1 00:00:00,200 --> 00:00:02,719 Speaker 1: After forty eight years, the United States may be coming 2 00:00:02,720 --> 00:00:06,200 Speaker 1: to the end of an error, a grievous error, one 3 00:00:06,240 --> 00:00:08,600 Speaker 1: of the most grievous errors, if not the single most 4 00:00:08,600 --> 00:00:12,280 Speaker 1: grievous error, in the history of the United States. The 5 00:00:12,400 --> 00:00:16,919 Speaker 1: Supreme Court has just heard oral arguments in Dabbs versus 6 00:00:17,000 --> 00:00:21,640 Speaker 1: Jackson Women's Health Organization, and in the coming year could 7 00:00:21,720 --> 00:00:25,759 Speaker 1: very possibly overturn Row versus Wade. This is Verdict with 8 00:00:25,760 --> 00:00:34,560 Speaker 1: Ted Cruz. Today's episode of Verdict with Ted Cruz is 9 00:00:34,600 --> 00:00:37,680 Speaker 1: sponsored by American Hartford Gold. I'm sure I'm not the 10 00:00:37,680 --> 00:00:40,640 Speaker 1: only one who's noticed everything is getting expensive. We are 11 00:00:40,680 --> 00:00:43,040 Speaker 1: in the biggest economic crisis since two thousand and eight, 12 00:00:43,400 --> 00:00:46,519 Speaker 1: with a government that's printing trillions and trillions of dollars. 13 00:00:46,560 --> 00:00:49,080 Speaker 1: Consumer prices are the highest we've seen in thirty years. 14 00:00:49,280 --> 00:00:52,400 Speaker 1: Inflation is certainly here to stay, and if the government 15 00:00:52,440 --> 00:00:55,400 Speaker 1: continues it's out of control printing and spending, the dollar 16 00:00:55,480 --> 00:00:58,120 Speaker 1: could continue its free fall and lose its coveted role 17 00:00:58,160 --> 00:01:01,080 Speaker 1: as the world reserve currency. So how do you protect 18 00:01:01,080 --> 00:01:04,720 Speaker 1: your money, your retirement, your savings. Well, American Hartford Gold 19 00:01:04,760 --> 00:01:07,000 Speaker 1: can show you how to head your heart earned savings 20 00:01:07,040 --> 00:01:10,319 Speaker 1: against inflation by helping you diversify a portion of your 21 00:01:10,319 --> 00:01:13,720 Speaker 1: portfolio into physical gold and silver. They'll even help move 22 00:01:13,760 --> 00:01:16,080 Speaker 1: your existing IRA or four oh one K out of 23 00:01:16,080 --> 00:01:19,200 Speaker 1: the volatile stock market into a precious metals IRA, and 24 00:01:19,280 --> 00:01:21,440 Speaker 1: they make it easy. They are the highest rated firm 25 00:01:21,440 --> 00:01:23,240 Speaker 1: in the country, with an A plus rating from the 26 00:01:23,280 --> 00:01:26,680 Speaker 1: Better Business Bureau and thousands of satisfied clients. And if 27 00:01:26,720 --> 00:01:28,680 Speaker 1: you call them right now, they will give you up 28 00:01:28,680 --> 00:01:31,160 Speaker 1: to fifteen hundred dollars of free silver on your first 29 00:01:31,240 --> 00:01:34,280 Speaker 1: qualifying order. So don't wait, call them now. Call eight 30 00:01:34,360 --> 00:01:38,360 Speaker 1: five five seven, six eight one eight eight three. That's 31 00:01:38,400 --> 00:01:41,480 Speaker 1: eight five five seven six eight one eight eight three, 32 00:01:41,680 --> 00:01:45,440 Speaker 1: or text cactus to six five five three two Again 33 00:01:45,480 --> 00:01:48,880 Speaker 1: that's eight five five seven six eight one eight eight 34 00:01:48,960 --> 00:01:52,320 Speaker 1: three or text cactus to six by five three two. 35 00:01:52,880 --> 00:01:55,880 Speaker 1: Today's episode is also brought to you by stamps dot Com. 36 00:01:55,920 --> 00:01:58,200 Speaker 1: If you've got a small business, you know that there's 37 00:01:58,200 --> 00:02:01,120 Speaker 1: nothing more valuable than your time, so stop wasting it 38 00:02:01,160 --> 00:02:03,800 Speaker 1: on trips to the post office. Stamps dot com makes 39 00:02:03,800 --> 00:02:06,120 Speaker 1: it easy to mail and ship right from your computer. 40 00:02:06,520 --> 00:02:09,160 Speaker 1: Save time and money. With stamps dot com, send letters 41 00:02:09,160 --> 00:02:13,239 Speaker 1: and packages for less with discounted rates from USPS UPS 42 00:02:13,280 --> 00:02:16,400 Speaker 1: and more. Since nineteen ninety eight, stamps dot com has 43 00:02:16,400 --> 00:02:20,320 Speaker 1: been an indispensable tool for nearly one million businesses. Stamps 44 00:02:20,360 --> 00:02:22,799 Speaker 1: dot Com brings the services of the US Postal Service 45 00:02:22,840 --> 00:02:26,200 Speaker 1: and UPS shipping right to your computer. Stamps dot Com 46 00:02:26,240 --> 00:02:28,239 Speaker 1: will make your life easier. All you need is a 47 00:02:28,280 --> 00:02:31,200 Speaker 1: computer and a standard printer, no special supplies or equipment. 48 00:02:31,440 --> 00:02:34,080 Speaker 1: Within minutes, you're up and running printing official postage for 49 00:02:34,160 --> 00:02:37,560 Speaker 1: any letter, any package, anywhere you want to send, and 50 00:02:37,680 --> 00:02:40,880 Speaker 1: you'll get excoolsive discounts on postage and shipping from USPS 51 00:02:40,919 --> 00:02:44,280 Speaker 1: and UPS. Once your mail is ready, you just schedule 52 00:02:44,320 --> 00:02:46,959 Speaker 1: a pickup or drop it off. No traffic, no lines, 53 00:02:47,400 --> 00:02:50,000 Speaker 1: so cut the confusion out of shipping. With stamps dot 54 00:02:50,080 --> 00:02:52,959 Speaker 1: COM's new Rate Advisor tool, you can also compare shipping 55 00:02:53,040 --> 00:02:55,840 Speaker 1: rates and timelines to easily find the best option, so 56 00:02:55,880 --> 00:02:57,840 Speaker 1: save time and money. With stamps dot com, there's no 57 00:02:57,960 --> 00:03:01,120 Speaker 1: risk and with our promo code Verdict, you get a 58 00:03:01,120 --> 00:03:03,440 Speaker 1: special offer that includes a four week trial plus free 59 00:03:03,480 --> 00:03:06,440 Speaker 1: postage and a digital scale. No long term commitments or contracts. 60 00:03:06,639 --> 00:03:09,040 Speaker 1: Just go to stamps dot com, click on the microphone 61 00:03:09,040 --> 00:03:11,720 Speaker 1: at the top of the homepage and type in Verdict 62 00:03:12,280 --> 00:03:15,560 Speaker 1: Welcome back to Verdict. I'm Michael Knowles, and we are 63 00:03:15,560 --> 00:03:18,960 Speaker 1: going to get into the legal arguments and the precedent 64 00:03:19,400 --> 00:03:22,280 Speaker 1: and Roe and Doe and Casey and all of the 65 00:03:23,160 --> 00:03:25,000 Speaker 1: law stuff that I don't really know anything about. But 66 00:03:25,080 --> 00:03:27,920 Speaker 1: something I do know a lot about is personality. And frankly, 67 00:03:27,960 --> 00:03:29,360 Speaker 1: I think what a lot of this case is going 68 00:03:29,400 --> 00:03:33,440 Speaker 1: to come down to are the justices. So last month 69 00:03:33,720 --> 00:03:37,680 Speaker 1: we heard the oral arguments where the lawyers made their case. Senator, 70 00:03:37,760 --> 00:03:40,640 Speaker 1: since you're the one who actually knows some of these people, 71 00:03:40,720 --> 00:03:43,680 Speaker 1: you have argued cases before the Supreme Court, what is 72 00:03:43,720 --> 00:03:48,840 Speaker 1: your take on the questions and reactions from the justices? Well, listen, 73 00:03:48,880 --> 00:03:52,400 Speaker 1: the short answer is, I'm quite optimistic and I am 74 00:03:52,520 --> 00:03:57,440 Speaker 1: very pleasantly surprised going into argument. I was worried about 75 00:03:57,440 --> 00:03:59,920 Speaker 1: this case, and I'm still worried, but I'm much more 76 00:04:00,200 --> 00:04:04,280 Speaker 1: optimistic today than I was before the argument. If you 77 00:04:04,480 --> 00:04:07,680 Speaker 1: look at the court right now, we've had nine justices 78 00:04:07,720 --> 00:04:12,160 Speaker 1: on the court, there are only two that I am 79 00:04:12,200 --> 00:04:18,000 Speaker 1: absolutely confident going into argument. We're going to Number one 80 00:04:18,160 --> 00:04:22,960 Speaker 1: vote to uphold the state law in question, the ban 81 00:04:23,040 --> 00:04:27,240 Speaker 1: on abortions after fifteen weeks. But number two, even more Fundamentally, 82 00:04:27,240 --> 00:04:30,839 Speaker 1: there are only two justices that I was certain we're 83 00:04:30,839 --> 00:04:35,760 Speaker 1: going to vote to overturn Roe versus Wade. Coming out 84 00:04:35,760 --> 00:04:37,880 Speaker 1: of the argument. I'm much more optimistic than that. The 85 00:04:38,320 --> 00:04:42,160 Speaker 1: two that I'm confident about are Justice Thomas on Justice Alito, 86 00:04:42,279 --> 00:04:45,080 Speaker 1: both of whom have been clear and explicit that they 87 00:04:45,120 --> 00:04:49,320 Speaker 1: believe Roe was wrongly decided and should be overturned. The 88 00:04:49,480 --> 00:04:54,000 Speaker 1: justices that I was far less confident about are Chief 89 00:04:54,040 --> 00:04:58,960 Speaker 1: Justice Roberts, and then the three Trump justices, Justice Gorsus, 90 00:04:59,040 --> 00:05:05,440 Speaker 1: Justice Kavanaugh, and Justice Barrett. Those are the justices really 91 00:05:05,480 --> 00:05:09,560 Speaker 1: that are in play. The remaining justices on the left, 92 00:05:09,880 --> 00:05:12,000 Speaker 1: their votes are clear. They're going to vote to strike 93 00:05:12,080 --> 00:05:15,200 Speaker 1: down the state law. They're going to vote to reaffirm 94 00:05:15,520 --> 00:05:21,000 Speaker 1: roversus Wade. There's no doubting where their votes are coming 95 00:05:21,040 --> 00:05:23,800 Speaker 1: out of the argument, though I'm actually quite encouraged. The 96 00:05:24,000 --> 00:05:30,520 Speaker 1: questions seem to lean quite heavily in the direction of 97 00:05:30,560 --> 00:05:35,000 Speaker 1: affirming the state law. So the good news is, at 98 00:05:35,000 --> 00:05:37,880 Speaker 1: this point, having listened to the argument, I would be 99 00:05:38,760 --> 00:05:43,600 Speaker 1: shocked and even astonished if the Supreme Court struck down 100 00:05:43,640 --> 00:05:47,240 Speaker 1: the state law prohibiting abortions after fifteen weeks. So that's 101 00:05:47,240 --> 00:05:51,280 Speaker 1: a big deal. That's a major victory. And I think 102 00:05:51,360 --> 00:05:55,039 Speaker 1: there is a very real possibility that this Court would 103 00:05:55,160 --> 00:05:58,279 Speaker 1: will do what the Court has been unwilling to do 104 00:05:58,400 --> 00:06:02,880 Speaker 1: for nearly fifty years, which is overturned Row versus Wade, 105 00:06:03,760 --> 00:06:07,839 Speaker 1: and returned the authority to make decisions and determinations and 106 00:06:07,960 --> 00:06:11,760 Speaker 1: laws concerning abortions, returned them to the states, and returned 107 00:06:11,800 --> 00:06:14,400 Speaker 1: them to the people. And it's worth noting at the 108 00:06:14,440 --> 00:06:21,359 Speaker 1: outset the consequences of overturning Row are not that abortion 109 00:06:21,480 --> 00:06:23,760 Speaker 1: is suddenly illegal. A lot of people don't understand. They 110 00:06:23,760 --> 00:06:26,359 Speaker 1: here overturn versus way, it kind of startles them. That 111 00:06:26,440 --> 00:06:29,800 Speaker 1: sounds like a sounds like an extreme and shocking thing. 