“It’s the basis of democracy that you control your own body.
And it’s the basis of hierarchy and totalitarian regimes that you don’t.”
— Gloria Steinem, Reversing Roe
For the first time since the Dred Scott decision declared that Black people were “so far inferior that they had no rights which the white man was bound to respect,” the Supreme Court is poised to extinguish a fundamental right — the right to abortion enshrined in the 1973 Roe v. Wade decision — and return us to the days of back-alley abortions almost immediately in more than a dozen states. It could even be nationwide within three years if Republicans have their way.
This one-way ticket to Gilead comes on the basis of multiple lies so outlandish they constitute gaslighting — an attack on public sanity, the taken-for-granted foundation on which democratic self-governance depends.
Indeed, when oral arguments were heard in December, both Linda Greenhouse at the New York Times and Dahlia Lithwick at Slate wrote stories headlining the gaslighting involved. On May 2, a leaked draft of the written decision by Justice Samuel Alito provided much more of the same.
The most blatant gaslighting was retroactively revealed: the bald-faced lies of five justices during confirmation hearings, giving false assurances to respect Roe as precedent—or at worst not to already oppose it. Alito himself called Roe “a very important precedent.” Neil Gorsuch noted, “It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent.” Brett Kavanaugh called Casey “precedent on precedent,” saying, “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.”
“I don’t have any agenda, I have no agenda to try to overrule Casey,” Amy Coney Barrett said. “I have an agenda to stick to the rule of law and decide cases as they come.”
“I believe the Constitution protects the right to privacy,” Clarence Thomas said, “And I have no reason or agenda to prejudge the issue, or predisposed to rule one way or the other on the issue of abortion.”
All this was directly contradicted by the draft decision, which calls Roe “egregiously wrong … on a collision course with the Constitution from the day it was decided.”
“Caught on tape. All five of them oath breakers,” University of Maryland historian Holly Brewer tweeted the next day.
“It’s really outrageous that no one seems to care that these people lied,” Nation columnist Joan Walsh said on MSNBC five days later. “Especially the people who fooled [Maine GOP Senator] Susan Collins. I think they should be held to account.”
Another piece of gaslighting was the decision’s claim to only address abortion, even though its logic would erase all rights not explicitly written into the Constitution or ““deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”
That’s “Not just abortion rights,” Rep. Nanette Barragán said on MSNBC on May 8. “Anything that the court has ruled on since the founding days is at stake under the Alito decision, which, I think, is what is so dangerous — whether you’re talking about same sex marriage, whether you’re talking about voting rights, there is so much on the line beyond just abortion rights.”
In fact, multiple states saw proposals to ban birth control within days of the leak.
The gaslighting attack on public sanity and democratic self-governance was no accident, according to New York Times columnist Max Fisher. “The erosion of abortion rights is extremely rare in the world, and almost exclusively occurs in backsliding democracies,” Fisher tweeted shortly after the draft was leaked. “Only 30% of Americans support overturning Roe, with 69% opposed, according to the most recent polling,” he added. “Our national political institutions are simply not engineered to reflect popular will.”
Fisher provided precise statistics in a column last September: Since 2000, 31 countries — including heavily Catholic countries like Ireland and Mexico — have expanded access to abortion. Just three have rolled it back: Nicaragua, Poland and the United States.
Zeroing in on the last two, he wrote, “The only two developed countries to roll back abortion rights, the United States and Poland, share a revealingly similar trajectory. In both, high courts rolled back abortion rights that were favored by national majorities.” What’s more, this is part of a larger pattern:
Curbs on women’s rights tend to accelerate in backsliding democracies, a category that includes the United States, according to virtually every independent metric and watchdog.
In more degraded democracies, the effect is more extreme. Around the globe, the rise of right-wing populism has been followed by extraordinary reductions in women’s rights, according to a 2019 report by Freedom House.
America’s dismal place in this worldwide pattern echoes what was going on when Dred Scott was decided: Northern population growth threatened Southern political dominance, which the Supreme Court acted to preserve, with the help of false history. Similarly today, the GOP has only won the popular presidential vote one time since 1988, but has appointed six of nine SCOTUS justices, all of whom have lied about Roe to some degree, after Robert Bork testified honestly in 1987, and was soundly rejected.
The leaked Dobbs decision says that Roe was wrong, and the decision belongs to the people. But the people say that Roe is what they want, by roughly 2-1 or more. That alone makes the Dobbs decision gaslighting on an epic scale.
What makes the gaslighting even worse is that this same court has empowered state legislatures to gerrymander without limit, and choose their own electorates, rather than having electorates choose them. So “returning abortion to the people” actually means returning it to legislative bodies, some of which can virtually never be voted out of office, no matter what the people might think.
This is the environment in which some states are talking about total abortion bans, with no exceptions for rape, incest, birth defect, or the health or life of the mother. That’s a position with less than 8% support across five decades of polling by the General Social Survey, considered the gold standard in American public opinion.
Anti-abortion activists have long tried to equate Roe with Dred Scott, but Dobbs overturning Roe is a much better fit, according to historian Holly Brewer.
“This opinion reminds me of Dred Scott (1857),” she tweeted the day of the leak. “Why? 1) It’s an attempt to create a definitive decision to a very controversial issue 2) it will take away rights and self-determination from a group of people 3) it transforms current law & 4) will only deepen political divisions.”
But there’s another parallel—the central role of historical lies—which Brewer herself helped elucidate in another thread. Blacks did not enjoy rights throughout all of 1857 America—but they had citizenship rights in Northern free states, including the right to sue, which Dred Scott denied, as in the quote above. But in fact, in 1781, before the Constitution was drafted, Quock Walker sued for and won his freedom under the Massachusetts Constitution. This was the exact same right that Dred Scott denied.
The right to abortion also existed then, however. “Alito reaches back to the 17th c. English Common law to provide a precedent for his decision, but the 17th c. judgments he cites only made abortion a crime if it happened after the child ‘quickens’ or moves,” Brewer wrote. “This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs. So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence.”
Alito claims the same for statutory law, writing, “By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.”
But this is simply false, as UC Davis law professor Aaron Tang explained in an LA Times op-ed, citing numerous mischaracterizations of laws—in Nebraska, Louisiana, Florida, Oregon and Alabama. All told, “The best evidence is that only 16 of 37 states banned pre-quickening abortions when the 14th Amendment was ratified,” he wrote, “the right to pre-quickening abortion persisted in early America despite an organized, misogynistic campaign to ban it.”
Thus, Tang concludes, “The leaked opinion’s ignorance of the true history of abortion — or worse, its duplicity — suggests that the justices in the conservative majority are not, as they claim in the draft opinion, merely ‘do[ing] our job, which is to interpret the law.’ Instead, as Justice Sonia Sotomayor suggested at oral argument, the opinion’s flawed reasoning creates a ‘stench’ that the court’s reading of the Constitution on abortion is just a ‘political act.’”
And that’s precisely how it should be seen: as a naked power-grab that demands an even more powerful response.
Saving democracy, reforming the Supreme Court, and protecting reproductive rights are all the same fight—a fight against gaslighting as well. Gaslighting seeks to deceive you about everything—your sense of reality, your own sanity, your fundamental knowledge of who you are.
Are we America? Or are we Gilead? The choice is ours.
