WEBVTT - The End of a Grievous Error 0:00:00.200 --> 0:00:02.719 After forty eight years, the United States may be coming 0:00:02.720 --> 0:00:06.200 to the end of an error, a grievous error, one 0:00:06.240 --> 0:00:08.600 of the most grievous errors, if not the single most 0:00:08.600 --> 0:00:12.280 grievous error, in the history of the United States. The 0:00:12.400 --> 0:00:16.919 Supreme Court has just heard oral arguments in Dabbs versus 0:00:17.000 --> 0:00:21.640 Jackson Women's Health Organization, and in the coming year could 0:00:21.720 --> 0:00:25.759 very possibly overturn Row versus Wade. This is Verdict with 0:00:25.760 --> 0:00:34.560 Ted Cruz. Today's episode of Verdict with Ted Cruz is 0:00:34.600 --> 0:00:37.680 sponsored by American Hartford Gold. I'm sure I'm not the 0:00:37.680 --> 0:00:40.640 only one who's noticed everything is getting expensive. 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With stamps dot 0:02:50.080 --> 0:02:52.959 COM's new Rate Advisor tool, you can also compare shipping 0:02:53.040 --> 0:02:55.840 rates and timelines to easily find the best option, so 0:02:55.880 --> 0:02:57.840 save time and money. With stamps dot com, there's no 0:02:57.960 --> 0:03:01.120 risk and with our promo code Verdict, you get a 0:03:01.120 --> 0:03:03.440 special offer that includes a four week trial plus free 0:03:03.480 --> 0:03:06.440 postage and a digital scale. No long term commitments or contracts. 0:03:06.639 --> 0:03:09.040 Just go to stamps dot com, click on the microphone 0:03:09.040 --> 0:03:11.720 at the top of the homepage and type in Verdict 0:03:12.280 --> 0:03:15.560 Welcome back to Verdict. I'm Michael Knowles, and we are 0:03:15.560 --> 0:03:18.960 going to get into the legal arguments and the precedent 0:03:19.400 --> 0:03:22.280 and Roe and Doe and Casey and all of the 0:03:23.160 --> 0:03:25.000 law stuff that I don't really know anything about. But 0:03:25.080 --> 0:03:27.920 something I do know a lot about is personality. And frankly, 0:03:27.960 --> 0:03:29.360 I think what a lot of this case is going 0:03:29.400 --> 0:03:33.440 to come down to are the justices. So last month 0:03:33.720 --> 0:03:37.680 we heard the oral arguments where the lawyers made their case. Senator, 0:03:37.760 --> 0:03:40.640 since you're the one who actually knows some of these people, 0:03:40.720 --> 0:03:43.680 you have argued cases before the Supreme Court, what is 0:03:43.720 --> 0:03:48.840 your take on the questions and reactions from the justices? Well, listen, 0:03:48.880 --> 0:03:52.400 the short answer is, I'm quite optimistic and I am 0:03:52.520 --> 0:03:57.440 very pleasantly surprised going into argument. I was worried about 0:03:57.440 --> 0:03:59.920 this case, and I'm still worried, but I'm much more 0:04:00.200 --> 0:04:04.280 optimistic today than I was before the argument. If you 0:04:04.480 --> 0:04:07.680 look at the court right now, we've had nine justices 0:04:07.720 --> 0:04:12.160 on the court, there are only two that I am 0:04:12.200 --> 0:04:18.000 absolutely confident going into argument. We're going to Number one 0:04:18.160 --> 0:04:22.960 vote to uphold the state law in question, the ban 0:04:23.040 --> 0:04:27.240 on abortions after fifteen weeks. But number two, even more Fundamentally, 0:04:27.240 --> 0:04:30.839 there are only two justices that I was certain we're 0:04:30.839 --> 0:04:35.760 going to vote to overturn Roe versus Wade. Coming out 0:04:35.760 --> 0:04:37.880 of the argument. I'm much more optimistic than that. The 0:04:38.320 --> 0:04:42.160 two that I'm confident about are Justice Thomas on Justice Alito, 0:04:42.279 --> 0:04:45.080 both of whom have been clear and explicit that they 0:04:45.120 --> 0:04:49.320 believe Roe was wrongly decided and should be overturned. The 0:04:49.480 --> 0:04:54.000 justices that I was far less confident about are Chief 