Having quarterbacked the effort to pass the Mississippi law that led to the end of Roe v. Wade, I was not as surprised as I thought I would be when we won Dobbs. Back in 2017 when I first started putting the pieces together to get Mississippi’s 15-week ban on abortion enacted, my goal was not exactly to reverse Roe v. Wade.
The goal was to pass good legislation for the state of Mississippi — legislation that would protect women from the dangers of late-term, second- and third-trimester abortions and legislation that would protect unborn children after the first three months of pregnancy. The idea was to challenge the Roe/Casey legal framework, in particular the so-called viability standard. At the time, I did not realize how shaky Roe’s edifice was. Over the last few months — in particular, after the leaked Alito draft — I realized the Supreme Court had to reverse Roe for the sake of the Court itself.
It is not Roe’s poor reasoning that led to its demise. Plenty of Supreme Court cases are poorly reasoned (ever heard of Wickard v. Filburn?). It’s not that Roe deals with life and death issues. Many Court opinions have similar significance. Likewise, the Court didn’t just make a policy error with Roe. The Court makes policy mistakes all the time and corrects some and doesn’t correct others. It’s not just that Roe infringed upon the legislative process and upset the balance of powers between the states and the judicial branch. It’s not even that it disenfranchised and silenced millions of people around the country who believe abortion is wrong.
The fundamental problem with Roe was that it was based on a lie. Not a false statistic about back-alley abortions. Not a half truth about abortion and the common law. The big lie that made Roe so unsettled was the Court’s presumption that abortion is a simple matter. It’s a simple matter the Supreme Court thought it could resolve from on high — and people would listen.
Except abortion is not a simple matter. Every woman who has had an abortion knows in her heart that her baby is a human being and that she is ending the life of her baby. Yet hundreds of thousands of women make this decision every year. The reasons are… complicated. Abortion is complicated. Adoption is complicated. Raising a child in poverty or without a father is complicated. There is nothing about abortion and the reasons women have or don’t have an abortion that is not complicated. And yet, the Supreme Court thought it could settle the matter with Roe. The Court lied — to itself and to the American people.
But the people didn’t buy it. Pro-lifers didn’t believe the lie and started working immediately to overturn Roe. Even abortion supporters didn’t really believe the lie, finding it “hard to defend Roe’s reasoning,” as the Court’s majority opinion observes, and having to compensate with an irrational zeal fueled by the rational fear that one day it was all going to come crashing down. Only the Court seemed convinced that Roe’s basic premise was true — that the Court itself could settle the complicated matter of abortion.
With Dobbs, the Court has reversed its mistake. The mistake was expecting that the Court could deprive the people of their voice and their vote — and that the people would eventually go along with it. After a little while, with enough time and explanation and revision, as in the 1992 Casey decision, America and the Court would be alright again.
Except things never did get back to being alright. After the leaked Alito draft, many commentators asserted that the integrity of the Court was at stake because of the leak and the ensuing investigation. Our judicial system will prove strong enough to survive a leaked draft opinion. It’s not strong enough to survive the perpetuation of a lie everyone knows is false.
The Dobbs decision will not end the culture wars. Dobbs will not even end abortion in America. But in ending Roe v. Wade, the Court will be made whole again — a Court capable of head-scratching decisions, dizzying policy swings, and unsatisfying compromises, but a Court that knows it can’t lie to the American people.
Dr. Jameson Taylor helped draft the Mississippi law in Dobbs v. Jackson and led the coalition to get it passed. He is the Director of Government Affairs for AFA Action.
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