My Less Than Humble Opinion

The Logical Fallacy

The “Slippery Slope” argument is a logical fallacy. As described in a paper from the Department of Philosophy of Texas State University:

In a slippery slope argument, a course of action is rejected because, with little or no evidence, one insists that it will lead to a chain reaction resulting in an undesirable end or ends. The slippery slope involves an acceptance of a succession of events without direct evidence that this course of events will happen.

Here are some of examples from the same paper:

1. We can’t permit the sale of marijuana by doctor’s prescription, because that will lead people to believe it’s an acceptable drug; this will open the floodgates to the complete legalization of the drug for use by every pothead in the country.
   
   
2. I don’t think it’s a good idea to lower the drinking age. Next thing we know kids will get to drive at age ten, and vote at fifteen. Let kids be kids and adults be adults.
   
   
3. Today, women want the vote. Tomorrow, they’ll want to be doctors and lawyers, and then combat soldiers. Give them that, and before long, they’ll insist on taking the initiative in sex. If you want to protect the very meaning of masculinity, you must deny them suffrage.
   
   
4. First we loosen up the laws against abortion. Next, mark my words; we’ll take seriously the option of infanticide in certain severe cases. And this will lead us to look with favor on euthanasia for those we deem social deviants.
   
   

The first example may be coming to pass. The second is just plain silly … particularly when you consider that a lot of adults don’t know how to be adults. (I’m sure you know some of these people. If not, you may be one of them.) The third “slippery slope” has mostly come to pass, but leads to a conclusion that only the Proud Boys, the Oath Keepers, and other right-wing, extremist groups would fear. The fourth is unutterable nonsense. Some of the 6 Supreme Court Justices who overturned Roe v. Wade may disagree. This brings us to the point of this article.

Dobbs v. Jackson Women’s Health Organization

On Friday, June 24, 2022, the Supreme Court announced their decision on Mississippi’s abortion rights case, Dobbs verses Jackson Women’s Health Organization. Their vote was 6-3 in favor of the Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. They didn’t stop there. By a vote of 5-4, the majority went on to overturn Roe v. Wade, the decision that has given women the right to end an unwanted pregnancy. (Chief Justice John Roberts voted with the minority.) A right that women in the United States have had for more than 49 years has been handed over to the whims of individual state legislatures.

Roe v. Wade was based on the due process clause in Section 1 of the 14th Amendment to the Constitution:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

Several other decisions of the Court are based on that clause:

• Meyer v. Nebraska (1923)
  
  The decision on this case declared that a Nebraska law restricting foreign-language education violated the due process clause.
  
  
• Pierce v. Society of Sisters (1925)
  
  By striking down an Oregon statute that required all children to attend public school expanded due process clause  to recognize personal civil liberties.
  
  
• Griswold v. Connecticut (1965)
  
  The Court upheld the right of married couples to buy and use contraceptives.
  
  
• Loving v. Virginia (1967)
  
  This decision struck down a Virginia law that criminalized interracial marriage.
  
  
• Eisenstadt v. Baird (1972)
  
  The ruling on this case gave unmarried people the same rights to buy and use contraceptives that Griswold v. Connecticut had granted to married people.
  
  
• Lawrence v. Texas (2003)
  
  This decision eliminated criminal punishment for those … straight, gay, binary, etc. … who engage in non-procreative consensual sex.
  
  
• Obergefell v. Hodges (2015)
  
  The Court ruled that same sex couples had the same right to marry as heterosexual couples.
  
  

The “Slippery Slope Theory” would say that the overthrow of Roe v. Wade is just the beginning. What long-held right will the 6 to 3 conservative Court remove next? Will same-sex couples be denied the right to marry? Will abortion be viewed as “just the most extreme form of contraception” … opening the door to denying all forms of contraception? Will the law again monitor our bedrooms?

In the majority opinion of Dobbs v. Jackson Women’s Health Organization, Associate Justice Samuel Alito wrote:

Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”

These words suggest that the Court would not apply the same reasoning used in Dobbs v. Jackson Women’s Health Organization to future challenges to decisions based on the 14th Amendments due process clause. Once again, “Slippery Slope Theory” is exposed as a fallacious argument, but …

… in his concurring opinion, Associate Justice Clarence Thomas wrote: ^[1]

As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.”

(“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives); Lawrence v. Texas, (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”

Other than labeling substantive due process an oxymoron, Associate Justice Thomas agrees with the majority that this decision doesn’t create a “Slippery Slope” into same sex marriage, contraception, etc. He should have quit there but, he continues with:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

The Supreme Court cannot make decisions on questions of law unless they are presented with a case that has been appealed from a lower court. Associate Justice Thomas is hinting that some state or states should pass laws that challenge Griswold, Lawrence, and Obergefell and other decisions based on “due process” considerations.^[2] This is not a “Slippery Slope”. You can fall down a perfectly dry and solid slope if someone gives you a push.

Did Associate Justice Thomas “say the quiet part out loud”? Was he the only one willing to disclose unspoken long-term goals of the Court’s conservative majority … or. is he just the most conservative member of the 6 to 3 imbalance of the Roberts Court?

Alive or Dead?

Everything I’ve ever learned about the drafting of our country’s Constitution has led me to infer that it is a living document. If it were intended to be “written in stone for all time”, Article V would be irrelevant.

Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

A “finished” document has no need for amendments. The Torah, the Bible, and the Quran haven’t been amended in centuries. The Bhagavad-Gita hasn’t been amended in eons.

