Responding to 16 pro-choice claims about Dobbs, the pro-life movement, and abortion bans

1. Abortion bans mean women won’t be able to get treatment for ectopic pregnancy.

There are currently no abortion laws that outlaw treatment of ectopic pregnancy. Quite the opposite, many state laws explicitly exempt treatment of ectopic pregnancy from their definitions of abortion. For example, last year’s Texas Heartbeat Law incorporated Texas’ Health & Safety Code 245.002, which states (emphasis added):

“Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

(A) save the life or preserve the health of an unborn child;

(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C) remove an ectopic pregnancy.

Sec. 245.002 DEFINITIONS, Health & Safety Code

Texas is not unique in this language. Daniel Gump has done excellent research on the laws state-by-state. Currently 22 states have legal language explaining treatment of ectopic pregnancies is not legally an abortion. Note, too, that many of the states that don’t have this specification are pro-choice states where elective abortion is legal anyway, and so concerns about how abortion bans would affect ectopic pregnancy don’t apply.

Some people concerned that new laws will ban treatment of ectopic pregnancy point to a recent controversy in Missouri in which news outlets claimed Missouri would outlaw such treatment. In fact Missouri was never outlawing treatment of ectopic pregnancy. The law in question was regarding shipping abortion pills into Missouri from other states, especially if someone with an undetected ectopic pregnancy ends up taking abortion pills. We go into great detail clarifying that particular law here: No, Missouri is not outlawing treatment for ectopic pregnancy.

2. Abortion bans mean women won’t be able to get treatment for miscarriages.

Medically, miscarriages are referred to as “spontaneous abortions.” And when a woman has a “missed” miscarriage (her body does not naturally pass the child’s remains), she may need the remains removed using medications or procedures/surgeries identical to those used for abortion. So a lot of people are worried legislation outlawing those medications and procedures or outlawing abortion will end up outlawing miscarriage management.

But medical definitions are not the same as legal ones, and most abortion legislation explicitly exempts miscarriage management from the legal definition of abortion. Again using last year’s Texas Heartbeat Law (emphasis added):

“Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

(A) save the life or preserve the health of an unborn child;

(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C) remove an ectopic pregnancy.

Sec. 245.002 DEFINITIONS, Health & Safety Code

Here is another national overview courtesy of Daniel Gump [Edit: Aug 2022 updated graphic]: 37 states explicitly explain that miscarriage management is not part of their legal definition of abortion, and many of the states that don’t specify are pro-choice, meaning elective abortion is legal and so there’s no reason to be concerned miscarriage management would not be.

[Read more – The phrase “spontaneous abortion” is not pro-choice propaganda.]

3. Abortion bans mean women will be prosecuted for miscarriage.

Miscarriage (naturally occurring pregnancy loss) is not being criminalized. See #2 above.

Some argue that while there may not be an intent to criminalize miscarriage, abortion bans will still have that effect, since miscarriage is physiologically indistinguishable from medication abortion. However an investigation would require some reason to believe the pregnancy loss was an abortion and not a miscarriage other than simply the fact of a pregnancy loss. Beyond that, abortion bans focus criminal penalties on abortion providers, not the women receiving abortions. So even if a woman’s miscarriage were mistaken for an illegal abortion, she still wouldn’t be prosecuted.

That said, rarely if ever have women been investigated only for miscarrying. If an investigation is involved at all, it’s typically either because authorities are looking into the miscarriage as it relates to some criminal activity unrelated to abortion (such as illicit drug use or a child left to die or killed after being born alive) or because the investigating body is wrong about their state’s own abortion laws. In the latter case, once attorneys get involved, they instruct law enforcement to drop the whole thing.

We saw this happen recently in Texas. Lizelle Herrera made national news when she was arrested for a self-induced abortion. However, under Texas’ Heartbeat Law, women are exempt from penalties for seeking or receiving abortion. Within a day of Herrera’s arrest, the District Attorney got involved and dismissed charges, explaining “In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.”

4. Abortion bans mean women won’t be able to get abortions when their lives are in danger.

Similar to #1 and #2 here, it is nearly universal that abortion laws include exceptions when her life is threatened. The exceptions (Oregon, Vermont, Washington DC) have some of the most permissive abortion laws in the country.

5. The Dobbs decision is a threat to contraception, gay marriage, and other rights found in the right to privacy.

The people worried about these issues are primarily focused on a quote from Thomas in his concurrence. Note that no other justices signed on to his concurrence, concurrences aren’t binding, and he was objecting to the methods by which past Courts came to their rulings (substantive due process), not the specific results themselves (such as expanding contraception use).

