Last week, Politico broke a story about a leaked draft of the Supreme Court’s official opinion pertaining to the latest legal battle over abortion. In the draft, authored by Justice Samuel Alito, the Court plans to overturn Roe v. Wade and Planned Parenthood v. Casey. Liberals lost their collective minds at the potential policy change they see as an essential freedom for American women.
I didn’t anticipate writing about abortion again, and I didn’t want to write about it again. But abortion is a secondary issue here. The leak from the Supreme Court firmly demonstrates that when the liberal segment of America feels enough pressure, they succumb to the same politics of fear as conservatives. The Court will not release an official decision for another month, but the left has already proven they’re just as bad as the right.
Since the leak this past week, liberals rallied their troops to frighten Americans who may be on the fence about abortion or ones who worry about a change to the status quo.
Napoleon Bonaparte was reputed to have once said that only two things motivate people: interest and fear. Liberals are allowing their own fear to drive the response to the impending decision. This fear leads to bad arguments about an important policy.
First, what will this decision mean?
Americans have already misunderstood the decision in the Dobbs v. Jackson Women’s Health. This ruling will not ban abortions in the United States. The ruling will maintain that a woman does not have the right to an abortion, which means the state can make laws about abortions if it chooses.
For liberal states, nothing will change. Places like California, New York, or Massachusetts will not change laws to stop abortions. If anything, they will pass legislation which will strengthen a woman’s ability to have an abortion. Conservative states, typically Southern or Midwestern states, will most likely ban abortion or place severe restrictions on the procedure.
The Court’s decision, and Alito’s opinion, reflect the notion that issues like this must be decided in political arenas, and not in the courts. Alito did not comment on the inherent nature of abortion being good or bad. His opinion reads,
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decided this case accordingly.
… Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.
In essence, if citizens feel strongly that their state should or should not allow abortions, then they should elect representatives who will carry out those wishes. Elections have consequences.
I understand Alito’s premise. But, I’m also certain states will not appropriately consider how to legislate the issue of abortion. Blanket bans on an activity rarely produce the best results. States will fail to consider important exceptions, or how to appropriate define an abortion.
Would we expect a pregnant woman with a stillborn baby to carry it to term? Currently, the procedure often used to remove a stillborn child is the same procedure used for an elective abortion.
Additionally, will states appropriately consider what to do in cases such as 11 year old ‘Lucia’ from Argentina? She became pregnant after being raped. Because of Argentina’s strict abortion laws, abortion was not an option. However, her tiny 11 year old body was not physically capable of delivering the child without killing her.
I’m not arguing for abortion. But I am claiming that state legislatures have a history of short-sightedness and never consider serious moral dilemmas like an innocent 11 year old girl. States will mess this up because many politicians care more about scoring a ‘win’ rather than careful policy.
Regardless of how poorly a person might think of the federal government, I can promise state legislatures are worse. They lack the nuance, thoughtfulness, or foresight to consider the deeper implications of their actions.
The Logical Fallacies
The position of pro-choice supporters lacks any real focus on the legal argument Alito espouses. Instead, they are appealing to logical fallacies to stir up enough fear in the public to foment change. Let’s take a look:
1. The Slippery Slope. The pending ruling in Dobbs v. Jackson Women’s Health will eviscerate the precedent set in Roe v. Wade. Justice Alito, writing for the Court, stated,
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some right that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “simplicity in the concept of ordered liberty.”
This statement immediately sent liberals into a frenzy about other freedoms which may be at stake under the premise Alito suggests. The left suggests that conservatives will overrule Court precedents on birth control, interracial marriage, and same-sex marriage next. These concerns are the politics of fear, designed to frighten. The ‘domino theory’ suggested here is no more than a slippery slope. Because A happened, B and C and D must follow.
The left now submits to the same fear the right uses on their supporters. Just substitute the issue of abortion with gun rights. Conservatives see any restriction on guns as a terrible violation which can only lead to an outright ban. The logic was flawed then, and it’s flawed now.