112 00:06:31,080 --> 00:06:34,680 Speaker 1: For most of our country's history, abortion was a matter 113 00:06:34,760 --> 00:06:37,120 Speaker 1: that was regulated at the state level, and different states 114 00:06:37,160 --> 00:06:40,720 Speaker 1: could adopt different laws, and they did. And in nineteen 115 00:06:40,839 --> 00:06:44,800 Speaker 1: seventy three and Row versus Wade, the Supreme Court changed 116 00:06:44,880 --> 00:06:47,440 Speaker 1: all that and it struck down it actually struck down 117 00:06:47,480 --> 00:06:51,560 Speaker 1: Texas's law that protected the life of an unborn child, 118 00:06:52,160 --> 00:06:56,039 Speaker 1: and it issued a decision that I believe was lawless, 119 00:06:56,120 --> 00:06:59,039 Speaker 1: that that was wrong, that was not tethered to the Constitution. 120 00:07:00,040 --> 00:07:03,279 Speaker 1: As we've talked about a lot on this pod. The 121 00:07:03,360 --> 00:07:06,320 Speaker 1: book I wrote last fall, One Vote Away, How a 122 00:07:06,360 --> 00:07:09,000 Speaker 1: single Supreme Court seat can change history. There's an entire 123 00:07:09,080 --> 00:07:12,200 Speaker 1: chapter on that book focused on life, and it begins 124 00:07:12,200 --> 00:07:17,000 Speaker 1: with ro versus Wade. I think that decision profoundly and 125 00:07:17,160 --> 00:07:22,560 Speaker 1: perhaps irreparably politicize the Supreme Court, and it brought us 126 00:07:22,720 --> 00:07:29,240 Speaker 1: into this world of deeply political, nasty Supreme Court confirmation fights, 127 00:07:29,280 --> 00:07:35,520 Speaker 1: because if you have nine unelected lawyers decreeing the law 128 00:07:35,760 --> 00:07:40,640 Speaker 1: for three hundred and thirty million Americans and determining what 129 00:07:40,680 --> 00:07:42,760 Speaker 1: they can make rules about and what they can't, that 130 00:07:44,440 --> 00:07:50,160 Speaker 1: significantly compromised the independence and the integrity and the judicial 131 00:07:50,240 --> 00:07:53,360 Speaker 1: nature of the Court. I hope they overturn Row, and 132 00:07:53,400 --> 00:07:56,040 Speaker 1: I've got some real sense of optimism that they're going 133 00:07:56,040 --> 00:07:59,880 Speaker 1: to Senator. Before we get into it, I tell you, 134 00:08:00,120 --> 00:08:02,480 Speaker 1: I know that you're a constitutional scholar, you've argued before 135 00:08:02,520 --> 00:08:04,520 Speaker 1: the court, you're a senator. Me you know, I'm just 136 00:08:04,600 --> 00:08:07,320 Speaker 1: some guy. I've listened to the oral arguments, read the history, 137 00:08:07,520 --> 00:08:10,480 Speaker 1: but I am reliably informed. We are not allowed to 138 00:08:10,520 --> 00:08:13,000 Speaker 1: have an opinion on this matter because this is a 139 00:08:13,040 --> 00:08:16,239 Speaker 1: woman's issue, and all women love abortion, and all women 140 00:08:16,280 --> 00:08:19,480 Speaker 1: totally love Roe v. Wade. So, Liz, since you are 141 00:08:19,520 --> 00:08:21,920 Speaker 1: the only woman that we have for miles around here, 142 00:08:22,600 --> 00:08:25,160 Speaker 1: that's all true. We got to uphold row abortions great 143 00:08:25,240 --> 00:08:28,240 Speaker 1: and women need to shut up. Well, I can reliably 144 00:08:28,280 --> 00:08:31,559 Speaker 1: inform you, as a woman, Michael, that that is fake news, 145 00:08:31,600 --> 00:08:34,280 Speaker 1: that all women do not, like Roe v. Wade, do 146 00:08:34,320 --> 00:08:37,040 Speaker 1: not need abortion to succeed. But you actually bring up 147 00:08:37,040 --> 00:08:40,560 Speaker 1: an interesting point because listening to these arguments in front 148 00:08:40,600 --> 00:08:44,520 Speaker 1: of the Supreme Court, I was frankly surprised at how 149 00:08:44,600 --> 00:08:48,319 Speaker 1: weak the arguments from the pro abortion side was. They 150 00:08:48,400 --> 00:08:50,600 Speaker 1: essentially focus on two things. They focus on the very 151 00:08:50,679 --> 00:08:53,560 Speaker 1: unscientific argument I guess if you even want to call 152 00:08:53,600 --> 00:08:56,319 Speaker 1: it an argument, that this was about a woman's body, 153 00:08:56,440 --> 00:08:58,959 Speaker 1: instead of differentiating that, of course, the unborn child is 154 00:08:59,000 --> 00:09:02,120 Speaker 1: a separate body, that there are competing interests between that 155 00:09:02,240 --> 00:09:05,440 Speaker 1: child and that mother. But also in Senator, maybe you 156 00:09:05,480 --> 00:09:09,160 Speaker 1: can speak to this a little bit. They kept categorizing 157 00:09:09,280 --> 00:09:12,040 Speaker 1: Rowe as being the super precedent, that because it is 158 00:09:12,240 --> 00:09:15,679 Speaker 1: quote unquote settled law, that it simply cannot be overturned. 159 00:09:16,080 --> 00:09:17,920 Speaker 1: This is not true in the history of our nation. 160 00:09:18,880 --> 00:09:22,440 Speaker 1: Well it's not, and the Supreme Court has overturned a 161 00:09:22,480 --> 00:09:25,000 Speaker 1: lot of precedents over the two hundred plus years of 162 00:09:25,040 --> 00:09:28,800 Speaker 1: our nation's history. The justice that leaned in the hardest 163 00:09:28,880 --> 00:09:31,400 Speaker 1: on saying that was Justice Brier and Listen. He was 164 00:09:31,480 --> 00:09:36,720 Speaker 1: trying to find a way to save Rowe, and his argument, 165 00:09:37,679 --> 00:09:41,560 Speaker 1: his argument really really stemmed from the decision in Casey. 166 00:09:41,640 --> 00:09:44,480 Speaker 1: So a little bit of the history Rowe was nineteen 167 00:09:44,520 --> 00:09:49,480 Speaker 1: seventy three. It struck down essentially all the laws across 168 00:09:49,520 --> 00:09:54,040 Speaker 1: the country that banned abortion. It was a seven two decision. 169 00:09:54,080 --> 00:09:57,320 Speaker 1: It was written by Harry Blackman, who had been an 170 00:09:57,320 --> 00:10:03,559 Speaker 1: appointee of Richard Nixon and a Republican appointee. And Blackman 171 00:10:04,600 --> 00:10:07,920 Speaker 1: had previously been general counsel of the Mayo Clinic. And 172 00:10:08,320 --> 00:10:13,400 Speaker 1: Blackman was not a distinguished jurist. He was one of 173 00:10:13,440 --> 00:10:15,840 Speaker 1: the least distinguished members to ever serve on the Court. 174 00:10:15,880 --> 00:10:19,880 Speaker 1: And the Roversus weight opinion is a terrible opinion. It 175 00:10:20,400 --> 00:10:23,400 Speaker 1: doesn't derive from the Constitution, it barely purports to. And 176 00:10:23,679 --> 00:10:30,160 Speaker 1: Roversus Wade set up this this trimester formula. In the 177 00:10:30,200 --> 00:10:33,600 Speaker 1: first trimester, the state had almost no leeway regulating abortion, 178 00:10:33,640 --> 00:10:35,960 Speaker 1: and the second trimester they had more, and in the 179 00:10:36,040 --> 00:10:39,959 Speaker 1: third they had significantly more. That's that doesn't come from 180 00:10:39,960 --> 00:10:43,160 Speaker 1: the Constitution, doesn't come from the Bill of Rights, but 181 00:10:44,200 --> 00:10:50,040 Speaker 1: it was invented in roversus. Wade. Fast forward to nineteen 182 00:10:50,120 --> 00:10:53,480 Speaker 1: ninety two. Nineteen ninety two, You've had twelve years of 183 00:10:53,520 --> 00:10:58,560 Speaker 1: Reagan Bush. You've had multiple Republican justices appointed to the Court. 184 00:10:58,600 --> 00:11:01,200 Speaker 1: You had Sandra Day O'Connor appointed to the court. You 185 00:11:01,360 --> 00:11:06,240 Speaker 1: had Justice Scalia appointed to the court. You had Anthony 186 00:11:06,320 --> 00:11:09,880 Speaker 1: Kennedy appointed to the Court. You had David Suitor appointed 187 00:11:09,920 --> 00:11:17,520 Speaker 1: to the Court. And in nineteen ninety two, the decision 188 00:11:17,559 --> 00:11:20,680 Speaker 1: that everyone thought was going to overturn Roe versus Wade 189 00:11:20,840 --> 00:11:24,840 Speaker 1: was a decision called Casey. And at the time, you know, 190 00:11:24,840 --> 00:11:26,319 Speaker 1: it's a little bit like where we are now. It's 191 00:11:26,360 --> 00:11:29,840 Speaker 1: part of why conservatives are wary even though the argument 192 00:11:29,880 --> 00:11:34,240 Speaker 1: seems good. The argument seemed good, and Casey Casey concerned. 193 00:11:34,720 --> 00:11:37,280 Speaker 1: The state of Pennsylvania had a whole series of laws 194 00:11:37,280 --> 00:11:41,440 Speaker 1: they passed that were some fairly modest restrictions on abortion. So, 195 00:11:41,520 --> 00:11:46,000 Speaker 1: for example, Pennsylvania required parental consent for a minor to 196 00:11:46,000 --> 00:11:51,920 Speaker 1: get an abortion. Pennsylvania required informed consent before a woman 197 00:11:51,960 --> 00:11:54,960 Speaker 1: could get an abortion. Pennsylvania required a twenty four hour 198 00:11:55,080 --> 00:12:01,840 Speaker 1: waiting period. Pennsylvania also required spousal note of vacation, and 199 00:12:01,960 --> 00:12:05,000 Speaker 1: when the case went up there, almost every observer said, 200 00:12:05,080 --> 00:12:08,360 Speaker 1: rovers's way, it's going to be overturned. Well what happened. 201 00:12:08,400 --> 00:12:17,800 Speaker 1: It wasn't overturned Casey. Casey reaffirmed row and it upheld 202 00:12:18,080 --> 00:12:20,480 Speaker 1: most of the different Pennsylvania laws. So it upheld the 203 00:12:20,480 --> 00:12:24,400 Speaker 1: parental consent aspect, it upheld informed consent, it upheld the 204 00:12:24,440 --> 00:12:28,920 Speaker 1: twenty four hour waiting period, but it struck down spousal notification. 205 00:12:29,000 --> 00:12:33,080 Speaker 1: And in Casey, you had three Justices O'Connor, Kennedy and 206 00:12:33,160 --> 00:12:37,320 Speaker 1: Suitor who wrote this joint opinion, which is very strange. 