In the Opinion of the Court, which is binding, they repeatedly explicitly state that other rights grounded in the right to privacy (such as contraception and gay marriage) were completely different in kind from abortion (because they didn’t involve destroying fetal life) (emphasis added):

Roe‘s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for the United States 26 (citing Obergefell, 576 U.S. 644; Lawrence, 539 U.S. 558; Griswold, 381 U.S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U.S., at 852; see also Roe, 410 U.S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

Meanwhile, per Gallup, 70% of Americans support LGBT+ relationships and 90% support birth control, in sharp contrast with the controversial and intractable abortion debate.

There is neither major judicial inclination nor popular public support for going after contraception or gay marriage.

6. The Dobbs decision is judicial activism.

Dobbs ended the judicial activism of Roe. Roe v. Wade claimed a right to abortion in the Constitution despite failing to ground that claim in Constitutional text, history, or precedent. And Roe did not simply state that women have a right to abortion; it went as far as to impose an elaborate trimester framework with different restrictions for each trimester, none of which it even attempted to explain based on the Constitution. Roe was a prime example of legislating from the bench, as even legal scholars who broadly support abortion access have attested to.

“[Roe] is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court-it won’t; and not because it conflicts with either my idea of progress or what the evidence suggest is society’s-it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade“

Dobbs did not impose any particular legal regime regarding abortion on the states. States like Colorado and New Mexico, which allow elective abortion at any stage of pregnancy, are still able to keep their uniquely permissive abortion laws. Dobbs made no argument about the nature of fetal life, bodily rights, or other topics prominent in the abortion debate. Instead, Dobbs simply said Roe was a terrible decision from a Constitutional law perspective. Dobbs is the opposite of judicial activism.

7. The Dobbs decision is an example of theocracy and Christian fascism.

As explained in #6 above, Dobbs is not imposing any particular worldview on anyone, other than the view that Supreme Court decisions should be based on reasonable interpretations of the Constitution. Dobbs doesn’t endorse any particular view about the nature of fetal life, the purpose of motherhood, or any other value-subjective issues related to abortion. It is Roe that imposed a specific moral view–namely, that fetal life is of so little importance that states are not allowed to meaningfully restrict abortion in the first 6 months of pregnancy. Roe inserted the Supreme Court into the moral and philosophical abortion debate. Dobbs took the Court back out of it.

Some people lamenting the rise of theocracy aren’t referring to the specifics of the Dobbs decision itself, but to the idea that the American pro-life movement is a religious movement made up of people who want to impose a Christian worldview on everyone else. As an anti-abortion atheist, I very much disagree. The fact is that abortion kills humans, i.e. human organisms in the earliest stages of our life cycle. This is not a religious view; it is a fact of biology. A person does not need to be religious to oppose killing humans, including prenatal humans. We view abortion as a human rights violation, and religious freedom doesn’t justify human rights violations.

[Read more – If SCOTUS wants to stay out of religious debates, it should overturn Roe v. Wade]

[Read more – Statistics demonstrating you don’t have to be religious to be pro-life]

[Read more – We Asked, You Answered: Why Atheists Care About Preborn Lives]

8. The Dobbs decision puts the U.S. out of step with other first world countries.

Roe put the U.S. out of step with other first world countries. We are one of only seven countries to allow elective abortion after 20 weeks (approximately 5 months) of pregnancy. Roe made it impossible for states to impose restrictions near the end of the first trimester, which would be similar to those in much of the western world. Dobbs undoes the extremism of Roe without substituting any particular legal regime in its place. Dobbs doesn’t ban abortion across the country; it only returns the issues to each state to let them decide.

Some states will (and already have) passed total bans on abortion from conception onward. This makes them more restrictive than most of the West (with notable exceptions such as Poland and Malta). At the same time, some states have and will continue to allow abortion at any point in pregnancy, making them less restrictive than most of the West and the world. So, bizarrely, the U.S. will be out of step with other first world countries in that we will be both more permissive and more restrictive.

9. A strong majority of Americans supported Roe v. Wade.

Poll results vary and contradict depending on the specific questions, but the emerging picture is that many Americans did not understand what Roe allowed. It’s true that most Americans said they didn’t want to see Roe overturned, but it’s also true most supported abortion restrictions that Roe made impossible. For example, 65% of Americans said abortion should be illegal in most or all cases once the woman enters her 2nd trimester (4-6 months), but Roe didn’t allow states to significantly restrict abortion until approximately the 6 month mark. FiveThirtyEight summarizes these contradictions here.

