The Most Damaging (and/or Dumbest) Things People Are Saying, Post-Roe
Dobbs' Reversal of Roe v. Wade Has Spawned Unsurprisingly Terrible Takes
TL:DR Top-line Points - Some of the worst examples of post-Roe rhetoric:
“The Supreme Court outlawed abortion.”
“Several members of the Court committed perjury during their confirmation hearings and should now be impeached.”
“Dobbs marks the first time that a constitutional right has been taken away.”
“The Court is illegitimate.”
“The United States is now a backwards theocracy.”
“Guns have more rights than women do.”
“Kids who have hard lives are better off dead.”
“Senator John Cornyn is a racist who wants to revive ‘separate but equal.’”
“Dobbs is an attack on democracy.”
“Violence against the Court is now justified.”
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As I predicted, the end of Roe v. Wade was a virtual starter’s pistol on a race to see who could provide the most inflammatory or damaging or simply historically illiterate responses to Dobbs.
Here’s a sampling of some of the worst:
1. “The Supreme Court banned abortion.”
One would think that even The New York Times—and even writing about abortion—wouldn’t go so far as to intentionally misstate Dobbs in such a counterfactual way. But that’s what happened when Carl Hulse said, “Senate Republicans did not have to take the politically risky step of banning abortions; the court [sic] took care of the issue for them.”
Dobbs does not ban abortion, just like a case holding that there is no fundamental constitutional right to public education does not ban public education.
This is an obvious point to any competent first-year student at an accredited law school.
I do not believe Hulse is a fool. I believe he is seeing how much he can blur the line between straight news reporting and advocacy, including intentionally misstating facts, before someone tells him to stop.
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2. The recent additions to the Court committed perjury during their confirmation hearings and should be impeached.
This inane argument claims that, by saying Roe was “settled law,” voting to overturn Roe constitutes lying under oath. In fact, veritable fountain of wisdom Rep. Alexandria Ocasio-Cortez has said that Congress should consider impeaching those members of the Dobbs majority who made such statements during their confirmation hearings.
There are numerous problems with this argument, but, to name just two: First, such a practice would create a horrible precedent, by which no Supreme Court justice could ever deviate from anything he said during his confirmation hearings. Suddenly, those remarks would become more important than actual opinions.
Secondly, critics are actively misrepresenting what the justices said. As National Review’s Dan McLaughlin points out, the claims from which the calls for impeachment spring aren’t even accurate. And, as Jonathan Turley highlights, the then-nominees mostly stated truisms about Roe being the law of the land and said nothing that could constitute “perjury.”
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3. “The Dobbs decision is the first time in the history of the Court when a constitutional right has been taken away.”
This oft-repeated line coming largely from Democratic officials and media ignoramuses side-steps two basic facts.
First, Roe is rather unique in its bizarre, almost legislative approach. While there have been other cases that fall under the heading of “activist,” Roe was singular in its broad scope and specificity—both of which were unmoored to any textual provision.
Creating a trimester framework and associated restrictions connected to each, Justice Blackmun and the majority didn’t merely create a new “right:” they did so in a way so unconnected to what the document actually requires that they had to cite an infamous “penumbra” of rights to justify it.
This is a point I make often: even if Roe were about a far less sensitive subject (e.g. land use), the outlandish structure of the reasoning would make the case incredibly vulnerable to reversal. In fact, it is only the sensitive nature of the topic that likely preserved such obviously defective caselaw for so long.
Thus, Dobbs addressed a unique problem. Rather than being a case that was simply wrongly decided (there have been plenty of those over the decades), Roe was a case that was so special in its wrongness that any appropriate response would likewise be necessarily and appropriately unusual.
But all of that is rather beside the point. The other truth is that the Court determines the parameters of rights all the time. This practice sometimes involves the retraction of the extent or exercise of certain rights. This is certainly not unique. What makes it seem unique is the whole-cloth nature of the abortion “right” that I just referenced.
However, there are numerous cases that involve restrictions on rights we previously believed existed—and I would disagree with many of those cases, to be clear. This is the very nature of constitutional interpretation. It is simply the fact that abortion is not actually part of the Constitution that meant that the “floor” for Dobbs was zero.
As a final note, most of the people complaining about this being “the first time a right has been taken away” (which, again, is incorrect) would be cheering if the Court overturned the incorporated individual right to bear arms from Heller, or the broader rights of corporate and organizational speech from Citizens United.
They don’t care about “rights.”
They care about abortion.
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4. “The Court is illegitimate.”
We’ve already seen this from many prominent Democratic members of Congress, most of whom want to pursue an ultimately fruitless attempt to expand the Court. These folks will continue to undermine our dwindling faith in institutions by pressing a simple, unstated premise: If the Court creates a ruling that produces a significantly negative and intense emotional response among progressives, that decision lacks legitimacy (see also #9 below).
They’ll also connect this absurd idea to other concepts in their platform. For example, they’ll say George W. Bush appointees are illegitimate because he wasn’t actually elected president in 2000. They’ll say Justice Gorsuch is illegitimate because Mitch McConnell “stole” the seat that rightfully belonged to Merrick Garland. They’ll say Brett Kavanaugh is illegitimate because he’s obviously a “rapist.”
They’ll likewise tout the fact that Trump and Bush ascended to the presidency once each after losing the popular vote, which, since Dems won that, should be the only way we pick our presidents (until Dems lose one and win the Electoral College, at which point they will predictably flip their support).
All of this is nonsense. The Supreme Court deserves our respect far more than the leaders of the elected branches. And it is incredibly dangerous to believe that government is only legitimate when it acts exactly as we personally believe it should.
But Elizabeth Warren et al couldn’t care less. For all of their talk about “extremism” and “dangerous rhetoric” on the part of Republicans, they will use every opportunity to tell their supporters that they need to resort to methods that go beyond elections.