207 00:12:37,400 --> 00:12:40,440 Speaker 1: Normally an opinion is signed by one justice. None of 208 00:12:40,440 --> 00:12:42,600 Speaker 1: them signed it. They wrote it together as a joint 209 00:12:42,600 --> 00:12:45,880 Speaker 1: opinion because they were I think, really trying to hide 210 00:12:45,960 --> 00:12:50,240 Speaker 1: from accountability for what they were saying. And they threw 211 00:12:50,320 --> 00:12:54,160 Speaker 1: out rows trimester system and they replaced it with a 212 00:12:54,160 --> 00:12:56,840 Speaker 1: new standard called undue burden. And we'll talk about that 213 00:12:56,880 --> 00:12:59,800 Speaker 1: more in a minute. But Casey talked a lot about 214 00:12:59,800 --> 00:13:03,760 Speaker 1: how Rowe was a super precedent, that that it had 215 00:13:03,760 --> 00:13:07,880 Speaker 1: a high threshold to be overturned, and so Justice Bryer 216 00:13:08,400 --> 00:13:14,480 Speaker 1: kept repeating the portions of the Casey opinion, saying Rowe 217 00:13:14,559 --> 00:13:17,160 Speaker 1: was a super precedent because he's trying very hard to 218 00:13:17,200 --> 00:13:20,640 Speaker 1: preserve it. Um. I'm not sure his arguments were very 219 00:13:20,640 --> 00:13:23,040 Speaker 1: persuasive to his colleagues, though. We actually have a lot 220 00:13:23,080 --> 00:13:26,880 Speaker 1: of great questions about this case, specifically from our Verdict 221 00:13:26,920 --> 00:13:29,800 Speaker 1: plus subscribers. People are very interested in the nitty gritty 222 00:13:29,800 --> 00:13:33,000 Speaker 1: the legality of this, not just the cultural aspect of abortion. 223 00:13:33,720 --> 00:13:36,120 Speaker 1: Before we get to that, we've compiled a bunch of 224 00:13:36,240 --> 00:13:39,280 Speaker 1: video clips or not video clips, audio clips from the 225 00:13:39,360 --> 00:13:42,440 Speaker 1: Supreme Court oral arguments to address some of these questions. 226 00:13:42,440 --> 00:13:45,120 Speaker 1: So I want to toss this to Michael Great, all right, Liz, 227 00:13:45,120 --> 00:13:47,160 Speaker 1: we'll get back to you a little bit with the mailbag. 228 00:13:47,280 --> 00:13:52,200 Speaker 1: And Senator, you've what you've laid out here has actually 229 00:13:52,679 --> 00:13:55,160 Speaker 1: it's made me even more confused. It's not your fault. 230 00:13:55,240 --> 00:13:58,120 Speaker 1: It's just the history of the way these decisions have 231 00:13:58,200 --> 00:14:01,640 Speaker 1: gone on at the Court. So we've got Row, we've 232 00:14:01,679 --> 00:14:04,120 Speaker 1: got Doe, which is different than Row, I take it, 233 00:14:04,520 --> 00:14:08,800 Speaker 1: and then later on we've got Casey. And all of 234 00:14:08,840 --> 00:14:13,360 Speaker 1: this affirms some right to an abortion, but the justification 235 00:14:13,440 --> 00:14:16,280 Speaker 1: for the right to an abortion kind of changes, I guess. Actually, 236 00:14:16,559 --> 00:14:20,720 Speaker 1: Justice Thomas, now in the Dabbs questioning, gets to the 237 00:14:20,720 --> 00:14:24,280 Speaker 1: heart of this question. He says, what right is this 238 00:14:24,400 --> 00:14:30,520 Speaker 1: really about? Take a lessen What constitutional right protects the 239 00:14:30,640 --> 00:14:36,600 Speaker 1: right to abortion? Is it privacy? Is it autonomy? What 240 00:14:36,600 --> 00:14:40,840 Speaker 1: would it be? It's liberty, your honor, It's the textual 241 00:14:40,840 --> 00:14:44,160 Speaker 1: protection in the fourteenth Amendment that a state can't deprive 242 00:14:44,240 --> 00:14:47,120 Speaker 1: a person of liberty without due process of law. And 243 00:14:47,200 --> 00:14:50,400 Speaker 1: the Court has interpreted liberty to include the right to 244 00:14:50,480 --> 00:14:53,840 Speaker 1: make family decisions and the right to physical autonomy, including 245 00:14:53,880 --> 00:14:57,520 Speaker 1: the right to end a previability pregnancy. So simple question 246 00:14:57,600 --> 00:14:59,960 Speaker 1: from Justice Thomas, what right are we talking about? It? 247 00:15:00,000 --> 00:15:01,680 Speaker 1: If I talk about the right to have a gun, 248 00:15:01,720 --> 00:15:03,320 Speaker 1: I can point to the Secondmendment. I say, there's my 249 00:15:03,400 --> 00:15:05,920 Speaker 1: right to have Again, what is the right is abortion? 250 00:15:05,960 --> 00:15:10,520 Speaker 1: And she says, no, it's it's liberty. In the fourteenth 251 00:15:10,520 --> 00:15:13,880 Speaker 1: the men men maybe applied differently depending on the case 252 00:15:13,880 --> 00:15:16,120 Speaker 1: you're talking about. So what, Senator, please help me? What 253 00:15:16,240 --> 00:15:17,760 Speaker 1: is she talking about? So let me say at the 254 00:15:17,800 --> 00:15:22,800 Speaker 1: outset that that I love Justice Thomas's voice, the deep, 255 00:15:23,720 --> 00:15:26,400 Speaker 1: gravelly voice, And I'll tell you I've I've been blessed. 256 00:15:26,680 --> 00:15:29,960 Speaker 1: I know Justice Thomas fairly well and spend time with him. 257 00:15:30,080 --> 00:15:33,760 Speaker 1: When he laughs, it is like Santa Clause. It is 258 00:15:33,760 --> 00:15:41,000 Speaker 1: the most unbelievably deep that that that is just spectacular, 259 00:15:41,040 --> 00:15:47,040 Speaker 1: and he is he is a true American hero. Um. 260 00:15:48,840 --> 00:15:51,720 Speaker 1: The reason he asked that question is because if you 261 00:15:51,760 --> 00:15:53,360 Speaker 1: look at the Constitution, if you look at the Bill 262 00:15:53,400 --> 00:15:55,200 Speaker 1: of Rights and you go look for the word abortion, 263 00:15:56,120 --> 00:15:59,640 Speaker 1: you don't see it. Um. If you look for pregnancy, 264 00:16:00,520 --> 00:16:07,160 Speaker 1: you don't see it. If you look for any authority 265 00:16:07,360 --> 00:16:13,200 Speaker 1: for restricting and restricting and preventing states from from protecting 266 00:16:13,280 --> 00:16:15,720 Speaker 1: unborn life, you don't see it. And there's a reason 267 00:16:15,760 --> 00:16:17,680 Speaker 1: for that, which is that many of the states did 268 00:16:17,720 --> 00:16:19,680 Speaker 1: so that that it had been the case for one 269 00:16:19,720 --> 00:16:21,880 Speaker 1: hundred and fifty years of our nation's history that the 270 00:16:22,000 --> 00:16:26,040 Speaker 1: states had the authority to prohibit abortion. You know the 271 00:16:26,120 --> 00:16:29,480 Speaker 1: hippocratic oath, you know the oath that doctors take. Every 272 00:16:29,520 --> 00:16:32,800 Speaker 1: doctor takes says I will not help a woman procure abortion. 273 00:16:34,240 --> 00:16:40,240 Speaker 1: So there had been centuries of legal precedent that the 274 00:16:40,560 --> 00:16:43,160 Speaker 1: states had the authority to do this. So how did 275 00:16:43,200 --> 00:16:45,320 Speaker 1: we get to row. Well, to understand how we get 276 00:16:45,320 --> 00:16:47,440 Speaker 1: to row, you have to get to it. You have 277 00:16:47,480 --> 00:16:50,240 Speaker 1: to start with a decision called Grizzwold versus Connecticut, which 278 00:16:50,240 --> 00:16:53,360 Speaker 1: was one of the precursors to Row. And it was 279 00:16:53,440 --> 00:16:56,400 Speaker 1: a manufactured case that actually came out of Yale Law School. 280 00:16:56,400 --> 00:17:00,120 Speaker 1: You're alma mater to teed up Grizzwold versus Connecticut. And 281 00:17:00,120 --> 00:17:03,880 Speaker 1: and it was a woman who went to purchase contraceptives 282 00:17:04,480 --> 00:17:09,000 Speaker 1: was denied the ability to purchase contraceptives pursuant to a 283 00:17:09,040 --> 00:17:12,439 Speaker 1: state law that was rarely, if ever enforced, But they 284 00:17:12,440 --> 00:17:14,359 Speaker 1: went and found someone to enforce it so that they 285 00:17:14,359 --> 00:17:18,399 Speaker 1: could tee up this test case. The Supreme Court in 286 00:17:18,440 --> 00:17:25,320 Speaker 1: Griswold versus Connecticut, struck down the prohibition on contraceptives. Look, 287 00:17:25,520 --> 00:17:29,119 Speaker 1: I think a prohibition on contraceptives is incredibly stupid. It 288 00:17:29,240 --> 00:17:33,440 Speaker 1: is very bad policy. I don't know any rational person 289 00:17:33,480 --> 00:17:37,720 Speaker 1: in this country who believes contraceptives should be illegal. Well, 290 00:17:37,720 --> 00:17:40,000 Speaker 1: we'll get into it lab. Sorry, we'll get into it later. Senator. 291 00:17:40,560 --> 00:17:43,480 Speaker 1: Let's go on. Even Michael Knowles, I don't think believes 292 00:17:43,520 --> 00:17:47,240 Speaker 1: that depends on what year you ask me, you know, 293 00:17:47,280 --> 00:17:53,720 Speaker 1: as a young man. Yes, but Griswold actually the reasoning 294 00:17:53,760 --> 00:17:55,639 Speaker 1: it it said, and this is where the Court got 295 00:17:55,680 --> 00:18:01,639 Speaker 1: a little metaphysical. It said, it was the first major 296 00:18:01,680 --> 00:18:04,200 Speaker 1: decision that created what's called the right to privacy, and 297 00:18:04,280 --> 00:18:06,840 Speaker 1: Justice Thomas in that clip refers to the right to privacy, 298 00:18:07,040 --> 00:18:10,920 Speaker 1: and the word privacy doesn't appear in the Constitution either. 299 00:18:11,000 --> 00:18:13,879 Speaker 1: But what the Court said is is the Court said, well, 300 00:18:15,359 --> 00:18:21,840 Speaker 1: the protections in the Bill of Rights have emanations. Basically, 301 00:18:21,880 --> 00:18:29,919 Speaker 1: they glow, and those emanations cast panumbras a pannumbras a 302 00:18:29,960 --> 00:18:35,880 Speaker 1: fancy word for a shadow. Now and within the pannumbras 303 00:18:36,040 --> 00:18:41,920 Speaker 1: from the emanations we find the right to privacy. Okay, 304 00:18:42,119 --> 00:18:47,320 Speaker 1: all right, fast forward to row. Within that right to privacy, 305 00:18:47,400 --> 00:18:51,960 Speaker 1: Justice Blackman wrote, the right that came from a pannumbra, 306 00:18:52,119 --> 00:18:54,680 Speaker 1: from an emanation. That, minds you, that rights in the 307 00:18:54,680 --> 00:18:58,320 Speaker 1: Bill of Rights are casting. Is where the right to 308 00:18:58,359 --> 00:19:02,240 Speaker 1: an abortion came from. One of the reasons why roversus Wade, 309 00:19:02,280 --> 00:19:05,760 Speaker 1: even when it came down, was almost universally ridiculed as 310 00:19:05,920 --> 00:19:11,720 Speaker 1: just almost incoherent, just just bad legal writing, not tied 311 00:19:11,760 --> 00:19:14,600 Speaker 1: to the Constitution. Even liberals, you know, Ruth Bader Ginsburg 312 00:19:14,680 --> 00:19:17,480 Speaker 1: was actually quite critical of the reasoning in roversus Wade. 313 00:19:17,640 --> 00:19:22,160 Speaker 1: She agreed with the outcome the reason. Justice Thomas asked 314 00:19:22,200 --> 00:19:25,840 Speaker 1: that as in Row Harry Blackman says, it comes from 315 00:19:25,840 --> 00:19:30,960 Speaker 1: the right to privacy, that's coming from the numbers of emanations. 