[Read more – “The people want Roe to stay”]

10. A strong majority of Americans are pro-choice.

Polls asking people whether they are “pro-life” or “pro-choice” are less than helpful, because Americans have varying understanding of these terms. Some people think “pro-choice” means you support legal abortion at any stage of pregnancy for any reason. Some think “pro-life” means you oppose abortion in all situations from conception on. So if a person thinks abortion should be legal in cases of rape or to save the mother’s life, but not otherwise, where does she fit in?

Per Gallup, only about half of people who call themselves “pro-choice” say abortion should be legal under all circumstances, and only a third of people who call themselves “pro-life” say abortion should be illegal in all circumstances. Instead, 41% of pro-choice people and 59% of pro-life people think abortion should be legal “under certain” circumstances.

If we conceptualize pro-choice people as those who think abortion should be legal all or most of the time and pro-life people as those who think abortion should be illegal all or most of the time, we find that the nation has been pretty evenly split on the topic, consistently, for decades.

Since 1994, Gallup has polled Americans asking “Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances?” If they respond “only under certain circumstances,” Gallup then asks “Do you think abortion should be legal in most circumstances or only in a few circumstances?”

On average, from 1994 through 2022, 57% of people chose “legal only in a few” or “illegal in all” circumstances compared to 40% who chose “legal under most” or “legal under any” circumstances. Gallup has polled on this question 44 times in 28 years, and in 43 of those instances more people chose the restrictive take (legal in few/illegal in all) than the permissive one (legal under most/any).

The only exception was the most recent instance, when Gallup polled from May 2 – 22 of this year (2022). Recall that the Dobbs draft leaked on May 3, and panicked media coverage ensued. It’s too early to know for sure, but it’s probable that this outlier data (first instance in 28 years of polling that the pro-choice view outnumbers the pro-life one) is the result of short term polling variation due to the media coverage. Research has found similar phenomenon for other topics. We’ll have to wait and see if the reversal of views holds as the country adjusts to a new legal status quo.

Either way, at most, a person could argue that Americans have long been split on abortion and may just now be starting to trend in a more pro-choice direction. Historically it has not been the case that even a majority, much less a strong majority, of Americans have thought abortion should generally be legal.

11. Abortion bans are about men making laws to control women’s bodies.

If this were true you would expect to see a pretty strong correlation between gender and views on abortion, but there is not. Some examples:

Women would be expected from an interest-group perspective to be more likely than men to favor legal abortion. However, the research on abortion attitudes fails to support this expectation, finding instead that women are no more likely than men to favor legal abortion. Recent reviews underscore this null result, noting that “a large literature on attitudes toward abortion shows that gender is not a predictor of them” and that “the bulk of the literature appears skeptical about gender differences.”

Gender and Abortion Attitudes: Religiosity as a Suppressor Variable

NPR explains Republican women are more likely than Republican men to identify as “pro-life,” oppose insurance coverage of abortion procedures, and oppose laws allowing abortion at any point in pregnancy in cases of rape. “It’s a reminder that Republican women, in many ways, are the backbone of the movement opposing abortion rights.”

Slate explains women are more likely than men to support funding for Planned Parenthood if it goes to birth control or STD testing/treatment, but women are just as likely as men to oppose funding for abortion or even for organizations that provide abortion referrals.

Vox explains how there are significant gender divides on issues of economics and national security, but not regarding abortion. Even internationally, most countries don’t see statistically significant gender divides on abortion.

And Washington Post reviews the many ways women lead the fight to restrict abortion (interest group leaders proposing model legislation, legislators introducing abortion restrictions bills at the state level, judges voting to uphold restrictions).

12. Abortion bans will result in more unwanted children (children in foster care/children being abused).

Several points here:

• The myth of a large increase in unwanted children directly contradicts the myth that abortion restrictions don’t decrease abortions.
• Abortion restrictions correlate with lower pregnancy rates. (See research here.)
• The vast majority of women denied abortion raise and love their children. (Related research here.)
• Children placed for adoption aren’t unwanted.
• Children in foster care aren’t unwanted.

Read all the details of the above points here: Abortion bans don’t lead to a surplus of unwanted children.

Additionally, people who grew up in foster care or with abuse or other hardships don’t necessarily agree it would have been preferable for them to have been aborted. Read some of their testimonies here: They can hear you.

13. Abortion bans will upend women’s lives.

There’s truth to this. Pregnancy and raising children upend people’s lives, and it’s better for people to have children when they feel ready than be caught unprepared.

