{"id":1533296,"date":"2022-06-30T08:05:27","date_gmt":"2022-06-30T12:05:27","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1533296"},"modified":"2022-06-30T08:05:47","modified_gmt":"2022-06-30T12:05:47","slug":"dobbs-shows-roe-and-casey-were-wrong-on-the-law-and-on-the-science","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/dobbs-shows-roe-and-casey-were-wrong-on-the-law-and-on-the-science\/","title":{"rendered":"Dobbs Shows Roe And Casey Were Wrong On The Law And On The Science"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">28<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fdobbs-shows-roe-and-casey-were-wrong-on-the-law-and-on-the-science%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1533296&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/06\/4582455741_16d10307cb_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>Since <em>Dobbs<\/em>\u2019 release last Friday, coverage has focused overwhelmingly on the bottom-line holding\u2014that there is no constitutional right to abortion\u2014and what that means for the country. But <em>Dobbs <\/em>is much more than its holding: The Supreme Court\u2019s opinion destroyed the legal sophistry of <em>Roe v. Wade <\/em>and <em>Planned Parenthood v. Casey<\/em> and the anti-science underpinnings of their false claim that a constitutional right to abortion exists.<\/p>\n<p>With the authority to regulate abortion returned to the people and their elected representatives, pro-life Americans seeking to persuade the public to prohibit or limit abortion would be well-served to study the <em>Dobbs <\/em>analysis.<\/p>\n<h2>No, Abortion Is Not in the Constitution<\/h2>\n<p>In its decision last week overturning <em>Roe <\/em>and <em>Casey, <\/em>the Supreme Court in <a href=\"https:\/\/www.supremecourt.gov\/opinions\/21pdf\/19-1392_6j37.pdf\" target=\"_blank\" rel=\"noreferrer noopener\"><em>Dobbs v. Jackson Women\u2019s Health Organization<\/em><\/a> began its analysis \u201cby considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion.\u201d To answer this question, the Supreme Court methodically examined \u201cwhether the right to obtain an abortion is rooted in the Nation\u2019s history and tradition and whether it is an essential component of ordered liberty.\u201d That analysis led the court to conclude there was no basis to find a constitutional right to abortion in the U.S. Constitution.<\/p>\n<p>The high court\u2019s analysis did not end there. The <em>Dobbs <\/em>opinion addressed next whether the doctrine of stare decisis counseled toward the continued acceptance of the precedent of <em>Roe<\/em> and <em>Casey<\/em>, notwithstanding the Supreme Court\u2019s conclusion that, properly understood, the Constitution did not provide a right to abortion. After stressing that it has \u201clong recognized that stare decisis is \u201cnot an inexorable command,\u201d the Supreme Court analyzed five factors that compelled the court to overrule Roe and Casey.<\/p>\n<p>The first two factors discussed by the <em>Dobbs <\/em>court considered the soundness of the <em>Roe <\/em>and <em>Casey <\/em>decisions and specifically \u201cthe nature of their error\u201d and \u201cthe quality of their reasoning.\u201d That analysis eviscerated both <em>Roe <\/em>and <em>Casey.<\/em> After dissecting <em>Roe, <\/em>Justice Alito, writing for the court, capsulized the many errors of <em>Roe <\/em>as follows:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p><em>Roe <\/em>was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds. <em>Roe <\/em>found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to \u2018viability\u2019) was never raised by any party and has never been plausibly explained.<\/p>\n<\/blockquote>\n<p>It wasn\u2019t just the <em>Dobbs <\/em>majority and pro-life advocates, however, who found \u201c<em>Roe\u2019s <\/em>constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.\u201d Almost immediately, <em>Roe<\/em>\u2019s reasoning \u201cdrew scathing scholarly criticism, even from supporters of broad access to abortion,\u201d putting <em>Roe <\/em>\u201con a collision course with the Constitution from the day it was decided.