0:04:54.040 --> 0:04:58.960 Justice Roberts, and then the three Trump justices, Justice Gorsus, 0:04:59.040 --> 0:05:05.440 Justice Kavanaugh, and Justice Barrett. Those are the justices really 0:05:05.480 --> 0:05:09.560 that are in play. The remaining justices on the left, 0:05:09.880 --> 0:05:12.000 their votes are clear. They're going to vote to strike 0:05:12.080 --> 0:05:15.200 down the state law. They're going to vote to reaffirm 0:05:15.520 --> 0:05:21.000 roversus Wade. There's no doubting where their votes are coming 0:05:21.040 --> 0:05:23.800 out of the argument, though I'm actually quite encouraged. The 0:05:24.000 --> 0:05:30.520 questions seem to lean quite heavily in the direction of 0:05:30.560 --> 0:05:35.000 affirming the state law. So the good news is, at 0:05:35.000 --> 0:05:37.880 this point, having listened to the argument, I would be 0:05:38.760 --> 0:05:43.600 shocked and even astonished if the Supreme Court struck down 0:05:43.640 --> 0:05:47.240 the state law prohibiting abortions after fifteen weeks. So that's 0:05:47.240 --> 0:05:51.280 a big deal. That's a major victory. And I think 0:05:51.360 --> 0:05:55.039 there is a very real possibility that this Court would 0:05:55.160 --> 0:05:58.279 will do what the Court has been unwilling to do 0:05:58.400 --> 0:06:02.880 for nearly fifty years, which is overturned Row versus Wade, 0:06:03.760 --> 0:06:07.839 and returned the authority to make decisions and determinations and 0:06:07.960 --> 0:06:11.760 laws concerning abortions, returned them to the states, and returned 0:06:11.800 --> 0:06:14.400 them to the people. And it's worth noting at the 0:06:14.440 --> 0:06:21.359 outset the consequences of overturning Row are not that abortion 0:06:21.480 --> 0:06:23.760 is suddenly illegal. A lot of people don't understand. They 0:06:23.760 --> 0:06:26.359 here overturn versus way, it kind of startles them. That 0:06:26.440 --> 0:06:29.800 sounds like a sounds like an extreme and shocking thing. 0:06:31.080 --> 0:06:34.680 For most of our country's history, abortion was a matter 0:06:34.760 --> 0:06:37.120 that was regulated at the state level, and different states 0:06:37.160 --> 0:06:40.720 could adopt different laws, and they did. And in nineteen 0:06:40.839 --> 0:06:44.800 seventy three and Row versus Wade, the Supreme Court changed 0:06:44.880 --> 0:06:47.440 all that and it struck down it actually struck down 0:06:47.480 --> 0:06:51.560 Texas's law that protected the life of an unborn child, 0:06:52.160 --> 0:06:56.039 and it issued a decision that I believe was lawless, 0:06:56.120 --> 0:06:59.039 that that was wrong, that was not tethered to the Constitution. 0:07:00.040 --> 0:07:03.279 As we've talked about a lot on this pod. The 0:07:03.360 --> 0:07:06.320 book I wrote last fall, One Vote Away, How a 0:07:06.360 --> 0:07:09.000 single Supreme Court seat can change history. There's an entire 0:07:09.080 --> 0:07:12.200 chapter on that book focused on life, and it begins 0:07:12.200 --> 0:07:17.000 with ro versus Wade. I think that decision profoundly and 0:07:17.160 --> 0:07:22.560 perhaps irreparably politicize the Supreme Court, and it brought us 0:07:22.720 --> 0:07:29.240 into this world of deeply political, nasty Supreme Court confirmation fights, 0:07:29.280 --> 0:07:35.520 because if you have nine unelected lawyers decreeing the law 0:07:35.760 --> 0:07:40.640 for three hundred and thirty million Americans and determining what 0:07:40.680 --> 0:07:42.760 they can make rules about and what they can't, that 0:07:44.440 --> 0:07:50.160 significantly compromised the independence and the integrity and the judicial 0:07:50.240 --> 0:07:53.360 nature of the Court. I hope they overturn Row, and 0:07:53.400 --> 0:07:56.040 I've got some real sense of optimism that they're going 0:07:56.040 --> 0:07:59.880 to Senator. Before we get into it, I tell you, 0:08:00.120 --> 