316 00:19:31,080 --> 00:19:36,280 Speaker 1: Subsequent liberals have defended it as an autonomy interest and 317 00:19:36,320 --> 00:19:39,680 Speaker 1: a liberty interest. So these are all different ideas that 318 00:19:39,720 --> 00:19:44,240 Speaker 1: have been cast forth. Because abortion is not in the Constitution, 319 00:19:44,920 --> 00:19:47,640 Speaker 1: they're trying to find another way to find it in there. 320 00:19:47,720 --> 00:19:51,560 Speaker 1: And so, look, is there a liberty interest protected in 321 00:19:51,840 --> 00:19:56,080 Speaker 1: the Fifth Amendment and fourteenth Amendment? Absolutely, but they also 322 00:19:56,160 --> 00:19:59,399 Speaker 1: protect life and liberty. You're free to do what you wish, 323 00:19:59,520 --> 00:20:04,080 Speaker 1: but that restriction always has limitations when it impacts the 324 00:20:04,160 --> 00:20:09,280 Speaker 1: rights of another. And so I think it is a 325 00:20:10,640 --> 00:20:13,520 Speaker 1: too cute by half argument to say it is within 326 00:20:13,600 --> 00:20:20,240 Speaker 1: the liberty interest. And and but that I would say 327 00:20:20,359 --> 00:20:23,359 Speaker 1: is the more modern liberal argument for the right to 328 00:20:23,400 --> 00:20:27,080 Speaker 1: abortion is true to the extent they're trying to ground 329 00:20:27,119 --> 00:20:32,359 Speaker 1: it anywhere um that they they try to ground it 330 00:20:32,520 --> 00:20:41,800 Speaker 1: within a liberty interest. Although autonomy was the basis that 331 00:20:41,920 --> 00:20:50,480 Speaker 1: Justice Kennedy found for striking down Texas's law criminalizing homosexual sodomy, 332 00:20:50,520 --> 00:20:54,280 Speaker 1: and he talked about the right to autonomy. And in fact, 333 00:20:54,359 --> 00:20:57,280 Speaker 1: there's a passage that that Justice Scalia ridicules as the 334 00:20:57,359 --> 00:21:01,919 Speaker 1: sweet mystery of the universe passage where he says, I 335 00:21:01,960 --> 00:21:04,680 Speaker 1: can't quote it exactly, but for each of us, the 336 00:21:05,080 --> 00:21:09,000 Speaker 1: process of defining ourselves, our existence, and the sweet mystery 337 00:21:09,000 --> 00:21:12,040 Speaker 1: of the universe is at the core of humanity. It's 338 00:21:12,040 --> 00:21:16,600 Speaker 1: this like poetic gibberish. That's right, the right to define 339 00:21:16,800 --> 00:21:20,960 Speaker 1: our own concept of existence. And which if that is 340 00:21:21,000 --> 00:21:24,560 Speaker 1: the case, I do define myself as a professional Major 341 00:21:24,600 --> 00:21:28,119 Speaker 1: League baseball player. That is my right, Senator, and please, 342 00:21:28,200 --> 00:21:30,400 Speaker 1: I would appreciate if you would address me as such. Well, 343 00:21:30,440 --> 00:21:32,320 Speaker 1: And Michael Baseball had been very very good to me. 344 00:21:36,000 --> 00:21:39,320 Speaker 1: And that's from a Saturday Night Live before probably before 345 00:21:39,320 --> 00:21:42,000 Speaker 1: you were born, when I was just a glint in 346 00:21:42,040 --> 00:21:46,440 Speaker 1: my father's eye. That's true, but but about as coherent, 347 00:21:46,520 --> 00:21:49,040 Speaker 1: by the way, as Justice Kennedy's argument. And it's so 348 00:21:49,200 --> 00:21:51,760 Speaker 1: the case you were deciding as Lawrence v. Texas, which 349 00:21:52,280 --> 00:21:56,320 Speaker 1: strikes down laws against homosexual activity. And by the way, 350 00:21:56,359 --> 00:22:01,639 Speaker 1: to be clear, I think laws again homosexual activity every 351 00:22:01,640 --> 00:22:08,040 Speaker 1: bit as assinine as laws against contraceptives. I would emphatically 352 00:22:08,080 --> 00:22:11,280 Speaker 1: vote against those laws as a state legislators, as a 353 00:22:11,280 --> 00:22:13,480 Speaker 1: member of the Senate, I don't think government has any 354 00:22:13,480 --> 00:22:18,680 Speaker 1: business regulating in that instance the conduct of consenting adults. 355 00:22:18,720 --> 00:22:20,080 Speaker 1: I think you ought to be able to do what 356 00:22:20,520 --> 00:22:25,880 Speaker 1: you wish. But the reason Justice Thomas asked that question 357 00:22:26,040 --> 00:22:30,040 Speaker 1: is there sort of three different buckets from which different 358 00:22:30,040 --> 00:22:35,400 Speaker 1: people have sought to try to derive a right to abortion. Well, 359 00:22:35,440 --> 00:22:38,520 Speaker 1: and to your point on Lawrence View, Texas Senator Scalia 360 00:22:38,720 --> 00:22:41,040 Speaker 1: made this point. He said, there are plenty of things 361 00:22:41,119 --> 00:22:42,639 Speaker 1: that are bad. There are plenty of things that I 362 00:22:42,680 --> 00:22:44,840 Speaker 1: don't like, plenty of things that I do like and 363 00:22:44,840 --> 00:22:47,439 Speaker 1: that are good that are just simply not in the constitution. 364 00:22:47,480 --> 00:22:50,840 Speaker 1: He said, there can be things that are SBC stupid 365 00:22:51,240 --> 00:22:54,919 Speaker 1: but constitutional. And so as you're describing this right to 366 00:22:54,960 --> 00:22:58,760 Speaker 1: an abortion would appear to be a conclusion in search 367 00:22:58,800 --> 00:23:01,760 Speaker 1: of an argument, inclusion in search of evidence. And the 368 00:23:01,800 --> 00:23:05,480 Speaker 1: evidence keeps changing, and the arguments keep contradicting each other sometimes, 369 00:23:05,640 --> 00:23:08,080 Speaker 1: but they come down and they say there's a right 370 00:23:08,119 --> 00:23:10,080 Speaker 1: to an abortion, and they reaffirm it. So then the 371 00:23:10,160 --> 00:23:13,560 Speaker 1: question is, and this was a question that the judges 372 00:23:13,640 --> 00:23:17,480 Speaker 1: and the justices are dealing with, is what about starry decisives? 373 00:23:17,880 --> 00:23:22,520 Speaker 1: What about precedent. Let's say you've got a really bad decision. Well, 374 00:23:22,359 --> 00:23:25,359 Speaker 1: what if it's been on the books for fifty years, 375 00:23:25,400 --> 00:23:27,960 Speaker 1: doesn't it have to remain there? A Justice. Cavanaugh listed 376 00:23:28,000 --> 00:23:31,360 Speaker 1: a number of landmark cases in the Court's history that 377 00:23:31,560 --> 00:23:34,919 Speaker 1: we're not exactly settled law. Take a listen, and history 378 00:23:35,000 --> 00:23:38,199 Speaker 1: helps think about stary decisis as I've looked at it, 379 00:23:38,400 --> 00:23:42,119 Speaker 1: and the history of how the courts applied star decisis, 380 00:23:42,119 --> 00:23:46,840 Speaker 1: And when you really dig into it, history tells a 381 00:23:46,920 --> 00:23:50,440 Speaker 1: somewhat different story I think than is sometimes assumed. You 382 00:23:50,520 --> 00:23:53,800 Speaker 1: think about some of the most important cases, the most 383 00:23:53,800 --> 00:23:58,159 Speaker 1: consequential cases in this Court's history, there's a string of 384 00:23:58,200 --> 00:24:03,399 Speaker 1: them where the case is overruled. President Brown v. Board 385 00:24:04,640 --> 00:24:09,439 Speaker 1: outlawed separate butN equal. Baker versus car which set the 386 00:24:09,480 --> 00:24:13,400 Speaker 1: stage for one person, one vote, West Coast Hotel, which 387 00:24:13,440 --> 00:24:18,280 Speaker 1: recognized the state's authority to regulate business, Miranda versus Arizona, 388 00:24:18,320 --> 00:24:21,439 Speaker 1: which required police to give warnings when the right about 389 00:24:21,440 --> 00:24:23,680 Speaker 1: the right to remain silent and to have an attorney. 390 00:24:23,680 --> 00:24:28,640 Speaker 1: President to suspects and criminal custody Lawrence fee Texas said 391 00:24:28,640 --> 00:24:32,800 Speaker 1: that the state may not prohibit same sex conduct. Map 392 00:24:32,920 --> 00:24:36,560 Speaker 1: versus Ohio, which held that the exclusionary rule applies to 393 00:24:36,640 --> 00:24:40,560 Speaker 1: state criminal prosecutions to exclude evidence obtained in violation of 394 00:24:40,640 --> 00:24:45,200 Speaker 1: the Fourth Amendment Gideon versus Wainwright, which guaranteed the right 395 00:24:45,240 --> 00:24:49,280 Speaker 1: to counsel in criminal cases, or burgha. Fell which recognized 396 00:24:49,280 --> 00:24:52,679 Speaker 1: a constitutional right to same sex marriage. In each of 397 00:24:52,720 --> 00:24:56,520 Speaker 1: those cases, and that's a list, and I could go on, 398 00:24:57,920 --> 00:25:00,399 Speaker 1: and those are some of the most consequential horton in 399 00:25:00,400 --> 00:25:06,520 Speaker 1: the Court's history. The court overruled precedent. And it turns 400 00:25:06,560 --> 00:25:11,080 Speaker 1: out if the court in those cases had had listened 401 00:25:11,119 --> 00:25:13,680 Speaker 1: and they were presented in with arguments in those cases 402 00:25:14,280 --> 00:25:17,280 Speaker 1: adhere to precedent in Brown v. Board and here to 403 00:25:17,560 --> 00:25:21,960 Speaker 1: Plessy on West Coast Hotel, adhere to Atkins, and adhered 404 00:25:22,000 --> 00:25:25,959 Speaker 1: to Lochner. And if the Court had done that in 405 00:25:26,000 --> 00:25:30,840 Speaker 1: those cases, uh, you know, the country would be a 406 00:25:30,920 --> 00:25:35,240 Speaker 1: much different place. So Justice Kavanaugh is asking, Okay, you're 407 00:25:35,240 --> 00:25:37,960 Speaker 1: you're you don't have much of a legal or constitutional 408 00:25:38,040 --> 00:25:40,960 Speaker 1: argument for abortion. You're staking a lot of your argument 409 00:25:41,280 --> 00:25:44,960 Speaker 1: on starry decisive, on the idea that precedent, even even 410 00:25:45,000 --> 00:25:48,800 Speaker 1: a badly decided case, should should carry some weight. Well, 411 00:25:48,840 --> 00:25:52,280 Speaker 1: what about all these other cases that overruled precedent and 412 00:25:52,320 --> 00:25:56,000 Speaker 1: so so which is it. Are we going to celebrate 413 00:25:56,040 --> 00:25:59,600 Speaker 1: cases that overrule bad precedents or are we going to 414 00:25:59,640 --> 00:26:02,920 Speaker 1: just with precedence even if they were egregiously decided. Well, 415 00:26:02,960 --> 00:26:05,960 Speaker 1: that that question that you just played from Justice Kavanaugh 416 00:26:06,480 --> 00:26:10,080 Speaker 1: is probably the single most encouraging thing that happened at 417 00:26:10,080 --> 00:26:15,080 Speaker 1: the oral argument. I wrote at length in my book 418 00:26:15,080 --> 00:26:20,199 Speaker 1: One Vote Away that I was quite concerned about Justice 419 00:26:20,280 --> 00:26:24,000 Speaker 1: Kavanaugh and how he would rule on a challenge to Row. 420 00:26:24,080 --> 00:26:27,800 Speaker 1: And I was quite concerned about Justice Course which as well, 421 00:26:29,400 --> 00:26:34,680 Speaker 1: and but especially Kavanaugh. And basically, let me step back 422 00:26:34,720 --> 00:26:36,800 Speaker 1: for a second. What played out at the oral argument 423 00:26:36,920 --> 00:26:38,840 Speaker 1: is I listened to it and read through the transcript. 