\u201d<\/p>\n<h2>Even <em>Casey<\/em> Contradicted <em>Roe<\/em><\/h2>\n<p>Even in <em>Casey<\/em>, in which a plurality upheld what it called <em>Roe<\/em>\u2019s central holding\u2014that a state may not constitutionally protect fetal life before \u201cviability\u201d\u2014the lead opinion \u201cpointedly refrained from endorsing most of [<em>Roe\u2019<\/em>s] reasoning.\u201d <em>Casey <\/em>also \u201ccriticized and rejected <em>Roe\u2019<\/em>s trimester scheme.\u201d In fact, as <em>Dobbs <\/em>noted, the <em>Casey <\/em>opinion suggested that a majority of the justices might not have thought <em>Roe <\/em>was correct.<\/p>\n<p>Not even the dissent in <em>Dobbs <\/em>sought to defend the Supreme Court\u2019s analysis in <em>Roe<\/em>, but was instead \u201cforced to rely solely on the fact that a constitutional right to abortion was recognized in <em>Roe <\/em>and later decisions that accepted <em>Roe<\/em>\u2019s interpretation.\u201d \u201cThe dissent characterizes <em>Casey <\/em>as a \u2018precedent about precedent,\u2019\u201d the <em>Dobbs <\/em>court noted in its Friday opinion, adding that to the dissenting justices <em>Casey <\/em>was \u201cpermanently shielded from further evaluation under traditional stare decisis principles.\u201d<\/p>\n<p>But <em>Casey <\/em>was fundamentally flawed as well, Justice Alito wrote, by treating \u201cthe national controversy provoked by <em>Roe <\/em>as a ground for refusing to reconsider that decision . . .\u201d Justice Alito also stressed that the <em>Casey <\/em>court \u201cprovided no new support for the abortion right other than <em>Roe<\/em>\u2019s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.\u201d<\/p>\n<p>In short, <em>Casey <\/em>\u201ceither refused to reaffirm or rejected important aspects of <em>Roe<\/em>\u2019s analysis, [and] failed to remedy glaring deficiencies in <em>Roe<\/em>\u2019s reasoning,\u201d instead perpetuating the errors of <em>Roe.<\/em><\/p>\n<h2><strong>The <em>Roe<\/em> and <em>Casey<\/em> Courts Were Science Deniers<\/strong><\/h2>\n<p>Having destroyed the constitutional analysis of <em>Roe <\/em>and <em>Casey <\/em>and rejected <em>Casey<\/em>\u2019s \u201cexceptional version of stare decisis that . . . [the Supreme] Court had never before applied and has never invoked since,\u201d the court in <em>Dobbs <\/em>overturned those decisions and held there was no federal constitutional right to abortion. The majority in <em>Dobbs<\/em>, however, did not merely decimate the legal analysis underlying <em>Roe <\/em>and <em>Casey<\/em>: The high court also revealed, albeit much more subtly, that the decisions\u2014much like the arguments of abortion apologists\u2014rested on a denial of science.<\/p>\n<p>\u201cAbortion presents a profound moral issue on which Americans hold sharply conflicting views,\u201d Justice Alito opened the <em>Dobbs <\/em>opinion, continuing: \u201cSome believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman\u2019s right to control her own body and prevents women from achieving full equality.\u201d<\/p>\n<p>This initial phraseology, \u201cthat a human person comes into being at conception,\u201d struck a strange chord, because it conflated two distinct beliefs underpinning the pro-life movement. First, that at conception, a new, distinct human being exists, and second, that all human beings are \u201cpersons.\u201d But the <em>Dobbs <\/em>opinion soon made clear it understood the distinction, whereas <em>Roe <\/em>and <em>Casey <\/em>didn\u2019t.<\/p>\n<h2>When Life Begins<\/h2>\n<p>Throughout its analysis, <em>Dobbs <\/em>spoke unequivocally of life and used quotation marks to stress the alternative reality presented in <em>Roe <\/em>and <em>Casey <\/em>that the fetal life at issue in abortion merely represents \u201cpotential life.\u201d <em>Roe <\/em>and <em>Casey\u2019<\/em>s anti-science view, however, extended much beyond the court in those cases framing the unborn as holding the status only of a \u201cpotential life.\u201d<\/p>\n<p>In <em>Roe, <\/em>the majority spoke of early \u201cphilosophical, theological, and civil and canon law concepts of when life begins,\u201d and noted that those \u201cdisciplines variously approached the question in terms of the point at which the embryo or fetus became \u2018formed\u2019 or recognizably human, or in terms of when a \u2018person\u2019 came into being, that is, infused with a \u2018soul\u2019 or \u2018animated.