0:08:02.480 I know that you're a constitutional scholar, you've argued before 0:08:02.520 --> 0:08:04.520 the court, you're a senator. Me you know, I'm just 0:08:04.600 --> 0:08:07.320 some guy. I've listened to the oral arguments, read the history, 0:08:07.520 --> 0:08:10.480 but I am reliably informed. We are not allowed to 0:08:10.520 --> 0:08:13.000 have an opinion on this matter because this is a 0:08:13.040 --> 0:08:16.239 woman's issue, and all women love abortion, and all women 0:08:16.280 --> 0:08:19.480 totally love Roe v. Wade. So, Liz, since you are 0:08:19.520 --> 0:08:21.920 the only woman that we have for miles around here, 0:08:22.600 --> 0:08:25.160 that's all true. We got to uphold row abortions great 0:08:25.240 --> 0:08:28.240 and women need to shut up. Well, I can reliably 0:08:28.280 --> 0:08:31.559 inform you, as a woman, Michael, that that is fake news, 0:08:31.600 --> 0:08:34.280 that all women do not, like Roe v. Wade, do 0:08:34.320 --> 0:08:37.040 not need abortion to succeed. But you actually bring up 0:08:37.040 --> 0:08:40.560 an interesting point because listening to these arguments in front 0:08:40.600 --> 0:08:44.520 of the Supreme Court, I was frankly surprised at how 0:08:44.600 --> 0:08:48.319 weak the arguments from the pro abortion side was. They 0:08:48.400 --> 0:08:50.600 essentially focus on two things. They focus on the very 0:08:50.679 --> 0:08:53.560 unscientific argument I guess if you even want to call 0:08:53.600 --> 0:08:56.319 it an argument, that this was about a woman's body, 0:08:56.440 --> 0:08:58.959 instead of differentiating that, of course, the unborn child is 0:08:59.000 --> 0:09:02.120 a separate body, that there are competing interests between that 0:09:02.240 --> 0:09:05.440 child and that mother. But also in Senator, maybe you 0:09:05.480 --> 0:09:09.160 can speak to this a little bit. They kept categorizing 0:09:09.280 --> 0:09:12.040 Rowe as being the super precedent, that because it is 0:09:12.240 --> 0:09:15.679 quote unquote settled law, that it simply cannot be overturned. 0:09:16.080 --> 0:09:17.920 This is not true in the history of our nation. 0:09:18.880 --> 0:09:22.440 Well it's not, and the Supreme Court has overturned a 0:09:22.480 --> 0:09:25.000 lot of precedents over the two hundred plus years of 0:09:25.040 --> 0:09:28.800 our nation's history. The justice that leaned in the hardest 0:09:28.880 --> 0:09:31.400 on saying that was Justice Brier and Listen. He was 0:09:31.480 --> 0:09:36.720 trying to find a way to save Rowe, and his argument, 0:09:37.679 --> 0:09:41.560 his argument really really stemmed from the decision in Casey. 0:09:41.640 --> 0:09:44.480 So a little bit of the history Rowe was nineteen 0:09:44.520 --> 0:09:49.480 seventy three. It struck down essentially all the laws across 0:09:49.520 --> 0:09:54.040 the country that banned abortion. It was a seven two decision. 0:09:54.080 --> 0:09:57.320 It was written by Harry Blackman, who had been an 0:09:57.320 --> 0:10:03.559 appointee of Richard Nixon and a Republican appointee. And Blackman 0:10:04.600 --> 0:10:07.920 had previously been general counsel of the Mayo Clinic. And 0:10:08.320 --> 0:10:13.400 Blackman was not a distinguished jurist. He was one of 0:10:13.440 --> 0:10:15.840 the least distinguished members to ever serve on the Court. 0:10:15.880 --> 0:10:19.880 And the Roversus weight opinion is a terrible opinion. It 0:10:20.400 --> 0:10:23.400 doesn't derive from the Constitution, it barely purports to. And 0:10:23.679 --> 0:10:30.160 Roversus Wade set up this this trimester formula. In the 0:10:30.200 --> 0:10:33.600 first trimester, the state had almost no leeway regulating abortion, 0:10:33.640 --> 0:10:35.960 and the second trimester they had more, and in the 0:10:36.040 --> 0:10:39.959 third they had significantly more. That's that doesn't come from 0:10:39.960 --> 0:10:43.160 the Constitution, doesn't come from the Bill of Rights, but 0:10:44.200 --> 0:10:50.040 it was invented in roversus. Wade. Fast forward to nineteen 0:10:50.120 --> 0:10:53.480 ninety two. Nineteen ninety two, You've had twelve years of 0:10:53.520 --> 0:10:58.560 Reagan Bush. You've had multiple Republican justices appointed to the Court. 