Exposing a Supreme Case of Disinformation

The Biden Administration recently created a “Disinformation Governance Board” within the Department of Homeland Security. Its stated purpose is to combat what the DHS considers to be disinformation making its way to the general public.

This is odious in more ways than one, but also a farce because the Biden Administration is itself is a chronic dispenser of disinformation. Three days ago, the White House published the following statement:

“When President Biden took office, millions were unemployed and there was no vaccine available…”

They must have forgotten about all the pictures and videos of Joe Biden receiving not one but two COVID-19 vaccine shots before he took office. And what about the 20 million Americans who received at least one dose of the vaccine prior to Biden’s inauguration? Disinformation doesn’t get any more blatantly obvious than this.¹

As bad as that example is, it will likely be forgotten in a few days because it was so over-the-top. It’s the more subtle forms of governmental disinformation that are lasting and most dangerous. The recently leaked Supreme Court opinion on abortion, and the consequent resurrection of the fiery rhetoric surrounding the Roe vs. Wade case, brings this point into clear focus. Perhaps the greatest historical example of disinformation ever to come out of the federal government is the fantasy that the US Constitution holds within it a “right” to abortion as declared in Roe vs. Wade.

In that 1973 opinion, the Court stated that a Constitutional right to privacy included a woman’s right to abort a pregnancy. They further stated that this right to privacy is derived directly from the 14^th Amendment.

In our opinion, that assertion by the Supreme Court was one of the most damaging pieces of disinformation ever published. In the 50 years since, the constant pounding of this incorrect and contorted derivation of a Constitutional right to abortion has resulted in most Americans being completely ignorant of the true facts of Roe’s actual legal underpinnings. The Biden administration continues to aggressively perpetuate this misconstruction. As a result, this completely contrived rationale for a “right” has become so ingrained in our society, even the President will now demonize anyone who questions its validity.²

This is not a judgement on the morality of abortion or the societal acceptance (or not) of the practice. It is purely a critique of the legal basis upon which the controlling legal precedent of Roe vs. Wade rests. Likewise, Justice Alito’s leaked opinion steers clear of any ethical judgements about abortion and focuses squarely on the legal case history and the central finding of Roe – that an assumed right to privacy, and by extension abortion, is derived from the 14^th Amendment.

Here are some facts about the 14^th Amendment:

• The word “privacy” does not exist anywhere in the text of the 14^th Amendment
• The 14^th Amendment was written in 1866 and ratified in 1868.
• It was one of three Amendments (13^th, 14^th, 15^th) passed in the immediate aftermath of the Civil War for the purpose of guaranteeing rights and protections to the newly freed slaves.

This last point is critical to understand. The 14^th Amendment was not randomly conceived at that point in time for general purposes. It was written specifically to codify the then new reality of the end of slavery in the United States. Had the Civil War occurred 10 years earlier or 10 years later, the 13^th – 15^th Amendments would have been written 10 years earlier or 10 years later. These three Amendments are inextricably linked to the end of slavery and to the rights previously denied to enslaved people. Their context had no connection whatsoever to a general right to privacy that would include abortion.

The 1973 Supreme Court derived the notion of privacy from what has come to be known as the “due process” clause in the 14^th Amendment. The exact wording of that clause is:

…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…

In an impressive feat of linguistic gymnastics, the Court took from this clause that “liberty” was synonymous with the word “privacy”. Then in an even greater leap of faith, they infused the act of abortion into the general meaning of the word “privacy”.

In his dissenting opinion in Roe, Associate Justice William Rehnquist³ best captured the obvious attempt by the Court to create meaning where none previously existed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.

In the 50 years following this “heroic” wordsmithing by the Court, abortion activists and the media morphed this convoluted etymology of the term “privacy” into a hallowed phrase repeated countless times – “A Woman’s Right to Choose”.

The evolution of the disinformation surrounding the Roe decision did not end there. In repeatedly making the point that Roe made abortion legal throughout the US, pro-abortion activists and most Democrats in government proclaim the obverse: that overturning Roe would make abortion illegal throughout the US. It would not. However, over the years, that subtle form of disinformation easily permeated an increasingly uneducated American public.

Recent polling revealed that fully 77% of Americans now believe abortion will be outlawed throughout the entire country if Roe vs. Wade is overturned. That stunning amount of ignorance about the true facts of the case and its consequences is proof positive just how effective the insidious dispersion of misinformation from the government and its media allies can be. The reality, of course, is that should Alito’s draft opinion prevail as the final decision of the current Supreme Court, the legality of abortion will then be determined independently in each of the 50 states.

It is long overdue for the egregious and continuing flow of disinformation about the Constitutional underpinnings of Roe vs. Wade to finally be set right. Justice Alito’s draft opinion accomplishes this with logic, historical truth, and elegance.

¹These kind of statements, all too common from this Administration, cannot be simply brushed away by the overused euphemism of being “misspoken”.

²President Biden himself recently derided the current Supreme Court by accusing them of believing “there is no such thing as a right to privacy” when referring to Justice Alito’s leaked opinion.

³In 1986, 13 years after the Roe vs. Wade decision, Associate Justice William Rehnquist became Chief Justice William Rehnquist. He served as Chief Justice of the Supreme Court until his death in 2005 and was succeeded by current Supreme Court Chief Justice, John Roberts.