America is not on a path to The Handmaid’s Tale.
2. Appeal to Fear. The left was not short on its dire warnings. If Roe is overturned, back alley abortions will happen. Nevermind that the number of abortions which resulted in deaths were grossly overstated.
Warnings come from all corners of the left that dangerous abortions will happen everywhere, and women won’t be able to have ‘safe’ abortions. Women will have less rights than previous generations.
Considering how conservatives reacted to mask mandates and vaccines, I don’t see too much difference in the approach of the left. This appeal to fear also seems intertwined with the slippery slope concept.
3. Ad hominem attacks. The critique of the Court’s decision utilizes another form of logical fallacy — personalattacks rather than attacking Alito’s opinion.
• Pod Save America, a nationally known podcast which casts itself as “A no bullshit conversation about politics,” seemed to have plenty of just that in their discussion of the Dobbs case.
• A new podcast (from Pod Save America’s parent company), Strict Scrutiny, posted an ‘emergency’ episode this week which enjoyed dunking on Alito, but lacked a focus on the substance of the ruling. Emergency, eh?
• John Harris, in Politico, wrote a piece that Alito wanted a ‘brawl’ and he was going to get one. Harris summed up Alito’s 98 page opinion in three words: “Bring it on.”
• Harvard Professor Emeritus Laurence Tribe has a Twitter feed that reads like a dystopian novel unto itself on this issue. He, and others who defend Roe, couch their language on abortion in personifications and euphemisms. “The death of Roe …” or “women’s reproductive rights.”
• Vanity Fair ran a piece two days ago with the subtitle, “The Supreme Court justice wants to turn the U.S. into a dystopian hellscape where women are property—and he’s not stopping there.” Nothing subtle about what you’re reading there. The article noted, “the most sickening part is that the conservative justice clearly doesn’t give a shit that obliterating the landmark ruling will ruin countless lives. In fact, one might argue, that’s all part of the plan. And if you needed further proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control …”
Yes, because, there exists a secret cabal of men who, in Mr. Burns like fashion, secretly plot to relegate women to an inferior status forever.
4. The Straw Man. Critics of Alito hyper focused on a few phrases out of 98 pages of legal writing with hundreds of cited court cases and references to American and English law. Alito referenced 17th century English jurist Matthew Hale on the issue of abortion, and critics pounced on this due to Hale’s position that marital rape was justifiable and endorsed execution of witches. In the 21st century, no one supports these two positions. Liberals who disagree with Alito’s opinion find this as a means of dismissing him and the decision.
This is an illogical position for critics. Because Hale supported an idea we now find implausible does not mean his entire body of work lacks value.
The American legal system does not deny the notion of judicial review because John Marshall owned slaves. Nor should it. No one denies the greatness of Thomas Jefferson’s writing in the Declaration of Independencebecause of his personal flaws.
In Alito’s opinion, he also used the phrase “domestic supply of infants” — in a footnote from a study of the Center for Disease Control. Yes, it’s a weird phrase. But it’s not his phrase.
Take a moment and look at any social media website and search Samuel Alito’s name. Then, determine if Americans are giving his legal opinions a critique, or him.
5. A bandwagon effect. The pro-choice crowd also points to the fact that a significant number of Americans support keeping Roe as the standard in abortion. Most polls bear out that fact, and in most states. Yet, this is never a good reason or a logical reason to make a policy decision.
The nation’s governmental structure gives the judicial branch more autonomy so they can make difficult decisions without outside influences such as the public’s pressure. Since when does the nation expect the Court to make decisions predicated upon popular opinion? Many of the seminal cases in American judicial history broke with desires of the American public.
Brown v. Board of Education, the Court crushed ‘separate but equal’ at a time when American society didn’t approve of the change. The Court understood it needed to make the right decision, and not the popular one.
In Engle v. Vitale, Court ruled that prayer by public school officials violated the Establishment Clause. Definitely not a popular decision in the 1960s.