0:10:58.600 --> 0:11:01.200 You had Sandra Day O'Connor appointed to the court. You 0:11:01.360 --> 0:11:06.240 had Justice Scalia appointed to the court. You had Anthony 0:11:06.320 --> 0:11:09.880 Kennedy appointed to the Court. You had David Suitor appointed 0:11:09.920 --> 0:11:17.520 to the Court. And in nineteen ninety two, the decision 0:11:17.559 --> 0:11:20.680 that everyone thought was going to overturn Roe versus Wade 0:11:20.840 --> 0:11:24.840 was a decision called Casey. And at the time, you know, 0:11:24.840 --> 0:11:26.319 it's a little bit like where we are now. It's 0:11:26.360 --> 0:11:29.840 part of why conservatives are wary even though the argument 0:11:29.880 --> 0:11:34.240 seems good. The argument seemed good, and Casey Casey concerned. 0:11:34.720 --> 0:11:37.280 The state of Pennsylvania had a whole series of laws 0:11:37.280 --> 0:11:41.440 they passed that were some fairly modest restrictions on abortion. So, 0:11:41.520 --> 0:11:46.000 for example, Pennsylvania required parental consent for a minor to 0:11:46.000 --> 0:11:51.920 get an abortion. Pennsylvania required informed consent before a woman 0:11:51.960 --> 0:11:54.960 could get an abortion. Pennsylvania required a twenty four hour 0:11:55.080 --> 0:12:01.840 waiting period. Pennsylvania also required spousal note of vacation, and 0:12:01.960 --> 0:12:05.000 when the case went up there, almost every observer said, 0:12:05.080 --> 0:12:08.360 rovers's way, it's going to be overturned. Well what happened. 0:12:08.400 --> 0:12:17.800 It wasn't overturned Casey. Casey reaffirmed row and it upheld 0:12:18.080 --> 0:12:20.480 most of the different Pennsylvania laws. So it upheld the 0:12:20.480 --> 0:12:24.400 parental consent aspect, it upheld informed consent, it upheld the 0:12:24.440 --> 0:12:28.920 twenty four hour waiting period, but it struck down spousal notification. 0:12:29.000 --> 0:12:33.080 And in Casey, you had three Justices O'Connor, Kennedy and 0:12:33.160 --> 0:12:37.320 Suitor who wrote this joint opinion, which is very strange. 0:12:37.400 --> 0:12:40.440 Normally an opinion is signed by one justice. None of 0:12:40.440 --> 0:12:42.600 them signed it. They wrote it together as a joint 0:12:42.600 --> 0:12:45.880 opinion because they were I think, really trying to hide 0:12:45.960 --> 0:12:50.240 from accountability for what they were saying. And they threw 0:12:50.320 --> 0:12:54.160 out rows trimester system and they replaced it with a 0:12:54.160 --> 0:12:56.840 new standard called undue burden. And we'll talk about that 0:12:56.880 --> 0:12:59.800 more in a minute. But Casey talked a lot about 0:12:59.800 --> 0:13:03.760 how Rowe was a super precedent, that that it had 0:13:03.760 --> 0:13:07.880 a high threshold to be overturned, and so Justice Bryer 0:13:08.400 --> 0:13:14.480 kept repeating the portions of the Casey opinion, saying Rowe 0:13:14.559 --> 0:13:17.160 was a super precedent because he's trying very hard to 0:13:17.200 --> 0:13:20.640 preserve it. Um. I'm not sure his arguments were very 0:13:20.640 --> 0:13:23.040 persuasive to his colleagues, though. We actually have a lot 0:13:23.080 --> 0:13:26.880 of great questions about this case, specifically from our Verdict 0:13:26.920 --> 0:13:29.800 plus subscribers. People are very interested in the nitty gritty 0:13:29.800 --> 0:13:33.000 the legality of this, not just the cultural aspect of abortion. 0:13:33.720 --> 0:13:36.120 Before we get to that, we've compiled a bunch of 0:13:36.240 --> 0:13:39.280 video clips or not video clips, audio clips from the 0:13:39.360 --> 0:13:42.440 Supreme Court oral arguments to address some of these questions. 