Fifty years after its Roe vs. Wade ruling, abortion remains one of the most hotly-debated issues in American politics. In fact, that was one reason five U.S. Supreme Court justices gave for overturning the ruling despite the principle of stare decisis: Abortion is hardly a settled issue after all these years.
The core question of the abortion debate — at what point during a pregnancy does “life” emerge for the purposes of the law and public interest– has no definitive answer. So it is not surprising people debating it make claims that must be taken on faith. (In some cases, literally.)
But there are discernable facts in the debate over the court’s ruling as well. Unfortunately, some opponents of the decision to dump Roe have been making claims that are simply factually untrue. Here are three that have been frequently repeated in the media and online since the 5-4 decision was released.
The Supreme Court’s decision is “an assault on democracy.”
“This is not just a crisis of Roe, this is a crisis of our democracy,” said Rep. Alexandria Ocasio-Cortez (D-N.Y.). The Washington Post’s headline reads, “Scaling back abortion access is consistent with declining democracy.” And across Twitter, the phrases “ban abortion” and “outlaw abortion” are in frequent use.
The Supreme Court didn’t “ban” anything. It didn’t make abortion legal or illegal. Instead, as the court said, “the authority to regulate abortion is returned to the people and their elected representatives.”
Supporters of Roe may not want the people to vote on abortion laws, but it is wildly inaccurate to say that letting the democratic process work is a threat to democracy.
The head of the Democratic National Committee, Jaime Harrison, went so far as to describe the ruling as a form of “tyranny.”
“This illegitimate Supreme Court filled with political extremists just struck a blow to American freedom,” Harrison tweeted. “Each of us must end this tyranny on our rights!”
Allowing people to vote and then enacting the will of the people is not often referred to as “tyranny.”
And then there was this tweet from Rep. Chris Pappas, which inspired a flurry of Twitter mockery.
“We cannot let the Supreme Court have the last word on this issue. It falls on all of us to ensure that reproductive rights continue in this country.”
Yes, critics noted, that was exactly what Justice Alito said, too.
Justices Gorsuch, Kavanaugh, and Barrett lied about upholding Roe.
During their confirmation hearings, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett testified under rules established in 1993 by then-Sen. Joe Biden, who chaired the confirmation of far-left Supreme Court nominee Ruth Bader Ginsburg. She was known for being very smart, and very far to the left in her political views. Republicans planned to ask her specific questions about her specific views on specific legal issues. But Biden set the rules — Ginsberg was free not to answer, and she didn’t.
She was confirmed in a 93-3 vote and the tradition has continued ever since.
And so when asked pointed questions about their views on Roe, on precedents, on the made-up-for-the-hearings “super-precedents” concept, the recent justices gave vague answers confirming that they respected precedent and stare decisis. But they avoided pledging to uphold the 1973 ruling.
Ocasio-Cortez and others have suggested the justices should be charged with perjury, or even impeached and removed from the bench, for (allegedly) misleading senators. But even liberal media outlets like The Washington Post acknowledge they gave answers that were careful, not false.
When Feinstein asked him what he meant by “settled law” and whether he believed Roe to be correct law, Kavanaugh said he believed it was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the notion that precedents should not be overturned without strong reason.
There are some false claims circulating about Barrett’s testimony before the Senate. They are based on carefully selected quotes from a conversation regarding the “super-precedent” concept, alleging she offered that special protection to Roe.
Barrett defined “super-precedents” as “cases that are so well-settled that no political actors and no people seriously push for their overruling.” She then added: And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.” [emphasis added]
Ironically, sending Roe back to the states may actually end the dishonest dance Supreme Court nominees have been forced into over the past 30 years.
The Court is coming after gay marriage and birth control next.
Just an hour after the court’s ruling, Speaker Nancy Pelosi told America the court wasn’t stopping there. “I always have said the termination of a pregnancy is just their opening act. It’s just their front game,” Pelosi said. She listed contraception, in vitro fertilization, and family planning as all in danger due to the Dobbs ruling.
That claim is different from the others in that it’s based on a kernel of truth: Justice Thomas did mention these cases in his concurring opinion:
“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergfell,” Thomas wrote.
But the keywords in Thomas’s opinion aren’t the case names, but “substantive due process.” It is a principle used by liberal majorities in these cases, and even many liberal attorneys agree is a questionable legal theory at best. Critics of the court’s ruling say if the five judges agree with Thomas about “substantive due process,” why wouldn’t they go back and toss out these other cases, too?
Except, as attorney and legal analyst David French at The Dispatch notes:
For those concerned about other substantive due process precedents (Obergefell, for example), consider:
Alito explicitly distinguishes Dobbs from those cases.
Kavanaugh says Dobbs does not cast doubt on those precedents.
Thomas wrote alone.
In fact, the majority opinion — which Thomas signed off on — explicitly says their ruling does not address the birth control or same-sex marriage cases. “[W]e 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.”
And Kavanaugh’s concurring opinion said it even more loudly: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” [emphasis in original]
Meanwhile, no other judge signed off on Thomas’ opinion.
It’s true there’s nothing stopping these judges from ruling however they want on any case that comes before them. But that raises the other reason this claim is fundamentally false: Who is going to bring that case for the Supreme Court to hear?
Unlike abortion, which has been the subject of legislation and lawsuits for decades, is there even a single state where legislators are trying to criminalize condoms or birth control pills? Is there a national push to end same-sex marriage?
However, the example that reveals the fundamental dishonesty of this line of attacks comes from popular cable news guest and former acting U.S. Solicitor General under Obama, Neal Katyal:
“Wonder if Loving v Virginia is next on the list of cases for Justice Thomas to overrule,” he tweeted.
Loving was the case that banned states from making interracial marriage illegal. Katyal is suggesting Justice Thomas might try to get rid of that protection.
Justice Thomas’ wife Ginni is White.