424 00:26:40,200 --> 00:26:44,959 Speaker 1: Was I think there are six votes to uphold the 425 00:26:45,040 --> 00:26:49,280 Speaker 1: state law, the ban on abortions after fifteen weeks. All 426 00:26:49,359 --> 00:26:51,520 Speaker 1: but the three liberals are going to vote, I believe 427 00:26:51,560 --> 00:26:54,720 Speaker 1: to uphold the law. Chief Justice Roberts, I believe does 428 00:26:54,760 --> 00:26:59,400 Speaker 1: not want to overrule Row. And at the argument he 429 00:26:59,600 --> 00:27:03,280 Speaker 1: was spending much of his time casting about for a 430 00:27:03,359 --> 00:27:08,440 Speaker 1: way can the Court do something smaller uphold the state 431 00:27:08,520 --> 00:27:14,800 Speaker 1: law but not overrule Roe versus Wade. And so he's 432 00:27:14,920 --> 00:27:17,879 Speaker 1: trying to find you've got three votes on one side 433 00:27:18,280 --> 00:27:21,720 Speaker 1: Roberts just needs one. He needs to get Kavanaugh or 434 00:27:21,760 --> 00:27:26,200 Speaker 1: Gorsuch or Barrett. So Roberts is hunting for one additional vote. 435 00:27:26,400 --> 00:27:30,639 Speaker 1: If Roberts gets one additional vote, Rowe won't be overturned. 436 00:27:30,760 --> 00:27:34,719 Speaker 1: And so the entire argument. And John Roberts, as you know, 437 00:27:34,840 --> 00:27:37,199 Speaker 1: is someone I know very very well. He liked me 438 00:27:37,359 --> 00:27:40,720 Speaker 1: clerk for Chief Justice Rehnquist. He was an extraordinarily talented 439 00:27:41,119 --> 00:27:47,480 Speaker 1: Supreme Court argument advocate. And so he's casting about for essentially, 440 00:27:47,520 --> 00:27:50,879 Speaker 1: don't we can just uphold this law and we don't 441 00:27:50,880 --> 00:27:55,520 Speaker 1: have to go so far as overturning Rowe. That question 442 00:27:55,640 --> 00:27:59,440 Speaker 1: from Kavanaugh is really encouraging because because he's going through 443 00:27:59,760 --> 00:28:04,480 Speaker 1: being landmark decisions of the Supreme Court. Most of those 444 00:28:04,520 --> 00:28:06,680 Speaker 1: decisions I talk about in the book One Vote Away. 445 00:28:06,720 --> 00:28:08,280 Speaker 1: I go into the history of a lot of those 446 00:28:08,280 --> 00:28:12,719 Speaker 1: different decisions and how they overturned precedent. The biggest one, 447 00:28:13,200 --> 00:28:16,119 Speaker 1: Brown versus Board of Education. Brown versus Board of Education 448 00:28:16,160 --> 00:28:22,960 Speaker 1: decided nineteen fifty four struck down segregated public schools, and 449 00:28:23,040 --> 00:28:26,800 Speaker 1: it overturned a decision called Plessy versus Ferguson and Plessy. 450 00:28:26,880 --> 00:28:29,359 Speaker 1: It's one of the most disgraceful decisions in the history 451 00:28:29,359 --> 00:28:33,880 Speaker 1: of the Supreme Court. The Court upheld something called separate 452 00:28:33,880 --> 00:28:37,639 Speaker 1: but equal. It concluded that even though the Constitution gives 453 00:28:37,680 --> 00:28:41,280 Speaker 1: everyone equal protection of the laws, that it was consistent 454 00:28:41,320 --> 00:28:44,280 Speaker 1: with a constitution for the government to say one school 455 00:28:44,280 --> 00:28:47,000 Speaker 1: for black children, one school for white children, one water 456 00:28:47,080 --> 00:28:52,480 Speaker 1: Fountain and Brown overturned Plessy. It was absolutely the right 457 00:28:52,520 --> 00:28:57,240 Speaker 1: thing to do. Plessy was an abomination. You know, Justice 458 00:28:57,360 --> 00:29:00,800 Speaker 1: Kavanaugh began with Brown and went through a whole litany 459 00:29:00,840 --> 00:29:04,480 Speaker 1: of big, major cases that were overturning precedents. And the 460 00:29:04,560 --> 00:29:08,320 Speaker 1: reason that's encouraging as you listen to that question, it 461 00:29:08,520 --> 00:29:12,840 Speaker 1: suggests pretty strongly that Justice Kavanaugh is open to and 462 00:29:13,000 --> 00:29:19,200 Speaker 1: leaning towards, overturning Row. That's a big, big deal, particularly 463 00:29:19,280 --> 00:29:23,920 Speaker 1: because the questioning from Gorsten and Barrett was encouraging as well. 464 00:29:24,080 --> 00:29:28,440 Speaker 1: So if I were counting noses right now, we may 465 00:29:28,480 --> 00:29:32,560 Speaker 1: well get to five on getting the Court out of 466 00:29:32,600 --> 00:29:36,200 Speaker 1: the business of legislating on questions of abortion, and we 467 00:29:36,280 --> 00:29:39,480 Speaker 1: may well send that back to the States instead, which 468 00:29:39,520 --> 00:29:43,280 Speaker 1: is where where it has always belonged under the Constitution. Well, 469 00:29:43,280 --> 00:29:45,360 Speaker 1: that is that is what I want to get into, 470 00:29:45,760 --> 00:29:49,040 Speaker 1: beyond the legal arguments which I think you have done 471 00:29:49,080 --> 00:29:52,280 Speaker 1: as good a job as anybody possibly can to helping 472 00:29:52,280 --> 00:29:55,480 Speaker 1: me to understand what the pro abortion side is arguing here, 473 00:29:55,560 --> 00:29:57,800 Speaker 1: and it's it's not very coherent, and even many people 474 00:29:57,840 --> 00:30:00,440 Speaker 1: who support abortion have agreed that the way the cases 475 00:30:00,480 --> 00:30:03,560 Speaker 1: were decided doesn't make any sense and the legal logic 476 00:30:03,680 --> 00:30:06,000 Speaker 1: is not really there. But now we're talking about people, 477 00:30:06,200 --> 00:30:09,040 Speaker 1: we're talking about votes. Who actually is going to have 478 00:30:09,080 --> 00:30:14,080 Speaker 1: the guts to do this? Thomas, he's going to overrule 479 00:30:14,160 --> 00:30:18,200 Speaker 1: Row one hundred percent. Alito, he's going to overrule Row. Almost. Yeah, 480 00:30:18,240 --> 00:30:20,960 Speaker 1: you've got the three liberals, they're certainly not. Then you've 481 00:30:20,960 --> 00:30:23,400 Speaker 1: got maybe a fourth liberal, chie Chief Justice John Roberts, 482 00:30:23,400 --> 00:30:27,080 Speaker 1: who probably, as you think, does not want to overrule Row. 483 00:30:27,720 --> 00:30:30,840 Speaker 1: Kavanaugh you like his arguments. So you're also saying then 484 00:30:31,040 --> 00:30:33,960 Speaker 1: that Barrett and Gorsets, you liked what they were asking. 485 00:30:34,000 --> 00:30:36,480 Speaker 1: You felt that the way they were approaching the oral 486 00:30:36,600 --> 00:30:41,000 Speaker 1: arguments showed that they were leaning toward overruling. I did 487 00:30:41,160 --> 00:30:44,600 Speaker 1: that they're questioning was quite good. One of the things 488 00:30:45,760 --> 00:30:47,880 Speaker 1: that they emphasize as the point I made that if 489 00:30:47,960 --> 00:30:53,320 Speaker 1: Row is overturned, it doesn't immediately ban abortion nationwide. It 490 00:30:53,360 --> 00:30:55,560 Speaker 1: instead leaves it to the states. And by the way, 491 00:30:55,760 --> 00:30:58,520 Speaker 1: there are a bunch of blue states in which abortions 492 00:30:58,600 --> 00:31:02,120 Speaker 1: will still be widely of ailable, you know, New York, California. 493 00:31:02,200 --> 00:31:05,560 Speaker 1: Nobody thinks the state legislatures in those states are going 494 00:31:05,600 --> 00:31:10,000 Speaker 1: to suddenly wake up tomorrow and ban or even significantly 495 00:31:10,040 --> 00:31:13,840 Speaker 1: restrict abortion. You and I would hope and pray that 496 00:31:13,920 --> 00:31:18,520 Speaker 1: they would, But as a political reality, that's not happening, 497 00:31:18,640 --> 00:31:22,200 Speaker 1: even without Rovers's weight on the books. What we would 498 00:31:22,320 --> 00:31:26,120 Speaker 1: see instead is each state adopting different standards, and there 499 00:31:26,120 --> 00:31:29,280 Speaker 1: would be a variety of them. And you know, Justice 500 00:31:29,320 --> 00:31:31,880 Speaker 1: Gorsuch one of the reasons I was very encouraged Gorsuch. 501 00:31:31,920 --> 00:31:35,280 Speaker 1: Gors It's a very smart lawyer, and he pressed the 502 00:31:35,400 --> 00:31:45,000 Speaker 1: lawyers on. Okay, so to uphold the state law, rowe 503 00:31:45,040 --> 00:31:49,800 Speaker 1: had a standard it made up of viability that basically said, 504 00:31:49,840 --> 00:31:53,520 Speaker 1: before the unborn child is viable can live outside the womb. 505 00:31:55,240 --> 00:31:58,080 Speaker 1: Before the unborn child is viable, the state can do 506 00:31:58,280 --> 00:32:01,280 Speaker 1: very very little to protect life of the unborn child. 507 00:32:01,440 --> 00:32:05,920 Speaker 1: After viability, the state can do more. Okay, Justice Blackman 508 00:32:06,040 --> 00:32:08,320 Speaker 1: made that up, And in fact, there's an interesting exchange 509 00:32:08,320 --> 00:32:12,560 Speaker 1: where Chief Justice Roberts notes that in the Blackman papers. 510 00:32:12,600 --> 00:32:14,640 Speaker 1: So this is after he retired as a justice, he 511 00:32:14,680 --> 00:32:18,600 Speaker 1: released his papers, his notes on writing Roversus Weight, and 512 00:32:18,640 --> 00:32:22,080 Speaker 1: he admits in his notes that viability was just a 513 00:32:22,160 --> 00:32:24,360 Speaker 1: concept he made up from when he worked at the 514 00:32:24,400 --> 00:32:27,080 Speaker 1: Mayo Clinic and had nothing to do with the Constitution. 