0:13:42.440 --> 0:13:45.120 So I want to toss this to Michael Great, all right, Liz, 0:13:45.120 --> 0:13:47.160 we'll get back to you a little bit with the mailbag. 0:13:47.280 --> 0:13:52.200 And Senator, you've what you've laid out here has actually 0:13:52.679 --> 0:13:55.160 it's made me even more confused. It's not your fault. 0:13:55.240 --> 0:13:58.120 It's just the history of the way these decisions have 0:13:58.200 --> 0:14:01.640 gone on at the Court. So we've got Row, we've 0:14:01.679 --> 0:14:04.120 got Doe, which is different than Row, I take it, 0:14:04.520 --> 0:14:08.800 and then later on we've got Casey. And all of 0:14:08.840 --> 0:14:13.360 this affirms some right to an abortion, but the justification 0:14:13.440 --> 0:14:16.280 for the right to an abortion kind of changes, I guess. Actually, 0:14:16.559 --> 0:14:20.720 Justice Thomas, now in the Dabbs questioning, gets to the 0:14:20.720 --> 0:14:24.280 heart of this question. He says, what right is this 0:14:24.400 --> 0:14:30.520 really about? Take a lessen What constitutional right protects the 0:14:30.640 --> 0:14:36.600 right to abortion? Is it privacy? Is it autonomy? What 0:14:36.600 --> 0:14:40.840 would it be? It's liberty, your honor, It's the textual 0:14:40.840 --> 0:14:44.160 protection in the fourteenth Amendment that a state can't deprive 0:14:44.240 --> 0:14:47.120 a person of liberty without due process of law. And 0:14:47.200 --> 0:14:50.400 the Court has interpreted liberty to include the right to 0:14:50.480 --> 0:14:53.840 make family decisions and the right to physical autonomy, including 0:14:53.880 --> 0:14:57.520 the right to end a previability pregnancy. So simple question 0:14:57.600 --> 0:14:59.960 from Justice Thomas, what right are we talking about? It? 0:15:00.000 --> 0:15:01.680 If I talk about the right to have a gun, 0:15:01.720 --> 0:15:03.320 I can point to the Secondmendment. I say, there's my 0:15:03.400 --> 0:15:05.920 right to have Again, what is the right is abortion? 0:15:05.960 --> 0:15:10.520 And she says, no, it's it's liberty. In the fourteenth 0:15:10.520 --> 0:15:13.880 the men men maybe applied differently depending on the case 0:15:13.880 --> 0:15:16.120 you're talking about. So what, Senator, please help me? What 0:15:16.240 --> 0:15:17.760 is she talking about? So let me say at the 0:15:17.800 --> 0:15:22.800 outset that that I love Justice Thomas's voice, the deep, 0:15:23.720 --> 0:15:26.400 gravelly voice, And I'll tell you I've I've been blessed. 0:15:26.680 --> 0:15:29.960 I know Justice Thomas fairly well and spend time with him. 0:15:30.080 --> 0:15:33.760 When he laughs, it is like Santa Clause. It is 0:15:33.760 --> 0:15:41.000 the most unbelievably deep that that that is just spectacular, 0:15:41.040 --> 0:15:47.040 and he is he is a true American hero. Um. 0:15:48.840 --> 0:15:51.720 The reason he asked that question is because if you 0:15:51.760 --> 0:15:53.360 look at the Constitution, if you look at the Bill 0:15:53.400 --> 0:15:55.200 of Rights and you go look for the word abortion, 0:15:56.120 --> 0:15:59.640 you don't see it. Um. If you look for pregnancy, 0:16:00.520 --> 0:16:07.160 you don't see it. If you look for any authority 0:16:07.360 --> 0:16:13.200 for restricting and restricting and preventing states from from protecting 0:16:13.280 --> 0:16:15.720 unborn life, you don't see it. And there's a reason 0:16:15.760 --> 0:16:17.680 for that, which is that many of the states did 0:16:17.720 --> 0:16:19.680 so that that it had been the case for one 0:16:19.720 --> 0:16:21.880 hundred and fifty years of our nation's history that the 0:16:22.000 --> 0:16:26.040 states had the authority to prohibit abortion. You know the 0:16:26.120 --> 0:16:29.480 hippocratic oath, you know the oath that doctors take. Every 0:16:29.520 --> 0:16:32.800 doctor takes says I will not help a woman procure abortion. 