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5. “The United States is a backward theocracy, unlike more ‘evolved’ countries.”
Another common sentiment among America-hating progressives is the usual lament about how inferior we are when compared to far wiser, more evolved nations. As suggested by the meme above, they often implicitly or explicitly point to Europe as superior to we backwards Americans.
As has become evident to anyone who has taken even ten minutes to research the issue, even many of the “restrictive” measures proposed by Republican governors like Virginia’s Glenn Youngkin are more lenient than the majority of European jurisdictions. In fact, despite the message of the aforementioned meme, France restricts abortions after just 14 weeks.
At the same time, there is the usual shrieking on the left about how all of this is the result of a fundamentalist Christian fascism, as if the only reason for opposing Roe (or abortion) could be right-wing religious fervor.
Like the other points on this list, this argument is wrong and, perhaps, disingenuous. It becomes much easier to galvanize support for a political cause if you can successfully argue that the ones responsible for a disfavored policy are a small, strange group of “others” who wield disproportionate power.
Here’s a tip for the Ana Kasparians of the world: even people who are pro-choice can think that Roe was wrongly decided. And even people who are not religious at all can have legitimate concerns about abortion, since they understand the scientific realities of what abortion actually means after a certain point of gestation. It is nothing short of a killing. And you don’t have to believe in Christ, or God, to see that.
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6. “Guns have more rights than women do.”
Many of our leading intellectuals (see above) have made this point. It, again, fails on multiple fronts, all of which are clear to anyone who isn’t lying.
For one thing, the “right” at issue in the question of abortion is also quite plainly a question of what rights the unborn child has. If it were purely a question of the rights of the mother, then, presumably, control over any other number of areas of bodily autonomy would be withheld from women: tattoos, cosmetic surgery, tubular ligation, and so on.
Yet, none of those are at issue. Why? Because settling the question of abortion is a matter of balancing rights. And, yes, that’s a difficult issue—which is one reason why it should be solved legislatively. The point is that it is a balance between the mother’s right to control her life, and the unborn child’s right to live in the first place.
For most Americans, this means that, before the fetus can feel pain or achieve viability, the mother’s needs prevail. However, after 12-15 weeks or so, the vast majority acknowledges the (dare I say) scientific reality that the creature growing inside the mother is a life unto itself.
Again, these are hard questions, but they are ones that may be resolved properly at the state level, since the Constitution does not mention abortion.
On the other hand, “guns” have no rights. Gun owners do, but not the guns themselves. Yet again, this point is obvious to all non-liars.
Moreover, guns are specifically addressed by the Constitution. We can debate exactly what the Constitution permits or does not permit, but no one can state that firearms are absent from the Constitution in the same way that abortion quite literally is.
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7. “Kids who have hard lives are better off dead.”
It is incredible to watch the arrogance with which people casually express the belief that so many children are better off dead. A hard life is worse than no life at all, they claim.
There’s not much more to say about this one, other than I sincerely hope that Democrats take this messaging to heart when they consider their campaign arguments for November.
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8. “Senator John Cornyn is a racist who wants to revive ‘separate but equal.’”
This week, in response to a tweet by former President Obama lamenting the loss of Roe, despite it representing 50 years of precedent, Senator Cornyn challenged that argument by pointing out that Plessy was the law of the land for decades—before Brown correctly overruled it.
For those who don’t understand analogies, which apparently includes many Democrats, Plessy : Roe :: Brown : Dobbs. Since we know that Cornyn is praising Dobbs, we can deduce that he also likes Brown and does NOT like Plessy.
This is very simple. Yet, numerous critics raised this as proof of Cornyn’s “racism,” suggesting that he is in favor of reviving a doctrine of “separate but equal.”
These people are imbeciles or hopeless liars and can safely be ignored.
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9. “The Supreme Court’s Dobbs decision is an attack on democracy.”
The refrain of “[outcome I don’t like] destroys democracy” became much more common during the Trump Era, as critics would conflate legitimate concerns over norms and processes with the much larger universe of “I don’t like this thing.”
Now, we’ve reached a point in the post-Trump era where anything that clashes with progressive sensibilities become an “assault on democracy.”
Naturally, in the case of Dobbs, this is especially laughable, since the case returns the issue of abortion to the democratic process—the opposite of what Roe did a half-century ago.
But let’s not let facts get in the way of indignant anger.
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10. Violence against the Supreme Court is now justified.
Calls for bombing and assassination have come as quickly as I expected.
Even limiting the field to verified accounts produces numerous examples of “blue-check” threats and veiled (or not-so-veiled) encouragement of violence.
Needless to say, much of this sort of talk comes from people who have claimed repeatedly that the January 6th riot was a stain on our democracy. Yet, the overturn of Roe instantly makes hypocrites of them all, as they’re more-than-willing to entertain the idea of vandalism, violence, or even murder in service of their political ends.
While we can laugh off many of the takes on this list, or, at worst, cite them as additional reasons not to support certain politicians, this last category is different—and often criminal.
The cumulative effect of this rhetoric is not only to further destabilize our society, but also to put lives in danger. Real, specific lives, not hypothetical ones.
Most instructive is the fact that even “verified” voices feel no reluctance to advocate for death and destruction. As we learned in the summer of 2020, violence and incitement in service of progressive ends will be treated much differently than that in service of non-progressive ends.
Media outlets will rationalize or ignore destruction. Big tech companies will enforce rules unevenly, so that those who advocate for unlawful behavior are not punished, so long as the violence or harassment targets the “right” people.
I close with this warning, then: Watch carefully at what happens next. See who covers it or discusses it, note how they characterize it, and also mark well whether or not they excuse or justify it.
Then watch, read, spend, and vote accordingly.