The Court ruled citizens had a right to engage in interracial marriages in Loving v. Virginia. Americans did not widely support this change in the 1960s.
These represent just a few of any number of cases where the unpopular view triumphed because of the Court’s insulation from public opinion. Judicial independence matters. The Court makes decisions and Americans must learn to live with these or find other ways to establish policy changes.
The Hypocrisy of the Left
The current ideological makeup of the nine members on the Court has six conservatives justices and three liberals. Liberals are seething over the fact that former President Donald Trump appointed three conservative justices to the Court during one term. This is an unusual number for a president to appoint, particularly in one term. (I know, I know, Merrick Garland should be on the Court.)
After the leaked opinion, liberals are calling for the Supreme Court to expand the number of justices, presumably to ‘pack’ the Court in their favor. Magically, liberals also favor limiting the terms of justices.
Oh, they want to take their ball and go home now that they lost? Policy changes are difficult in the United States, but an attempt to rig the process only damages an already wounded republic.
The left feels slighted because they see this case as decided by ideology rather than the law. However, that logic cuts two ways. While five conservative justices did vote to overturn Roe, the three liberal justices voted to keep it (conservative leaning Chief Justice John Roberts will likely side with the three liberals). Can we not equally critique the three liberal justices who voted to maintain precedent because of their ideology?
For several years, the Court was divided — four liberals and four conservatives, with former Justice Anthony Kennedy known as a ‘swing vote.’ This is not norm in the Court’s history and Americans must reconcile themselves to this fact.
I guarantee that if liberals held the majority on the Court, both ideological sides would take exactly the opposite side of where they stand now. Regardless, I don’t want to hear the complaints about how conservatives on the Court are voting in a particular way based on ideology. Liberals do the same thing when it comes to controversial issues such as abortion.
A Big Change in Freedom?
Alito’s ruling does not effectively answer some particularly important questions. The quote at the beginning of this post discussed Alito’s reference to the 14th Amendment’s Due Process Clause. This portion of the Constitution guarantees that no state can deny a person “life, liberty, or property without due process of law.”
To imprison you, execute you, or deprive a person of personal property, the state must provide every step of the legal process given to an accused person (known as procedural due process). The state, in making any laws, cannot create any statutes without a good reason (known as substantive due process). If the state creates a law takes away a ‘liberty,’ then it must demonstrate a good reason for the action.
Liberal activists believe the state has no interest in depriving a woman of the liberty to have an abortion because this is a privacy issue regarding a woman’s bodily autonomy. What reason does the state have to legislate otherwise? States argue their interest includes preserving human life, that of the unborn child.
Alito’s ruling creates another hurdle for a citizen. To qualify as ‘liberty’ under the 14th Amendment, a freedom would have to be “deeply rooted in this Nation’s history and tradition.” The implication here is that the freedoms a citizen has or does not have depend upon whether or not that action has a long history in the United States.
Unless a citizen could demonstrate that their action has been a deeply rooted in American history, then it would not qualify as a liberty and be subject to regulation by the state. This could have far reaching implications in terms of how much the government could intrude upon the lives of citizens.
Reading Alito’s opinion, he does raise the issues one would expect from an ‘originalist’ or strict constructionist. Abortion isn’t mentioned in the Constitution. The individuals who wrote the 14th Amendment’s Due Process Clause did not intend it be used in this way. The people and their elected representatives should decide this issue.
It has a firm legal foundation. Now, Americans now must decide what to do in light of this decision.
A Final Word
Regardless of one’s stance on abortion, I hope Americans do not give in to the politics of fear. The Republican Party surrendered to fear years ago and that’s one reason I despise it. The GOP’s constant fear mongering and the use of its de facto mouthpiece known as Fox News to spread it have caused indescribable damage to the American Experiment. Instead of offering a better way, Democrats are leaning in to the same approach. It uses logical fallacies and hypocrisy as tools to make us believe a dystopian world rapidly closes in.