0:16:34.240 --> 0:16:40.240 So there had been centuries of legal precedent that the 0:16:40.560 --> 0:16:43.160 states had the authority to do this. So how did 0:16:43.200 --> 0:16:45.320 we get to row. Well, to understand how we get 0:16:45.320 --> 0:16:47.440 to row, you have to get to it. You have 0:16:47.480 --> 0:16:50.240 to start with a decision called Grizzwold versus Connecticut, which 0:16:50.240 --> 0:16:53.360 was one of the precursors to Row. And it was 0:16:53.440 --> 0:16:56.400 a manufactured case that actually came out of Yale Law School. 0:16:56.400 --> 0:17:00.120 You're alma mater to teed up Grizzwold versus Connecticut. And 0:17:00.120 --> 0:17:03.880 and it was a woman who went to purchase contraceptives 0:17:04.480 --> 0:17:09.000 was denied the ability to purchase contraceptives pursuant to a 0:17:09.040 --> 0:17:12.439 state law that was rarely, if ever enforced, But they 0:17:12.440 --> 0:17:14.359 went and found someone to enforce it so that they 0:17:14.359 --> 0:17:18.399 could tee up this test case. The Supreme Court in 0:17:18.440 --> 0:17:25.320 Griswold versus Connecticut, struck down the prohibition on contraceptives. Look, 0:17:25.520 --> 0:17:29.119 I think a prohibition on contraceptives is incredibly stupid. It 0:17:29.240 --> 0:17:33.440 is very bad policy. I don't know any rational person 0:17:33.480 --> 0:17:37.720 in this country who believes contraceptives should be illegal. Well, 0:17:37.720 --> 0:17:40.000 we'll get into it lab. Sorry, we'll get into it later. Senator. 0:17:40.560 --> 0:17:43.480 Let's go on. Even Michael Knowles, I don't think believes 0:17:43.520 --> 0:17:47.240 that depends on what year you ask me, you know, 0:17:47.280 --> 0:17:53.720 as a young man. Yes, but Griswold actually the reasoning 0:17:53.760 --> 0:17:55.639 it it said, and this is where the Court got 0:17:55.680 --> 0:18:01.639 a little metaphysical. It said, it was the first major 0:18:01.680 --> 0:18:04.200 decision that created what's called the right to privacy, and 0:18:04.280 --> 0:18:06.840 Justice Thomas in that clip refers to the right to privacy, 0:18:07.040 --> 0:18:10.920 and the word privacy doesn't appear in the Constitution either. 0:18:11.000 --> 0:18:13.879 But what the Court said is is the Court said, well, 0:18:15.359 --> 0:18:21.840 the protections in the Bill of Rights have emanations. Basically, 0:18:21.880 --> 0:18:29.919 they glow, and those emanations cast panumbras a pannumbras a 0:18:29.960 --> 0:18:35.880 fancy word for a shadow. Now and within the pannumbras 0:18:36.040 --> 0:18:41.920 from the emanations we find the right to privacy. Okay, 0:18:42.119 --> 0:18:47.320 all right, fast forward to row. Within that right to privacy, 0:18:47.400 --> 0:18:51.960 Justice Blackman wrote, the right that came from a pannumbra, 0:18:52.119 --> 0:18:54.680 from an emanation. That, minds you, that rights in the 0:18:54.680 --> 0:18:58.320 Bill of Rights are casting. Is where the right to 0:18:58.359 --> 0:19:02.240 an abortion came from. One of the reasons why roversus Wade, 0:19:02.280 --> 0:19:05.760 even when it came down, was almost universally ridiculed as 0:19:05.920 --> 0:19:11.720 just almost incoherent, just just bad legal writing, not tied 0:19:11.760 --> 0:19:14.600 to the Constitution. Even liberals, you know, Ruth Bader Ginsburg 0:19:14.680 --> 0:19:17.480 was actually quite critical of the reasoning in roversus Wade. 0:19:17.640 --> 0:19:22.160 She agreed with the outcome the reason. Justice Thomas asked 0:19:22.200 --> 0:19:25.840 that as in Row Harry Blackman says, it comes from 0:19:25.840 --> 0:19:30.960 the right to privacy, that's coming from the numbers of emanations. 