515 00:32:27,120 --> 00:32:29,240 Speaker 1: It just he pulled it out of his rear end 516 00:32:29,880 --> 00:32:33,280 Speaker 1: and invented it. And it's it's it's a funny little 517 00:32:33,320 --> 00:32:35,960 Speaker 1: exchange because Roberts is like, wow, this is sort of 518 00:32:36,000 --> 00:32:39,200 Speaker 1: an odd source, the Blackman papers, but I guess they're there, 519 00:32:39,720 --> 00:32:42,480 Speaker 1: and he admits it's made up. And what Roberts is 520 00:32:42,520 --> 00:32:48,640 Speaker 1: pushing for so he's to uphold the state statute. Here 521 00:32:48,720 --> 00:32:52,600 Speaker 1: you have to reject viability because viability is twenty four 522 00:32:52,680 --> 00:32:55,640 Speaker 1: to twenty six weeks, not fifteen weeks. And right now, 523 00:32:55,720 --> 00:33:00,600 Speaker 1: scientifically a fifteen week unborn child can't live of outside 524 00:33:00,640 --> 00:33:02,880 Speaker 1: the mother's womb. And there's another issue, which is that 525 00:33:03,280 --> 00:33:07,040 Speaker 1: viability does move, Yes, he moves with scientific advancements. So 526 00:33:08,000 --> 00:33:11,000 Speaker 1: whereas a baby could previously could not survive before twenty 527 00:33:11,040 --> 00:33:13,560 Speaker 1: four weeks, now babies can survive at twenty one or 528 00:33:13,560 --> 00:33:16,480 Speaker 1: even twenty weeks. And what's the argument that's being made 529 00:33:16,560 --> 00:33:19,560 Speaker 1: for the Mississippi law is that the baby cannot survive 530 00:33:19,600 --> 00:33:22,120 Speaker 1: at fifteen weeks. But he looks like a baby. The 531 00:33:22,160 --> 00:33:24,240 Speaker 1: baby's got all his little baby parts, He's got his 532 00:33:24,280 --> 00:33:26,960 Speaker 1: little fingers and his little toes. He he seems to 533 00:33:27,000 --> 00:33:30,600 Speaker 1: have all the features of what we would call a baby. 534 00:33:31,040 --> 00:33:33,720 Speaker 1: But because he doesn't meet that standard, you have to 535 00:33:34,560 --> 00:33:36,760 Speaker 1: you have to change the standard. The standard that you 536 00:33:37,280 --> 00:33:40,360 Speaker 1: observe was just pulled out of thin air. Rovers's way 537 00:33:40,400 --> 00:33:43,840 Speaker 1: to establish the trimester system, which Justice Black been made 538 00:33:43,920 --> 00:33:50,080 Speaker 1: up in Casey. The joint opinion, the opinion that was 539 00:33:50,080 --> 00:33:57,000 Speaker 1: written by Kennedy and O'Connor and Suitor throughout the trimester 540 00:33:57,080 --> 00:33:59,280 Speaker 1: system said it's made up. It's no longer the law, 541 00:33:59,280 --> 00:34:02,200 Speaker 1: and so it actually overruled part of Row. It reaffirmed Row, 542 00:34:02,280 --> 00:34:06,200 Speaker 1: but it throughout part of ROW, and it invented a 543 00:34:06,240 --> 00:34:10,200 Speaker 1: brand new test. And the brand new test was that 544 00:34:11,040 --> 00:34:14,640 Speaker 1: states can have restrictions on abortions, but they cannot have 545 00:34:15,400 --> 00:34:19,080 Speaker 1: an undue burden on the right to abortion. So they 546 00:34:19,080 --> 00:34:21,479 Speaker 1: can apparently have a due burden, but not an undue burden. 547 00:34:22,840 --> 00:34:25,640 Speaker 1: And undue burden is not a term found anywhere in 548 00:34:25,680 --> 00:34:28,879 Speaker 1: the Constitution. It's not a term that means anything in law. 549 00:34:29,239 --> 00:34:33,080 Speaker 1: It's just something they made up. No undue burdens, which 550 00:34:33,120 --> 00:34:36,279 Speaker 1: puts the court due burdens fine in the business of 551 00:34:36,360 --> 00:34:42,320 Speaker 1: measuring how much of a burden is due. So Roberts 552 00:34:42,440 --> 00:34:48,400 Speaker 1: was basically arguing at the oral argument, well, viability was 553 00:34:48,440 --> 00:34:51,040 Speaker 1: an arbitrary, made up line. Even the Blackman papers tell 554 00:34:51,120 --> 00:34:54,520 Speaker 1: us that, so if we jettison viability, we can uphold 555 00:34:54,520 --> 00:34:58,279 Speaker 1: the Mississippi law. Right, yes, so we don't have to 556 00:34:58,280 --> 00:35:01,480 Speaker 1: overturn Row or Casey because if we jettison viability, we 557 00:35:01,520 --> 00:35:07,080 Speaker 1: can simply say this is fine. Gorsitch was pressing hard 558 00:35:09,200 --> 00:35:15,000 Speaker 1: on the defenders of abortion, saying, Okay, if viability is 559 00:35:15,080 --> 00:35:18,879 Speaker 1: not the line, how do we draw a line? How 560 00:35:18,880 --> 00:35:22,520 Speaker 1: do we draw a workable line? This is a fifteen 561 00:35:22,560 --> 00:35:27,080 Speaker 1: week prohibition, how about twelve weeks? How about ten? How 562 00:35:27,080 --> 00:35:31,560 Speaker 1: about nine? Like, how do we draw And what was 563 00:35:31,640 --> 00:35:35,120 Speaker 1: interesting is the defenders of abortion the Biden administration said yeah, 564 00:35:35,160 --> 00:35:38,239 Speaker 1: it's basically unworkable. We can't draw those lines. There's no ways. 565 00:35:38,440 --> 00:35:42,200 Speaker 1: Courts are just making it up to draw those lines. 566 00:35:43,160 --> 00:35:46,840 Speaker 1: And what's fascinating about the look Gorsitch is pushing on 567 00:35:47,000 --> 00:35:52,160 Speaker 1: that because if they admit there's no workable legal standard. 568 00:35:53,040 --> 00:35:57,200 Speaker 1: That is one of the major factors under starring decisive 569 00:35:57,239 --> 00:36:01,520 Speaker 1: star decisis is the Latin word for respecting precedent. That's 570 00:36:01,560 --> 00:36:04,239 Speaker 1: one of the major factors for overturning a precedent. So 571 00:36:04,239 --> 00:36:12,200 Speaker 1: when Gorseitch is asking without viability, is the legal rule unworkable? 572 00:36:12,320 --> 00:36:18,520 Speaker 1: What he's saying is and therefore, shouldn't we overturn Row 573 00:36:18,600 --> 00:36:22,640 Speaker 1: versus Wade? In other words, is there not a middle ground? 574 00:36:22,719 --> 00:36:24,680 Speaker 1: Don't we have to go all the way? And gorse 575 00:36:25,320 --> 00:36:28,239 Speaker 1: was pretty aggressive on that, and Barrett was pretty good 576 00:36:28,280 --> 00:36:33,279 Speaker 1: on that, and so that combination led me. I was 577 00:36:33,440 --> 00:36:36,720 Speaker 1: quite skeptical going into arguments that there were five votes 578 00:36:36,760 --> 00:36:42,000 Speaker 1: to overturn Row. I'm pretty hopeful right now. So before 579 00:36:42,040 --> 00:36:45,759 Speaker 1: we get to mailback, as always we're running late, I 580 00:36:45,920 --> 00:36:48,520 Speaker 1: have to touch on what I think was the most 581 00:36:48,560 --> 00:36:51,680 Speaker 1: persuasive argument made on the pro abortion side. It was 582 00:36:51,719 --> 00:36:53,839 Speaker 1: not made by one of the lawyers. It was made 583 00:36:53,840 --> 00:36:57,840 Speaker 1: by one of the judges, Sonya Sodomyor, who said, if 584 00:36:58,200 --> 00:37:03,839 Speaker 1: you overrule Row versus how will we ever get the 585 00:37:03,960 --> 00:37:07,520 Speaker 1: stench of politicization out of the court and take a listen, 586 00:37:07,680 --> 00:37:15,359 Speaker 1: will this institution survive the stench that this creates in 587 00:37:15,400 --> 00:37:24,120 Speaker 1: the public perception that the Constitution and it's reading are 588 00:37:24,200 --> 00:37:26,960 Speaker 1: just political acts. Senator, how are you going to get 589 00:37:26,960 --> 00:37:29,959 Speaker 1: the stench out of the court, Well, you know, they're 590 00:37:30,000 --> 00:37:33,560 Speaker 1: the ones that put the stench there. It was, and 591 00:37:33,719 --> 00:37:36,759 Speaker 1: Row played a big part in putting the stench there. 592 00:37:37,160 --> 00:37:41,880 Speaker 1: Ever since that day, the court has been deeply political, 593 00:37:42,040 --> 00:37:44,680 Speaker 1: and it is why. And I got to say, you 594 00:37:44,760 --> 00:37:51,880 Speaker 1: listen to the argument. Justice Sotobayor was relentless defending Rowe, 595 00:37:51,880 --> 00:37:55,880 Speaker 1: defending Casey. She she was fighting, to be honest, she 596 00:37:56,000 --> 00:37:58,680 Speaker 1: was a better advocate than either of the two lawyers 597 00:37:58,760 --> 00:38:04,520 Speaker 1: standing at the podium arguing for abortion. Sodomayor was relentless. 598 00:38:04,600 --> 00:38:07,120 Speaker 1: Now you also saw Briar. Briar does it more as 599 00:38:07,120 --> 00:38:10,560 Speaker 1: a law professor, more in the abstract. And you saw Kagan. 600 00:38:10,719 --> 00:38:15,640 Speaker 1: Kagan is the best litigator of the three liberals, and 601 00:38:15,719 --> 00:38:19,680 Speaker 1: so she was trying to find ways to push and 602 00:38:20,160 --> 00:38:24,759 Speaker 1: she recognizes. I think Kagan recognizes this law is going 603 00:38:24,840 --> 00:38:29,400 Speaker 1: to be upheld. But I think Kagan is quite interested 604 00:38:29,520 --> 00:38:36,960 Speaker 1: in who can we pick off Kavanaugh, Gorsich, Barrett to 605 00:38:37,080 --> 00:38:40,640 Speaker 1: join with Roberts and don't overturn Row. And so Kagan 606 00:38:40,760 --> 00:38:43,320 Speaker 1: was very focused on that, and that's the question to 607 00:38:43,480 --> 00:38:46,640 Speaker 1: one of the three go for the middle ground or not. 608 00:38:47,400 --> 00:38:53,120 Speaker 1: Sodomayor gave a speech that frankly, is not all that 609 00:38:53,280 --> 00:38:55,879 Speaker 1: different in her questions from what would be given by 610 00:38:55,920 --> 00:38:58,880 Speaker 1: Elizabeth Warren or Maizie Harrono in the Senate. It was 611 00:38:58,920 --> 00:39:06,000 Speaker 1: a political speech because Withrow, the Court jumped emphatically into 612 00:39:06,040 --> 00:39:09,040 Speaker 1: the political sphere rather than the legal and judicial sphere, 613 00:39:09,440 --> 00:39:11,719 Speaker 1: which is one of the biggest reasons why I think 614 00:39:11,760 --> 00:39:16,160 Speaker 1: the Court should return it to the political sphere and 615 00:39:16,239 --> 00:39:18,120 Speaker 1: let the people decide. And by the way, one of 616 00:39:18,160 --> 00:39:25,000 Speaker 1: the reasons abortion is so contentious so angry is because 617 00:39:25,000 --> 00:39:29,000 Speaker 1: there's no outlet. Listen, we disagree, and abortion is a 618 00:39:29,080 --> 00:39:34,239 Speaker 1: personal it is an emotional it is the feelings on 619 00:39:34,280 --> 00:39:36,400 Speaker 1: both sides are genuine. They're not making it up that 620 00:39:36,680 --> 00:39:40,680 Speaker 1: you know, both sides really really believe it. Normally, in 621 00:39:40,719 --> 00:39:43,600 Speaker 1: the democratic process, there's a safety valve to work that 622 00:39:43,600 --> 00:39:45,520 Speaker 1: out because you can argue back and forth, and you 623 00:39:45,520 --> 00:39:48,200 Speaker 1: can try to persuade each other, and sometimes you can 624 00:39:48,200 --> 00:39:52,160 Speaker 1: reach middle grounds, and all of that makes our democracy work. 625 00:39:52,760 --> 00:39:55,839 Speaker 1: But when you have nine unelected judges say I don't 626 00:39:55,880 --> 00:39:59,400 Speaker 1: give a damn what you think about it. I'm smarter 627 00:39:59,520 --> 00:40:02,239 Speaker 1: than you are, and we know better, and we're going 628 00:40:02,320 --> 00:40:04,799 Speaker 1: to take it away from you. It produces the kind 629 00:40:04,800 --> 00:40:09,319 Speaker 1: of intense division that we've seen, and based on this 630 00:40:09,440 --> 00:40:12,560 Speaker 1: oral argument, I think we have a real chance of 631 00:40:12,680 --> 00:40:16,400 Speaker 1: seeing the end of an era that was, as you 632 00:40:16,520 --> 00:40:19,680 Speaker 1: put it, a grievous error. Well, in the spirit of 633 00:40:19,960 --> 00:40:22,600 Speaker 1: hearing from the people and making their voices heard, we 634 00:40:22,640 --> 00:40:24,200 Speaker 1: should get to the mail back. So let's bring our 635 00:40:24,239 --> 00:40:26,879 Speaker 1: friend Liz back. Liz, what do you have for us? Well, 636 00:40:26,880 --> 00:40:29,080 Speaker 1: A lot of people, a lot of our subscribers, a 637 00:40:29,120 --> 00:40:31,359 Speaker 1: lot of our friends on Verdict Plus, asked about this 638 00:40:31,400 --> 00:40:34,120 Speaker 1: case specifically. I think they're going to be just enthralled 639 00:40:34,160 --> 00:40:38,560 Speaker 1: to listen to this legal breakdown. If you aren't already 640 00:40:38,640 --> 00:40:41,600 Speaker 1: a subscriber on Verdict Plus, join us. It's Verdict with 641 00:40:41,640 --> 00:40:44,720 Speaker 1: Ted Cruise dot Com slash plus. If you're not already 642 00:40:44,760 --> 00:40:46,440 Speaker 1: a part of the community, now's the time to jump 643 00:40:46,480 --> 00:40:48,600 Speaker 1: on it. We've extended our sale into the new year. 644 00:40:48,640 --> 00:40:52,160 Speaker 1: Between now in January fifteenth, you can become a Verdict 645 00:40:52,280 --> 00:40:56,719 Speaker 1: Plus subscriber for just fifty six dollars for an annual subscription. 