attempt to push through an unpopular policy when few would be voting. They also falsely claimed that by adopting the amendment, abortion would be completely banned in the state, even in cases involving rape, incest, and the life of the mother.
Voters on both sides indicated they were very confused about the amendment and what it would or would not do. Pro-lifers cannot assume that all voters will understand legalese. If amendments focused on the constitutionality of abortion rights are to be the approach moving forward, as will be the case in Kentucky, pro-life advocates must be explicitly clear that the amendment will prevent judges from creating a right to an abortion — when it’s an issue reserved to the legislature and, ultimately, the people. Moreover, they must make it clear that while approving such an amendment doesn’t necessarily ban abortion, declining one will likely prevent any reasonable restrictions, even those allowed under Roe, from being left intact.
Pro-lifers wanted the issue of abortion returned to the states and to have a say. Well, they got both. The overturn of Roe was one of the greatest days in our nation’s history, but if Christians and those who oppose abortion don’t show up at the polls, we might end up a nation with far more permissive abortion laws than those allowed under the Court’s tragic decision.
Voting is an issue of stewardship. God has placed each American in this country with the right to self-governance. Each of us has a say in how our nation is governed, and it is not sufficient to simply say, “God is in control” and refuse to actively engage. In the parable of the talents, the workers who took what was given to them and put it to use were praised and rewarded, while the worker who buried it because he was afraid to take a risk was chastised. If we refuse to vote, and to educate ourselves on who and what to vote for, we are poor stewards of the gifts and talents that God has given us.
If pro-lifers are truly the minority, and the majority of the nation wants completely unrestricted abortion, then we face another call, and that is to educate. Abortion is murder. That isn’t a religious statement, it is a fact. A child in the womb is a human being, and abortion brutally kills that human being. Many say we should not expose abortion methods because they are gory and hard to look at. To that point, that’s exactly right. Abortion is gory, and everyone who believes they are for it needs to look at it and know exactly what is involved. If abortion is going to be defeated and ultimately banned every person in America needs to understand that a baby isn’t a clump of cells or a choice, that abortion isn’t a personal medical decision that is neat and painless but is, in fact, horrific, state-endorsed infanticide.
What’s more, Christians can no longer pretend that it is acceptable to be personally pro-life but publicly pro-choice. While our President may issue his executive orders, God has issued higher orders. Primarily, He has commanded, “You shall not murder.” But He has also told us to care for the “least of these,” and no one fits that description more than an innocent baby in the womb.
We are blessed in this country with the right to vote and the right to engage in our civic life. We cannot be derelict in our duty to use those rights. At the very least, we must all vote, and vote like someone’s life depends on it — because, in this case, it does.
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.