Partial Solution

At 12:22 PM EDT on Thursday, July 8, 2022, President Biden signed an executive order designed to provide some protection against the extreme state anti-abortion laws that went into effect as soon as the Dobbs v. Jackson Women’s Health Organization decision was announced and similar laws being proposed in additional states. The order is designed to:

• Safeguard access to reproductive health care services, including abortion and contraception;
  
  
• Protect the privacy of patients and their access to accurate information;
  
  
• Promote the safety and security of patients, providers, and clinics; and
  
  
• Coordinate the implementation of Federal efforts to protect reproductive rights and access to health care.
  
  

This may not sound like much, but there’s little more the president can do. If you have any ideas, you can write or call the White House. To be useful, an executive order must be within the confines of existing law.^[3] Even then, executive orders are a short-term solutions.^[4]

The division of power is clearly defined in the Constitution. Congress has the power to define new laws. The President and his Administration has the responsibility to execute those laws. If those laws are challenged, the Courts must determine whether they fit within the confines of the Constitution and existing law.

The only way to guarantee Freedom of Choice on the subject of abortion and Women’s Right of Privacy is for both chambers of Congress to pass a law that codifies the decision of Roe v. Wade and the related decision of Planned Parenthood of Southeastern Pa. v. Casey. The law must be carefully crafted so that its meaning is crystal clear and its Constitutionality is solid. With a few more Pro-Choice Representatives, such a bill should have little problem passing in the House. The Senate is a different. Given a Republican caucus that would vote against a free lunch if the Democrats were buying and a few recalcitrant Democrat, only the most innocuous bills are likely to pass the current Senate.

Here’s is a video of the President’s remarks and his signing of the executive order:

Tuesday, November 8, 2022

I know. I know. The President is asking us to vote again. That is not an excuse. It is a fact. The President’s ability to restore the protection and freedom of Roe v. Wade is extremely limited by the law. The rules of the Senate make it difficult to pass any laws when there is a 50-50 party split in that chamber of Congress. Using his “bully pulpit” just hardens the resolve of those who oppose the President and his party for no other reason than that they exist.

As is the case every two years, all 435 seats in the House of Representatives are open for election or re-election. In the Senate, 34 seats are up for election or re-election. Fourteen of those seats are currently held by Democrats; twenty are held by Republicans, but party is relevant only insofar as stereotypical party alignments in the Pro-Choice/Pro-Life spectrum.

Who needs to vote?

• If you are among the 61% who believe that abortion should be legal in all or most cases;
  
  
• If you believe that privacy is among the “certain Unalienable rights” referenced in the Declaration of Independence;
  
  
• If you suspect that Associate Justice Thomas isn’t the only conservative on the Supreme Court who is interested in pushing us down the hill to autocracy,
  
  

Educate yourself and VOTE in November … even if your state makes it difficult. Learn which of your state’s candidates for Congress believe that a woman should have the right to make her own decisions about her own body. Become familiar with the position of candidates for state and local offices too. Those officials can mess with your freedom as well. Voting for a “straight party ticket” is seldom wise. An automaton built with Legos or an Erector Set can do that. Democracy requires thoughtful voters.

Your vote is an investment; not a guarantee, but … if the November Midterm Election yields a 118th Congress with 218 or more pro-women’s rights representatives in the House and at least 60 pro-women’s rights senators in the Senate, there’s a 99⁺ percent probability that a Court-proof^[5] law protecting a woman’s right to choose will be passed by both chambers of Congress and signed by the President by Spring 2023. Probably a number of freedom-and-privacy protecting bills will be moving toward law behind it.

One Last Thought …

With apologies to Lutheran Pastor Martin Niemöller …

First they came for Women’s Bodily Autonomy
And I did not speak out
Because I was not a Women.
Then they came for Same Sex Marriage
And I did not speak out
Because I was not in a Same Sex Relationship
Then they came for Sexual Practices and Contraception
And I did not speak out
Because I no longer engaged in sex
Then they came for Interracial Marriage
And I did not speak out
Because I was not in an Interracial Relationship
Then they came for me
And there was no one left
To speak out for me.

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End Notes

[1]
Those who choose to read the full text of the decision can find it at:

^{https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization}

You will find a lot of in-line references to other pages within the document and to other cases. To make the text more readable, I have redacted those references from the portions of the decision that I have quoted.

Return to Point of Reference Point

[2]
It’s interesting that Associate Justice Thomas skipped two cases based on “due process” between Lawrence and Griswold … Eisenstadt v. Baird and Loving v. Virginia. Griswold is precedent for Eisenstadt. Both refer to the right to purchase and use contraceptives. If you overturn Griswold, it is logical to overturn Eisenstadt as well.

Loving v. Virginia is different. That decision uses “due process” to protect the right of interracial marriage. Perhaps he skipped that one to avoid trouble at home.

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[3]
The preceding Administration was not that concerned about the legality of executive orders. As a result, a number of President Trump’s executive orders were stopped in the Courts. Some were revised to into acceptability. Others were left to die after their publicity value had passed. “Winging it” is no way to run a country.

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[4]
The executive order of one Administration can be eliminated or even totally reversed by the Administration that follows it. Even if President Biden wins a second term, any or all of his executive orders can be overturned soon after the next President is inaugurated at Noon on January 20, 2029.

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[5]
Most of the time between the January 3, 2023 swearing in of the new Congress and a Roe v. Wade-like law will be consumed by the task of crafting a bill that cannot be overturned by the Court on any legitimate grounds. Passage through a majority favorable House and a filibuster-proof Senate will follow as quickly as the bill can be introduced, read by the Representatives and Senators, and the votes in each chamber can be taken.

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