\u2019\u201d \u201cA loose consensus evolved,\u201d the <em>Roe <\/em>court continued, \u201cin early English law that these events occurred at some point between conception and live birth.\u201d<\/p>\n<p>But philosophy and theology address questions concerning the <em>value<\/em> of life, not the <em>facts<\/em> of life, such as when life begins. When a fetus is \u201crecognizably human,\u201d holds the legal status of \u201cperson,\u201d or is infused with a soul has nothing to do with the scientific question of \u201cwhen life begins.\u201d<\/p>\n<p><em>Roe <\/em>refused to decide that scientific question, claiming it was a \u201cdifficult question\u201d to which \u201cthose trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, . . .\u201d and even maintaining \u201cthere has always been strong support for the view that life does not begin until live birth.\u201d<\/p>\n<p>The court in <em>Roe <\/em>then concluded that \u201ca legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth.\u201d From there <em>Roe <\/em>and apologists for the court\u2019s decision downgraded human life <em>in utero <\/em>to merely \u201cpotential life.\u201d In reaffirming <em>Roe, Casey <\/em>followed <em>Roe<\/em>\u2019s unscientific bent, speaking oxymoronically of \u201cpost-conception potential life.\u201d<\/p>\n<p>The <em>Dobbs <\/em>court exposed the scientific fallacy underlying <em>Roe <\/em>and <em>Casey<\/em>\u2014that human life <em>in utero <\/em>is merely \u201cpotential life\u201d\u2014first by rejecting the \u201cpotential life\u201d language from <em>Roe <\/em>and <em>Casey <\/em>and instead expressly stating that the issue of abortion concerned fetal life. The court brought home that point when it framed the dissent\u2019s position as being that \u201cthe Constitution requires the States to regard a fetus as lacking even the most basic human right\u2014to live\u2014at least until an arbitrary point in a pregnancy has passed.\u201d<\/p>\n<h2><em>Roe<\/em> and <em>Casey\u2019s<\/em> Viability Standards<\/h2>\n<p>But it was the court\u2019s analysis of the viability standard of <em>Roe <\/em>and <em>Casey <\/em>that proved most devastating to the anti-science bent of those decisions. \u201cWhat Roe did not provide was any cogent justification for the lines it drew,\u201d <em>Dobbs <\/em>explained, with <em>Roe <\/em>and <em>Casey<\/em>\u2019s \u201cfailure to justify the critical distinction it drew between pre- and post-viability abortions,\u201d a \u201cglaring deficiency\u201d in the opinion.<\/p>\n<p><em>Dobbs <\/em>then excerpted the <em>Roe <\/em>court\u2019s purported justification for drawing the line at viability, stressing it represented not a rationale but a conclusion: \u201cWith respect to the State\u2019s important and legitimate interest in potential life, the \u2018compelling\u2019 point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb.\u201d<\/p>\n<p>But how does the fact that the fetus is \u201cviable,\u201d meaning \u201ccapable of surviving outside the womb,\u201d make a \u201cState\u2019s interest compelling?\u201d <em>Dobbs <\/em>asked. If, as <em>Roe <\/em>held, a state\u2019s interest in protecting prenatal life is compelling \u201cafter viability,\u201d \u201cwhy isn\u2019t that interest \u2018equally compelling before viability\u2019? <em>Roe<\/em> did not say, and no explanation is apparent.\u201d<\/p>\n<p>The reason no explanation is apparent is because both before and after viability, human life is at stake. Even the dissenting justices in <em>Dobbs <\/em>accepted that truism, not even attempting to suggest that viability marks the point that a potential life becomes life. Instead, the dissent focused on stare decisis and a woman\u2019s supposed right to abortion.<\/p>\n<h2>The Unborn Aren\u2019t a Potential Life, But Living<\/h2>\n<p><em>Dobbs<\/em> further refuted the anti-science concept that human life <em>in utero<\/em> represented but \u201cpotential life\u201d in its discussion of the various views of philosophers and ethicists \u201cwho have attempted to justify a right to abortion.