Reverse the Lie that is Roe v. Wade


Roe v. Wade was, and is, a lie. 

The deadly decision, built on a historical fiction that abortion is rooted in the American founding and culture, has ushered in an abortion law framework rivaled only by dictatorships. Roe stands atop a mound of falsehoods about abortion and the objects of abortion—preborn children themselves.

Now nearly fifty years ago, the Supreme Court of the United States established a constitutional right to kill a disfavored class of human beings in this nation. On December 1, the justices have the opportunity to revisit that mistake, begin to extinguish the supposed “right” to abortion, and prepare to bury Roe deep beneath the asphalt of disgrace.

The case at hand is Dobbs v. Jackson Women’s Health Organization. Dobbs v. Jackson concerns a Mississippi law that prohibits abortion after fifteen weeks of pregnancy.

As written, Mississippi’s law is an overt violation of Supreme Court precedent on abortion. The verdict, then, appears straightforward: enjoin enforcement of Mississippi’s Pro-Life law and swiftly move to the next case. 

Blocking Pro-Life laws has generally been the modus operandi of the federal judiciary for decades. Courts have oft-repeated the pattern: political branches of state government enact abortion restrictions that the public supports, the abortion industry sues before the law ever goes into effect, and a pro-abort judge eagerly rejects the law and sends the state back to the drawing board (our cloaked autocrats are quite predictable).

There are many reasons to suspect this pattern won’t change. Some may say, understandably, that “we’ve watched this story and identified this pattern, the ending is dispiriting but scarcely difficult to forecast.” This atmosphere of dejected cynicism may lead one to conclude that the decision in Dobbs is preordained.

But the justices on this Supreme Court may be unlike those who came before them, meaning Dobbs may finally demolish Roe, unlike those cases that came before. 

Constructing a Supreme Court philosophically and courageously willing to reverse Roe—and a legal environment wherein reversal is possible—is a project that demands decades of laborious movement-building.

Such an undertaking requires institutions dedicated to conservative legal thought, where budding jurists are educated in a constrained constitutional vision that emphasizes the text. This enterprise also needs organizations committed to designing and enacting laws that test the moral and legal foundations of Roe, supplying potential avenues for returning to the decision.

These efforts collide on December 1 when the Supreme Court hears oral argument in Dobbs. Six justices who almost certainly believe Roe is an abomination will be explicitly asked to dispense with Roe and the harebrained rationale for a constitutional right to abortion.

And Roe is truly an abomination.

Justice Harry Blackmun, the architect of Roe, was a one-man show. He conducted his own research, supplied his own history, and defined the contours of a right hitherto unknown.

Blackmun concluded that abortion had long occupied an accepted place in the American heritage, from the founding to reconstruction, during which states passed abortion restrictions solely out of concern for the pregnant mother’s safety.

Furnishing this history of abortion was Cyril Means Jr., a pro-abortion activist, historian, and … a liar.

Means’ research, which provided the backbone of Blackmun’s historical analysis in Roe, was nothing but a fabrication. From the founding, and certainly during the ratification of the Fourteenth Amendment, most states restricted abortion, not just out of concern for the pregnant mother’s health but also out of profound respect for preborn Life. Yet, the fictional narrative Means concocted and Blackmun parroted is critical to Roe’s legitimacy.

Because the United States Constitution makes no mention of abortion, Blackmun had to find some basis for endorsing a constitutional right to abortion. So he turned to Means’ false history, arguing abortion has been an implied common law right through much of America’s existence. Therefore, Blackmun maintained, the Fourteenth Amendment protects abortion as a pretextual fundamental right under the broader umbrella of “privacy.”

Without the support of this historical lie—that abortion was common and legal in Colonial America and beyond—Roe cannot survive.

What has survived until now is positively radical. Roe, with the assistance of a companion case, Doe v. Bolton, nullified every state abortion restriction, shielding the practice from the democratic process. No state law categorically banning abortions has withstood a substantive federal court challenge.

Our abortion law now looks more like North Korea than France. In this department, America is exceptional, but in the condemnable, North Korean kind of way. Do Americans know just how extreme Roe is? Just how fanatical our abortion industry is? Some do, but, sadly, most don’t. 