646 00:40:56,760 --> 00:40:59,080 Speaker 1: That's fifty six dollars. This is the cheapest price you'll 647 00:40:59,120 --> 00:41:00,759 Speaker 1: ever see. So now is the time to do this. 648 00:41:01,000 --> 00:41:05,600 Speaker 1: Go to verdict with Ted Cruz dot com slash plus. So, Senator, 649 00:41:05,680 --> 00:41:07,600 Speaker 1: the first question I want to ask is from someone 650 00:41:07,600 --> 00:41:12,120 Speaker 1: whose username is twin sister. She says, why hasn't anyone 651 00:41:12,160 --> 00:41:15,359 Speaker 1: on the pro life side argued, if fetus is a 652 00:41:15,400 --> 00:41:19,560 Speaker 1: person and therefore entitled to due process, as the Fifth 653 00:41:19,560 --> 00:41:23,440 Speaker 1: and Fourteenth Amendments mandate, before depriving him of life, shouldn't 654 00:41:23,440 --> 00:41:27,319 Speaker 1: the onboard child be given the equal protection under the law. So, look, 655 00:41:27,320 --> 00:41:30,200 Speaker 1: that is a very good question, and it is a 656 00:41:30,280 --> 00:41:35,279 Speaker 1: question that is debated in legal circles. You are right 657 00:41:35,400 --> 00:41:38,440 Speaker 1: that the Constitution, the Fifth and fourteenth Amendments both protect 658 00:41:40,040 --> 00:41:42,359 Speaker 1: the rights to life, liberty, and property. That you can't 659 00:41:42,360 --> 00:41:45,600 Speaker 1: be deprived of any of the three without due process 660 00:41:45,640 --> 00:41:49,279 Speaker 1: of law. There's another decision of the Supreme Court called 661 00:41:49,320 --> 00:41:53,360 Speaker 1: caroline Products, and in Carolyne Products footnote four and lawyers 662 00:41:53,360 --> 00:41:56,680 Speaker 1: are weird because footnote four of Carolene Products is actually 663 00:41:56,680 --> 00:42:01,480 Speaker 1: a thing that lawyers refer to. It describes that the 664 00:42:01,600 --> 00:42:06,320 Speaker 1: protections of the due process clause and of equal protection 665 00:42:06,520 --> 00:42:13,560 Speaker 1: are more significant for what discreet and insular minorities. So 666 00:42:13,600 --> 00:42:16,840 Speaker 1: that's the phrase and footnote for of Carolyn Products. Discreet 667 00:42:16,880 --> 00:42:22,040 Speaker 1: and insular minorities mean minorities that are readily identifiable, that 668 00:42:22,080 --> 00:42:25,360 Speaker 1: are insult In other words, they're weaker and can't protect themselves. 669 00:42:25,360 --> 00:42:28,000 Speaker 1: And what Carolyn products that is. Look, they can't use 670 00:42:28,040 --> 00:42:31,400 Speaker 1: the democratic process to protect themselves because they're discreet and 671 00:42:31,400 --> 00:42:34,839 Speaker 1: insult and minorities, and so the constitutional protections are more 672 00:42:35,160 --> 00:42:37,719 Speaker 1: robust concerning them. And there have been legal scholars who 673 00:42:37,719 --> 00:42:41,080 Speaker 1: have pointed out it is difficult to imagine a more 674 00:42:41,160 --> 00:42:45,759 Speaker 1: discreet and insular minority than an unborn child, who by 675 00:42:45,840 --> 00:42:49,880 Speaker 1: definition cannot protect herself for himself and the political process, 676 00:42:50,440 --> 00:42:53,120 Speaker 1: you know, Reagan famously equipped. You know, I notice all 677 00:42:53,160 --> 00:42:57,000 Speaker 1: the people in favor of abortion have already been born, 678 00:42:58,480 --> 00:43:01,440 Speaker 1: and the unborn should are not given a voice in this. 679 00:43:02,280 --> 00:43:05,400 Speaker 1: That is certainly a legal argument one can make. It 680 00:43:05,560 --> 00:43:08,640 Speaker 1: is not an argument the Court has ever gone so 681 00:43:08,680 --> 00:43:13,200 Speaker 1: far as to embrace or suggest, and look, the consequence 682 00:43:13,239 --> 00:43:17,319 Speaker 1: of that argument would be a Supreme Court decision protecting 683 00:43:17,360 --> 00:43:21,040 Speaker 1: the right to life across the country. There are none 684 00:43:21,040 --> 00:43:23,440 Speaker 1: of the nine justices on the Court who have suggested 685 00:43:23,480 --> 00:43:26,080 Speaker 1: they would go that far, each of them has said 686 00:43:26,560 --> 00:43:30,759 Speaker 1: the Constitution is silent on this, and so it is 687 00:43:30,880 --> 00:43:33,440 Speaker 1: left to the States and to Congress to regulate it. 688 00:43:33,520 --> 00:43:37,399 Speaker 1: And by the way, even the pro life lawyers did 689 00:43:37,400 --> 00:43:40,399 Speaker 1: not make this argument. They actually specifically stayed away from 690 00:43:40,400 --> 00:43:42,640 Speaker 1: this argument, perhaps to try to appeal to some of 691 00:43:42,680 --> 00:43:45,719 Speaker 1: those justices who are on the fence. Michael, the next 692 00:43:45,800 --> 00:43:48,120 Speaker 1: question is less of a legal question and more of 693 00:43:48,160 --> 00:43:51,560 Speaker 1: a cultural legal hybrid question. So I want to focus 694 00:43:51,840 --> 00:43:54,279 Speaker 1: on you for this one. It's from John Bennett. He 695 00:43:54,360 --> 00:43:57,080 Speaker 1: says during the Supreme Court case Stobs versus Jackson, the 696 00:43:57,160 --> 00:44:02,000 Speaker 1: leading pro abortion argument was the negative economic impact childbearing 697 00:44:02,080 --> 00:44:04,359 Speaker 1: or child rearing is on women or has on women, 698 00:44:04,640 --> 00:44:06,880 Speaker 1: which poses the question that doesn't it also have an 699 00:44:06,880 --> 00:44:09,640 Speaker 1: economic impact on fathers. If fathers don't have a say, 700 00:44:09,880 --> 00:44:12,640 Speaker 1: then why are they responsible for child support? If they 701 00:44:12,640 --> 00:44:15,040 Speaker 1: are responsible for child supports, shouldn't they also have a 702 00:44:15,080 --> 00:44:17,600 Speaker 1: say in the termination of their child's life and given 703 00:44:17,640 --> 00:44:19,759 Speaker 1: the option to keep the child and release the mother 704 00:44:19,800 --> 00:44:22,920 Speaker 1: of her responsibility. Well, I think certainly a father should 705 00:44:22,920 --> 00:44:25,359 Speaker 1: have to say and whether or not a child will 706 00:44:25,400 --> 00:44:30,440 Speaker 1: live or die and be killed through some obscene pseudomedical process. 707 00:44:30,920 --> 00:44:32,640 Speaker 1: But I don't think that we need to make an 708 00:44:32,680 --> 00:44:36,360 Speaker 1: economic argument. I think the observation is really quite good 709 00:44:36,719 --> 00:44:41,680 Speaker 1: that the pro abortion side is now nakedly making a 710 00:44:41,960 --> 00:44:45,839 Speaker 1: money argument. They're saying, well, look, I know you might 711 00:44:46,560 --> 00:44:48,560 Speaker 1: decide to keep your kid or give up your kid, 712 00:44:48,560 --> 00:44:49,879 Speaker 1: but if you keep your kid, it's going to cost 713 00:44:49,920 --> 00:44:51,440 Speaker 1: you money. And if you give up your kid, you 714 00:44:51,480 --> 00:44:54,400 Speaker 1: can sacrifice him to the idol of lucer and mammon. 715 00:44:55,200 --> 00:44:57,960 Speaker 1: This is nothing new. I'm glad you've phrased it as 716 00:44:57,960 --> 00:45:00,360 Speaker 1: a cultural question. This is nothing new. We've seen this 717 00:45:00,400 --> 00:45:03,560 Speaker 1: in cultures from the beginning of the world. But it's wrong. 718 00:45:03,640 --> 00:45:07,000 Speaker 1: It is wrong to view your kid as a money 719 00:45:07,040 --> 00:45:10,720 Speaker 1: bag or an economic drag or even an economic benefit. 720 00:45:10,760 --> 00:45:12,560 Speaker 1: Your kid is your kid. Your kid has made in 721 00:45:12,600 --> 00:45:16,000 Speaker 1: the image of God and to some degree in your image, 722 00:45:16,120 --> 00:45:19,239 Speaker 1: and is worth more than dollars and cents. And this 723 00:45:19,360 --> 00:45:21,560 Speaker 1: is a big problem. So it's a clever argument to 724 00:45:21,600 --> 00:45:24,160 Speaker 1: try to make some economic argument on the right, but 725 00:45:24,360 --> 00:45:27,759 Speaker 1: I just think it's completely missing the points. It is 726 00:45:27,800 --> 00:45:32,080 Speaker 1: simply wrong, and there's no amount of mammon or lucre 727 00:45:32,120 --> 00:45:35,719 Speaker 1: that could convince me or I think any reasonable person otherwise. Well, 728 00:45:35,719 --> 00:45:37,920 Speaker 1: and Michael let me jump in on this also because 729 00:45:38,840 --> 00:45:43,359 Speaker 1: this was a point that Justice Barrett engaged in where 730 00:45:43,400 --> 00:45:46,320 Speaker 1: she pointed out that now states all across the country 731 00:45:46,440 --> 00:45:50,000 Speaker 1: have enacted so called safe haven laws where if a 732 00:45:50,040 --> 00:45:52,719 Speaker 1: mother gives birth to a child and that mother does 733 00:45:52,719 --> 00:45:55,520 Speaker 1: not feel she can care for that child, that you 734 00:45:55,560 --> 00:45:57,560 Speaker 1: can go and hand over the child and the child 735 00:45:57,560 --> 00:45:59,880 Speaker 1: will be cared for. And so it's just a protect 736 00:46:00,000 --> 00:46:03,399 Speaker 1: and in law if for whatever reason, whether economically, if 737 00:46:03,640 --> 00:46:06,120 Speaker 1: the mother's destitute and can't afford to provide for the child, 738 00:46:06,160 --> 00:46:10,800 Speaker 1: or for whatever reason, there is an option to hand 739 00:46:10,840 --> 00:46:13,200 Speaker 1: over the child to be cared for another and it 740 00:46:13,280 --> 00:46:16,080 Speaker 1: is And so Justice s. Barrett asked about that and said, look, 741 00:46:16,120 --> 00:46:19,560 Speaker 1: doesn't one of the arguments that was used by the 742 00:46:19,560 --> 00:46:22,280 Speaker 1: majority in Row and used by the majority in Casey 743 00:46:22,440 --> 00:46:25,759 Speaker 1: was this economic argument that it could be a financial 744 00:46:25,800 --> 00:46:28,600 Speaker 1: burden on a mother who is not in a doesn't 745 00:46:28,640 --> 00:46:31,720 Speaker 1: want to have a child at that point, And Justice 746 00:46:31,719 --> 00:46:33,759 Speaker 1: s Barrett said, well, look, hasn't this change now that 747 00:46:33,840 --> 00:46:37,440 Speaker 1: at least the economic consequence if you don't want to 748 00:46:37,640 --> 00:46:42,040 Speaker 1: bear it. The states have enacted laws to enable an 749 00:46:42,080 --> 00:46:46,520 Speaker 1: alternative that protects the child's life without imposing a financial 750 00:46:46,560 --> 00:46:48,880 Speaker 1: burden on you. And she also pointed out in the 751 00:46:48,880 --> 00:46:53,000 Speaker 1: second line of questioning adoption, which is obviously another avenue 752 00:46:53,040 --> 00:46:57,440 Speaker 1: of that and an adoption. I think it was her 753 00:46:57,520 --> 00:47:00,759 Speaker 1: questions point out that it was mentioned only in like 754 00:47:01,600 --> 00:47:06,360 Speaker 1: brief passing in row but not really considered any any level. 