President Biden has released a statement this morning, responding to last night’s Politico piece that contained a leaked copy of an apparent draft majority opinion overturning Roe and Casey in Dobbs v. Jackson Women’s Health Organization.
A few points of note. Nowhere does the president condemn the fact that this document — which Chief Justice John Roberts has confirmed is legitimate — was leaked from the Supreme Court by someone whose duty it is to keep the Court’s inner workings private. It is astonishing that the President of the United States would comment on this document without so much as gesturing at how breathtakingly problematic it is that it became public — and it’s indicative of how wedded the left is to abortion on demand, mandated by the Supreme Court. This end apparently is so sacred that it justifies any means necessary.
Biden’s statement meanwhile evokes several common tropes about abortion and Roe, all of which are easily dismantled. Perhaps foremost among them: “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.”
Basic fairness doesn’t require any such thing. This complaint is typical from opponents of overturning Roe, a lazy man’s way out of defending either legal abortion or the decisions legitimizing it. But as anyone with even a modest knowledge of U.S. history knows, the Court has been wrong before, sometime egregiously so — and it has, thankfully, overturned some of its most flawed decisions. Those who insist on keeping Roe for the sake of consistency and predictability have never managed to explain how this argument applies to, say, Dred Scott, Plessy, or Korematsu.
Stare decisis has never been understood to require leaving every single Supreme Court ruling in place, regardless of egregious flaws, simply because it’s in place already. Whether it had been one year or one hundred since it was issued, Roe is bad law, an intentionally political decision masquerading as a judicial one. It imposed the moral-political views of seven justices on the entire country, perverted our Constitution, and upended the proper functioning of our institutions. Regardless of your views on abortion, Roe and Casey are inaccurate on numerous counts and have proven unworkable. Invoking stare decisis in their defense is laziness of the highest order.
The rest of Biden’s statement suggests that his administration is prepared to do everything in its power to impose the Roe status quo on the entire country, no matter what the Court does in its final ruling. It’s hard to see how, with such rabid activists breathing down their necks, Democratic politicians could get away with doing anything less — but if they follow through on these promises, they should expect to pay a steep political price.