\u201d The justifications posited concerned not the <em>fact<\/em> of life but of the <em>value<\/em> of life and when fetal life deserves legal protection.<\/p>\n<p>The philosophical and ethical frameworks suggest, <em>Dobbs<\/em> explained, that human life must acquire characteristics of what \u201cthey regard as defining what it means to be a \u2018person,\u2019 to merit legal protection. Some characteristics offered as essential attributes of \u2018personhood\u2019 are sentience, self-awareness, the ability to reason, or some combination thereof.\u201d These frameworks, however, all accept that human life exists in the womb.<\/p>\n<p>The Supreme Court concluded that, even if one takes the view that \u201cpersonhood\u201d begins when a certain attribute or combination of attributes is acquired,\u201d using viability to \u201cmark the point where \u2018personhood\u2019 begins\u2019 made no sense because \u201cviability is heavily dependent on factors that have nothing to do with the characteristics of a fetus.\u201d<\/p>\n<p><em>Dobbs <\/em>also noted that the \u201cpersonhood\u201d theory, if adopted, would leave open the possibility that \u201ceven born individuals, including young children or those afflicted with certain developmental or medical conditions,\u201d might lack the status of \u201cpersons,\u201d which logically would allow for the lawful post-birth killing of children.<\/p>\n<h2>Personhood Is Not a Question for Science<\/h2>\n<p>While the dissent left unchallenged <em>Dobbs\u2019 <\/em>correction of the scientific error underlying <em>Roe <\/em>and <em>Casey<\/em>\u2014that the human being <em>in utero <\/em>represented only potential life\u2014it chastised the majority for leaving unanswered the question of \u201cpersonhood.\u201d Here, the dissent claimed that <em>Dobbs\u2019 <\/em>failure to determine the question of a fetus\u2019 personhood \u201caligned\u201d with <em>Roe <\/em>and <em>Casey<\/em>\u2019s refusal to decide whether life or potential life was involved.<\/p>\n<p>But rather than diminish the court\u2019s reasoning, the dissent\u2019s argument confirms <em>Dobbs\u2019 <\/em>repudiation of the anti-science premises of both <em>Roe <\/em>and <em>Casey\u2014<\/em>that when life begins is unclear. To the dissent, that question was no different than the question of \u201cpersonhood.\u201d<\/p>\n<p>Pro-lifers would agree: Every human being is a person. But unlike the fact that life begins at fertilization, the concept of \u201cpersonhood\u201d is not a question of science. And because the question of whether the Constitution guarantees a right to abortion does not depend on a living fetus\u2019 status as a person, there was no reason for the <em>Dobbs <\/em>court to address that question.<\/p>\n<p>Nonetheless, the logic of the opinion tilts toward the conclusion that \u201cpersonhood\u201d rests on an individual\u2019s status as a human being, and not whether the human life resides in a womb, a neo-natal unit, or a nursery. That will be a question for <a href=\"https:\/\/www.firstthings.com\/web-exclusives\/2022\/06\/what-comes-after-roe\">another day<\/a>.<\/p>\n<p>For now, pro-life Americans should celebrate the <em>Dobbs<\/em> decision while also educating themselves on the high court\u2019s analysis, which exposes both the legal and scientific flaws of <em>Roe <\/em>and <em>Casey.<\/em><\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Since Dobbs\u2019 release last Friday, coverage has focused overwhelmingly on the bottom-line holding\u2014that there is no constitutional right to abortion\u2014and what that means for the country. But Dobbs is much<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1533296","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1533296","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1533296"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1533296\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1533296"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1533296"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1533296"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}