755 00:47:06,480 --> 00:47:10,160 Speaker 1: That that that with adoption, that is another avenue that 756 00:47:10,239 --> 00:47:14,960 Speaker 1: if you have a mother who does not believe she 757 00:47:15,120 --> 00:47:17,480 Speaker 1: is in position to raise the child, that she has 758 00:47:17,520 --> 00:47:21,120 Speaker 1: an option, uh that that that can still preserve the 759 00:47:21,200 --> 00:47:24,320 Speaker 1: life of the child. And this is such a great point, Senator, 760 00:47:24,360 --> 00:47:26,960 Speaker 1: and it's it's one that very few people seem to 761 00:47:27,239 --> 00:47:31,120 Speaker 1: understand the reality of because what the pro abortion side 762 00:47:31,120 --> 00:47:35,040 Speaker 1: will say is that there are so many orphanages and 763 00:47:35,200 --> 00:47:38,200 Speaker 1: the foster system teeming with children who are not being adopted, 764 00:47:38,200 --> 00:47:40,960 Speaker 1: and therefore adoption is not a viable alternative. But it's 765 00:47:41,120 --> 00:47:44,359 Speaker 1: it's really hiding the ball, it's really misrepresenting what's going on. 766 00:47:44,600 --> 00:47:47,320 Speaker 1: It's true it's very difficult for older children to be adopted, 767 00:47:47,320 --> 00:47:49,200 Speaker 1: and there are lots of problems in the foster care system, 768 00:47:49,280 --> 00:47:51,680 Speaker 1: and of course one could speak for hours about that 769 00:47:51,719 --> 00:47:54,080 Speaker 1: sort of thing, But when we're talking about babies who 770 00:47:54,080 --> 00:47:57,160 Speaker 1: are being put up for adoption as newborn babies. There 771 00:47:57,360 --> 00:48:00,720 Speaker 1: there are an estimated thirty six couples. For every newborn 772 00:48:00,760 --> 00:48:03,360 Speaker 1: baby in the United States who has put up for adoption, 773 00:48:03,400 --> 00:48:06,080 Speaker 1: thirty six couples who want to adopt that baby. So 774 00:48:06,120 --> 00:48:10,080 Speaker 1: there is absolutely no shortage of demand to put In 775 00:48:10,120 --> 00:48:13,000 Speaker 1: economic terms, there's no shortage of loving homes. If a 776 00:48:13,000 --> 00:48:14,640 Speaker 1: woman feels I am not at a place in my 777 00:48:14,680 --> 00:48:16,799 Speaker 1: life where I can care for this baby, there are 778 00:48:17,040 --> 00:48:21,000 Speaker 1: so many avenues adoption and as you say, laws that 779 00:48:21,040 --> 00:48:25,520 Speaker 1: will enact these safe havens, So the economic argument does 780 00:48:25,560 --> 00:48:29,000 Speaker 1: not carry water. There's also some kind of glorious poetic justice, 781 00:48:29,000 --> 00:48:32,320 Speaker 1: I think in justice Amy Barrett or Amy Coney Barrett 782 00:48:32,400 --> 00:48:35,360 Speaker 1: sitting up there, the mother of seven children, this woman 783 00:48:35,400 --> 00:48:38,680 Speaker 1: who is just so distinguished her career. She has achieved 784 00:48:38,880 --> 00:48:41,160 Speaker 1: the pinnacle of what you can achieve when you are, 785 00:48:41,480 --> 00:48:43,480 Speaker 1: you know, a lawyer the way that she is, and 786 00:48:43,640 --> 00:48:45,719 Speaker 1: her children have empowered her, not held her back. So 787 00:48:45,760 --> 00:48:48,879 Speaker 1: there's some kind of, like I said, poetic justice in that. 788 00:48:49,920 --> 00:48:52,279 Speaker 1: On that note, anybody who wants to submit a question 789 00:48:52,320 --> 00:48:54,640 Speaker 1: for next week's episode of Verdict, you can do so 790 00:48:54,920 --> 00:48:57,880 Speaker 1: at Verdict with Ted Cruz dot com. Slash Plus. Become 791 00:48:57,920 --> 00:49:00,440 Speaker 1: a subscriber on Verdict Plus, and you will behind the 792 00:49:00,440 --> 00:49:03,360 Speaker 1: scenes access to Senator Ted Cruz to ask questions that 793 00:49:03,400 --> 00:49:05,880 Speaker 1: we will answer right here on the show. So often 794 00:49:05,920 --> 00:49:08,200 Speaker 1: we're talking about how everything is just going to hell 795 00:49:08,239 --> 00:49:10,720 Speaker 1: in a handbasket, and you know, the news is all terrible, 796 00:49:10,880 --> 00:49:14,000 Speaker 1: but this is really You have convinced me, Senator, that 797 00:49:14,160 --> 00:49:18,239 Speaker 1: there really is a concrete reason to hope here, specifically 798 00:49:18,239 --> 00:49:20,200 Speaker 1: when it comes to this case, to the end of 799 00:49:20,200 --> 00:49:22,640 Speaker 1: a grievous error. But we'll have to hold it there. 800 00:49:22,880 --> 00:49:25,160 Speaker 1: Thank you, Senator. I'm Michael Knowles. This is Verdict with 801 00:49:25,320 --> 00:49:37,120 Speaker 1: Ted Cruz. By the way, don't forget our tremendous giveaway 802 00:49:37,200 --> 00:49:41,000 Speaker 1: in honor of the two year anniversary of Verdict, if 803 00:49:41,080 --> 00:49:46,080 Speaker 1: we reach fifteen thousand members on Verdict Plus by January 804 00:49:46,080 --> 00:49:48,920 Speaker 1: twenty first. January twenty first being of course, the anniversary 805 00:49:49,080 --> 00:49:51,759 Speaker 1: the inaugural episode of Verdict with Ted Cruise, and we 806 00:49:51,800 --> 00:49:55,720 Speaker 1: will bring one Verdict Plus member to a live taping 807 00:49:55,719 --> 00:49:57,440 Speaker 1: of Verdict. Now you don't have to pay anything. This 808 00:49:57,520 --> 00:50:00,160 Speaker 1: is an unpaid All you have to do is join 809 00:50:00,200 --> 00:50:02,600 Speaker 1: the Verdict Plus community at Verdict with Ted Cruise dot com, 810 00:50:02,640 --> 00:50:06,040 Speaker 1: Slash plus, if we reach fifteen thousand members by January 811 00:50:06,040 --> 00:50:08,600 Speaker 1: twenty first, maybe you will be invited to a live 812 00:50:08,640 --> 00:50:12,760 Speaker 1: taping of Verdict also on YouTube. We will be selecting 813 00:50:12,800 --> 00:50:16,200 Speaker 1: fifteen random people who leave comments on episode one hundred. 814 00:50:16,400 --> 00:50:19,680 Speaker 1: That's episode one hundred on YouTube. Fifteen random people we 815 00:50:19,719 --> 00:50:22,360 Speaker 1: will be selecting to get a box a Verdict merch 816 00:50:22,520 --> 00:50:25,879 Speaker 1: from the Verdict Merch Store. We're talking about sweet cactus hats, 817 00:50:25,880 --> 00:50:28,640 Speaker 1: we're talking about t shirts, we're talking about stickers, really 818 00:50:28,640 --> 00:50:30,799 Speaker 1: cool stuff. You could be one of the fifteen lucky people. 819 00:50:30,800 --> 00:50:33,920 Speaker 1: Ahead on over to our YouTube channel and leave comments. 820 00:50:34,160 --> 00:50:35,759 Speaker 1: Fifteen of you are going to get a box of 821 00:50:35,880 --> 00:50:40,440 Speaker 1: Verdict merch and perhaps the most fun. This isn't exactly 822 00:50:40,440 --> 00:50:42,400 Speaker 1: a giveaway, but it's even better. If we get to 823 00:50:42,480 --> 00:50:45,520 Speaker 1: fifty thousand reviews on Apple podcasts, that means that you 824 00:50:45,560 --> 00:50:48,280 Speaker 1: go over you subscribe to the show Verdict with Ted Cruise, 825 00:50:48,480 --> 00:50:50,319 Speaker 1: you leave us a five star rating, you give us 826 00:50:50,360 --> 00:50:53,520 Speaker 1: a glowing, obviously great review over there. If we get 827 00:50:53,560 --> 00:50:55,520 Speaker 1: to fifty thousand reviews, then we're going to do a 828 00:50:55,560 --> 00:50:59,319 Speaker 1: poll to see exactly what Michael and Senator Cruz are 829 00:50:59,360 --> 00:51:01,320 Speaker 1: going to do in twenty twenty two. These are the options, 830 00:51:01,320 --> 00:51:03,720 Speaker 1: and by the way, shout out to Real Truth Cactus 831 00:51:03,760 --> 00:51:06,080 Speaker 1: for this idea. These are the options. Either the Senator 832 00:51:06,120 --> 00:51:09,960 Speaker 1: wears a Braves jersey for a whole episode. That's option 833 00:51:10,080 --> 00:51:13,160 Speaker 1: number one. Option number two Michael and the Senator arm wrestle. 834 00:51:13,440 --> 00:51:16,160 Speaker 1: I'm very biased, but this one's my favorite. Option number 835 00:51:16,200 --> 00:51:18,600 Speaker 1: three the Cactus makes a guest appearance on our show. 836 00:51:18,800 --> 00:51:21,520 Speaker 1: Or option number four Michael Ross Princeton and the Senator 837 00:51:21,600 --> 00:51:26,239 Speaker 1: rost cl in a throwdown episode. Fifty thousand reviews on 838 00:51:26,280 --> 00:51:29,600 Speaker 1: Apple Podcasts and this you will be in control of 839 00:51:29,640 --> 00:51:31,480 Speaker 1: one of the episodes in twenty twenty two. Head on 840 00:51:31,520 --> 00:51:33,880 Speaker 1: over to Apple subscribe, give us a great review, and 841 00:51:34,040 --> 00:51:36,920 Speaker 1: those are our giveaways for the two year anniversary of 842 00:51:37,000 --> 00:51:40,120 Speaker 1: Verdict with Ted Cruz. This episode of Verdict with Ted 843 00:51:40,200 --> 00:51:42,799 Speaker 1: Cruse is being brought to you by Jobs, Freedom and 844 00:51:42,920 --> 00:51:48,720 Speaker 1: Security Pack, a political action committee dedicated to supporting conservative causes, organizations, 845 00:51:48,800 --> 00:51:52,360 Speaker 1: and candidates across the country. In twenty twenty two, Jobs 846 00:51:52,400 --> 00:51:55,920 Speaker 1: Freedom and Security Pack plans to donate to conservative candidates 847 00:51:56,000 --> 00:51:59,760 Speaker 1: running for Congress and help the Republican Party across the nation.