Lies sustain Roe because lies sustain abortion. Terms like “reproductive rights” and “health care” and “woman’s choice” are intentionally ambiguous and designed to euphemize an otherwise objectionable act.

No one opposes an appendectomy or a colonoscopy, which is why the abortion industry and their puppets sanitize abortion. Who would oppose simple surgery? Never mind that the objects of this surgery, the “clumps of cells” and “contents of the uterus,” are human beings, persons very much like you and me. Their lives are what is on the line in Dobbs.

So, what will the Supreme Court do? Three distinct possibilities come to mind: (1) Uphold the lower court ruling, keeping Mississippi’s fifteen-week ban from going into effect; (2) Modify the current standards for evaluating Pro-Life laws, but stop short of reversing Roe; or (3) Fully reverse Roe and return governance of abortion to the states. 

The first option, prohibiting Mississippi’s Pro-Life law from taking effect, is unlikely. Nothing compelled the Supreme Court to take the case, and the six justices who believe the earlier Court incorrectly decided Roe wouldn’t hear Dobbs only to further entrench Roe in our legal system. Mississippi’s law should survive its date with the Supreme Court.

Whether the Supreme Court will reverse Roe or not is more difficult to prophesize. Some legal commentators have recognized that upholding Mississippi’s law while not reversing Roe requires challenging calculus.

If the Supreme Court was to choose option two, the justices would have to craft a new standard for reviewing Pro-Life laws. Roe and Planned Parenthood v. Casey—which together constitute the judiciary’s primary abortion precedentsdo not comport with Mississippi’s fifteen-week ban. The six conservative-leaning justices cannot rubber-stamp the Mississippi law while applying Roe and Casey. They must formulate some new framework.

Any new framework either must be determinate (that is, specific) and untethered to other sources or ambiguous and more authoritative-sounding.

A determinate framework may choose a specific timeframe (e.g., 12-weeks) or a specific interest (e.g., fetal pain) and use that new timeframe or interest for evaluating Pro-Life laws. The problem with this route is that any determinative framework must be newly invented without a historical or textual basis. This framework will appear to be made up, mainly because such a framework would indeed be made up. 

The other potential path for option two would be to create a vague standard (e.g., a pregnant mother must have a reasonable opportunity to obtain an abortion). This standard would depart from Roe and Casey to a lesser degree, and the lack of specificity coheres with a supposed right not outlined in the Constitution. But here, the Supreme Court would invite more litigation testing the hazy contours of this new framework. And the last thing the Supreme Court wants is more entanglement in such a polarized issue. 

Furthermore, the popular assumption is that the conservative-leaning justices want to eventually reverse Roe, even if not in Dobbs. Choosing option two would require these justices, or at least some of them, to fashion a new standard, only to overrule themselves years later. That doesn’t make much sense. Few people like to admit they were wrong, and fewer people would purposely write something they know is wrong only to correct themselves later.

This leaves option three. The conservative-leaning justices want to allow Mississippi to enforce the fifteen-week ban, but to do so without reversing Roe would entail some curious choices that they will undoubtedly later regret. So why not reverse Roe? Why not do what is morally and legally right when that choice is also logically right?

That answer probably concerns Chief Justice Roberts and his obsession with preserving the Supreme Court’s reputation as an apolitical branch.

The problem with Justice Robert’s premise, and perhaps those of Justices Brett Kavanaugh and Amy Coney Barrett, is that keeping the Court apolitical by arriving at political conclusions is self-defeating. If they were to refrain from reversing Roe only to appease the masses, they would transform the Court into the very thing they despise—an unneutral branch of government responsive to political pressure.

Legitimacy is found in doing what is right, not in what is popular.

Reversing Roe is the right thing to do—ethically, legally, socially, strategically, and even politically.

If the conservative-leaning justices want to rid the Supreme Court of abortion cases, then reversing Roe is the only reasonable outcome.

Roe is a lie, and confronting lies takes moral courage. On Wednesday, during oral argument, we’ll know whether the Supreme Court is ready to confront the lie that is Roe

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