Did The Justices Lie about Roe vs. Wade And Precedents?

Obviously, the internet is full of multiples lines of argument regarding the Supreme Court’s Dobbs vs. Jackson decision and all the cascading effects thereof. I want to focus on just two claims I have heard much too often:

1. The Supreme Court Justices who overturned Roe and Casey lied to the Senate during their confirmation hearings by saying they held Roe and Casey to be “precedents” or “settled law.”

2. Supreme Court decisions are sacred and overturning Supreme Court decisions is dangerous and rare.

“THE JUSTICES LIED.”

First, no they didn’t. Go read the transcripts or watch the videos of the confirmations for Justices Gorsuch, Kavanaugh, and Barrett. They indicated that Roe and Casey were indeed precedents and settled law. They affirmed the legal doctrine of stare decisis (that, as a rule, Supreme Court decisions should be affirmed). They never claimed the doctrine of stare decisis was absolute and that no Supreme Court decision could be overturned, however.

Second, affirming that something is settled law right now does not indicate that it will stay settled law forever. The 48th footnote in the Dobbs Majority Opinion cites dozens of examples. That brings me to my second point.

“OVERTURNING PREVIOUS CASES IS DANGEROUS.”

This claim can be made only out of dishonesty or ignorance. I like to assume the best of people, so I will assume it’s just ignorance.

Plessy vs. Ferguson established the “separate but equal” doctrine on which our immoral, government-enforced ethnic segregation rested. Fifty-eight years later, Brown vs. the Board of Education discarded Plessy — in part because Plessy was wrong from the start.

Baker vs. Nelson (I would argue accurately) held that marriage was reserved for one man and one woman. Obergefell vs. Hodges overturned Baker and made homosexual marriage the ruling regime in the US.

Bowers vs. Hardwick held that governments could outlaw sodomy and prosecute its practitioners. Lawrence vs. Texas struck down the core holding of Bowers.

Many of these people are lying to you.

No one is a stare decisis absolutist. Do you think the people screeching about Roe’s demise bemoaned the overturning of Plessy, Brown, and Lawrence? Of course not.

The people making this point don’t even actually believe what they’re saying.

Many of them want other cases regarding gun rights and religious freedom overturned right now. They care nothing for stare decisis in those areas.

CONCLUSION

The internet is full of lies, manipulations, and terrible arguments right now. Don’t be taken in by the ones that say these Justices lied or that this action of overturning a landmark decision is rare or radical.

Answering the Worst Arguments After the Supreme Court Leak Regarding Roe vs. Wade

The reaction to the leak of a Supreme Court Draft Opinion that would overturn Roe vs. Wade has ranged from elation to hysteria and has produced takes and opinions that have ranged from measured to unhinged meltdowns full of falsehood.

I have a great deal of interest in diminishing the cultural temperature, so that cooler heads can prevail. To that end, I am going to respond to — I hope humbly — to some of the rage, anger, and error that the reaction has produced.

“Other rights like interracial marriage are now in peril!”

Some folks have posited that the reasoning in the Dobbs opinion (that overturns Roe) would lead to the Court overturning cases on interracial marriage or even integration of schools.

To keep the temperature low, I will not speculate on the motives of the people who have injected those fears or possibilities into the national conversation. These hypotheticals, though, are not rooted in fact.

Justice Alito, who authored the leaked opinion, is careful to specify the reasoning by which and for which Roe would be overturned. On pages 9, 10, 45, and 51 of the Opinion, Alito specifies that Roe’s reasoning was rooted in a Court-manufactured “right to privacy.” Roe concocted that right from pieces of the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

Alito did NOT use this reasoning:
1. Abortion is not mentioned in the Constitution or its Amendments.
2. The 10th Amendment reserves power to the States when a matter is not mentioned in the Constitution or its Amendments.
3. Therefore, Roe is invalid because it gives power to the federal government instead of the States.

That’s the reasoning that could be used to overturn school integration or interracial marriage.

Alito’s opinion primarily argues that Roe’s reasoning was specious from the start, so the issue is returned to the States.

“A conservative Supreme Court is FORCING its abortion policy on the rest the Country!”

Some people have an honest misunderstanding of what would happen if Roe is overturned. Some others might be pushing this line in an effort to motivate people with fear.

This notion isn’t true at all. Each State will now get to make its own abortion policy. The Supreme Court has returned the power to the people. This decision actually WEAKENS the Court and STRENGTHENS the people and their representatives.

About 35% of the US Population will be living in States is virtually no abortion restrictions. Another 30% or so will live in States adjacent to the abortion-friendly States. In relation population a relatively small number of Americans will live in States that use this new freedom to heavily restrict abortion.

“Abortion is popular with close to 80% of the Country!”

Several leftist politicians and media figures have been arguing that there is popular consensus in the US in favor of abortion. Importantly, that does not matter in the slightest. Courts are designed to rule dispassionately on laws. They are specifically not to consider public opinion.

This point is even more incorrect than it is irrelevant, though.

Wide swaths of the country — data suggests around 70% — do NOT want to see abortion banned outright. Once you scratch the surface of that data point, however, you find a country that mostly looks like this:"
—Large approval of abortion for any reason in the first trimester
—Large approval of BANNING abortion (with exceptions) in the third trimester
—A smaller mushy middle that can’t decide for what reasons and at what point in the second trimester to cut abortion off.

When emotions cool and people realize that abortion is still going to largely be available, we’re going to find that the average American position on abortion is actually quite complicated.

"This decision is anti-democracy. Presidents who won with a minority of the popular vote nominated these judges.”

This has been one of the silliest arguments I have heard.
First, the most anti-democracy outcome is one where unelected judges make policy. Roe vs. Wade is a Court usurping the people and, by fiat, creating policy — the job of the people’s representatives.
This ruling RETURNS power to the democratic system by allowing voters to influence the outcome of abortion policy.

It takes a dim mind to argue that getting to VOTE in reference to a policy is LESS democratic than Courts ruling on it.

Further, we specifically have a republic. Democracy is a terrible, chaotic system of governance, and we are not a democracy. If people object to our system of government, I invite them to start gathering a movement for Constitutional Amendments.

“If you really cared about babies, you would support all of my preferred welfare programs.”

I find this one both uninformed and insulting. It’s more important that it’s wrong.

I have seen people arguing that unless you are for full-on socialism, you don’t really care about children.

This argument starts to feel like this: “Unless you give me everything, pay for all my expenses, and never make me responsible for a single expense, I’m killing my kid.” It’s a perverse hostage situation sort of argument.

It is totally consistent to hold these positions simultaneously:
—Stop killing pre-born humans
—I am not responsible for the financial support of every child

At the same time, for pro-life people like me, I urge you to generosity for Crisis Pregnancy Centers and ministries that help those in need. While that private charity is good and virtuous, the argument that unwillingness to create giant programs at the federal level equates to not caring about children is immature, fallacious, and slanderous.

FINAL THOUGHTS

This topic brings out the worst in people. Patience is key. I hope you’ll join me by calmly, humbly speaking truth to the lies that are causing so much rage.

Episode 106: A Civil Discussion on Abortion, Guns, and Much More

Episode 68: An Unbeatable Abortion Argument? // Problems in Single-Payer Britain// Talking Taxes