But keep in mind abortion doesn’t prevent children from coming into existence; it destroys children who already exist. Once a woman is pregnant, the options aren’t (a) have children before you’re ready or (b) have children once you’re prepared; instead the options are now (a) have this child before you’re ready or (b) destroy this child.

Of course most pro-choice people won’t agree with the above description, because in most instances different views on abortion stem from different views about fetal life (i.e. whether early embryos count as “children”).

But setting that debate aside, research suggests when women are denied abortion, they are resilient. The Turnaway Study compares women who were able to obtain abortions to women who showed up at clinics but were denied abortions (were turned away). News outlets regularly cover the study’s findings about how women turned away have worse financial outcomes than women who received abortions. What journalists almost never mention, however, is that the same study found that 96% of women who were denied abortion stated five years later that they no longer wish they’d received one. Read details here.

If a woman with worse financial outcomes says she doesn’t wish she’d aborted her child, it’s questionable for others to assert on her behalf she would have been better off aborting. Financial metrics are important, but they aren’t the only relevant factors when assessing our quality of life. Our children will certainly be another major factor.

14. Abortion bans don’t decrease abortions.

Decades of research finds that abortion restrictions significantly decrease abortion – and not just legal abortion, but total abortions (accounting for legal and illegal abortions). We’ve compiled links to many studies here.

Some people will cite international comparisons of abortion laws and rates that seem to conclude the legal status of abortion doesn’t affect its frequency. But these comparisons typically don’t account for highly varying unintended pregnancy rates. When you control for pregnancy rate, it becomes clear that the percentage of pregnancies aborted is higher in countries with permissive abortion laws.

[Read more – Abortion laws decrease abortion rates internationally, but high unintended pregnancy rates can mask this effect]

[Read more – Stop Saying That Making Abortion Illegal Won’t Stop People From Having Them (authored by a pro-choice researcher)]

15. Contraception decreases abortions more than laws do.

People making this claim usually assume that abortion laws have little or no effect on abortion rates, but that is inaccurate (see #14). Some will cite one or two studies suggesting contraception dramatically lowers pregnancy rates, but said studies don’t address whether contraception has a greater effect on abortion rates than the law does. I’ve seen only a few studies comparing the effects of contraception to the effects of abortion access (see “Which decreases abortion rates more: contraception access or abortion restrictions?“) These studies found that changes in abortion laws had a larger effect on birth rates than did changes in access to the pill. Still, the studies were looking at data from years and even decades past, and it’s not clear how well the results would replicate today.

Another complicating factor is that abortion laws are correlated with higher contraception use. For example:

• “Similarly, women in states characterized by high abortion hostility (i.e., states with four or more types of restrictive policies in place) were more likely to use highly effective [contraceptive] methods than were women in states with less hostility.” State Abortion Context and U.S. Women’s Contraceptive Choices, 1995–2010
• “Our findings reveal that restrictions on abortion funding have a significant and positive impact on a woman’s decision to use the pill.” The Role of Restrictive Abortion Legislation in Explaining Variation in Oral Contraceptive Use
• “Fewer abortion providers increase the likelihood of women using the pill.” Utilization of oral contraception: The impact of direct and indirect restrictions on access to abortion
• “We find restrictions on abortion availability (through abortion legislation mandating parental consent or notification) induce women to utilize birth control to avoid unwanted pregnancies, while pro-choice sentiments in the legislature may have the opposite effect.” Variation in Pill Use: Do Abortion Laws Matter?

Secular Pro-Life is pro-contraception, but there is a lot of evidence to show abortion laws decrease abortion rates, and it is not at all clear that contraception has a greater effect than the law does.

16. You’re not pro-life, just pro-birth.

This accusation is typically a shorthand way of saying people against abortion don’t care what happens to women or children after the child is born. But there is plenty of evidence to the contrary.

There are countless pro-life organizations offering help. Groups have focused variously on diaper drives, initiatives to offer resources to pregnant college students, and legislation advocating for child support and enhanced protection for pregnant workers. There are thousands of pregnancy resource centers nationwide that provide maternity and baby clothes, diapers, wipes, baby wash, strollers, bouncy seats, infant toys, parenting classes, and referrals for housing, employment resources, and educational, financial, and social assistance. If you’re interested in working with pro-life groups who offer and advocate for material support, we especially like New Wave Feminists, Abide Women’s Health, and Let Them Live.

Apart from formal organizations, pro-life individuals offer help too. Here’s a long list of examples ranging everywhere from funding anti-poverty work to fostering and adopting children.

Read more details under #7 here: 7 things pro-lifers wish our pro-choice friends understood about us

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