0:19:31.080 --> 0:19:36.280 Subsequent liberals have defended it as an autonomy interest and 0:19:36.320 --> 0:19:39.680 a liberty interest. So these are all different ideas that 0:19:39.720 --> 0:19:44.240 have been cast forth. Because abortion is not in the Constitution, 0:19:44.920 --> 0:19:47.640 they're trying to find another way to find it in there. 0:19:47.720 --> 0:19:51.560 And so, look, is there a liberty interest protected in 0:19:51.840 --> 0:19:56.080 the Fifth Amendment and fourteenth Amendment? Absolutely, but they also 0:19:56.160 --> 0:19:59.399 protect life and liberty. You're free to do what you wish, 0:19:59.520 --> 0:20:04.080 but that restriction always has limitations when it impacts the 0:20:04.160 --> 0:20:09.280 rights of another. And so I think it is a 0:20:10.640 --> 0:20:13.520 too cute by half argument to say it is within 0:20:13.600 --> 0:20:20.240 the liberty interest. And and but that I would say 0:20:20.359 --> 0:20:23.359 is the more modern liberal argument for the right to 0:20:23.400 --> 0:20:27.080 abortion is true to the extent they're trying to ground 0:20:27.119 --> 0:20:32.359 it anywhere um that they they try to ground it 0:20:32.520 --> 0:20:41.800 within a liberty interest. Although autonomy was the basis that 0:20:41.920 --> 0:20:50.480 Justice Kennedy found for striking down Texas's law criminalizing homosexual sodomy, 0:20:50.520 --> 0:20:54.280 and he talked about the right to autonomy. And in fact, 0:20:54.359 --> 0:20:57.280 there's a passage that that Justice Scalia ridicules as the 0:20:57.359 --> 0:21:01.919 sweet mystery of the universe passage where he says, I 0:21:01.960 --> 0:21:04.680 can't quote it exactly, but for each of us, the 0:21:05.080 --> 0:21:09.000 process of defining ourselves, our existence, and the sweet mystery 0:21:09.000 --> 0:21:12.040 of the universe is at the core of humanity. It's 0:21:12.040 --> 0:21:16.600 this like poetic gibberish. That's right, the right to define 0:21:16.800 --> 0:21:20.960 our own concept of existence. And which if that is 0:21:21.000 --> 0:21:24.560 the case, I do define myself as a professional Major 0:21:24.600 --> 0:21:28.119 League baseball player. That is my right, Senator, and please, 0:21:28.200 --> 0:21:30.400 I would appreciate if you would address me as such. Well, 0:21:30.440 --> 0:21:32.320 And Michael Baseball had been very very good to me. 0:21:36.000 --> 0:21:39.320 And that's from a Saturday Night Live before probably before 0:21:39.320 --> 0:21:42.000 you were born, when I was just a glint in 0:21:42.040 --> 0:21:46.440 my father's eye. That's true, but but about as coherent, 0:21:46.520 --> 0:21:49.040 by the way, as Justice Kennedy's argument. And it's so 0:21:49.200 --> 0:21:51.760 the case you were deciding as Lawrence v. Texas, which 0:21:52.280 --> 0:21:56.320 strikes down laws against homosexual activity. And by the way, 0:21:56.359 --> 0:22:01.639 to be clear, I think laws again homosexual activity every 0:22:01.640 --> 0:22:08.040 bit as assinine as laws against contraceptives. I would emphatically 0:22:08.080 --> 0:22:11.280 vote against those laws as a state legislators, as a 0:22:11.280 --> 0:22:13.480 member of the Senate, I don't think government has any 0:22:13.480 --> 0:22:18.680 business regulating in that instance the conduct of consenting adults. 0:22:18.720 --> 0:22:20.080 I think you ought to be able to do what 0:22:20.520 --> 0:22:25.880 you wish. But the reason Justice Thomas asked that question 0:22:26.040 --> 0:22:30.040 is there sort of three different buckets from which different 0:22:30.040 --> 0:22:35.400 people have sought to try to derive a right to abortion. Well, 0:22:35.440 --> 0:22:38.520 and to your point on Lawrence View, Texas Senator Scalia 0:22:38.720 --> 0:22:41.040 made this point. He said, there are plenty of things 0:22:41.119 --> 0:22:42.639 that are bad. There are plenty of things that I 0:22:42.680 --> 0:22:44.840 don't like, plenty of things that I do like and 0:22:44.840 --> 0:22:47.439 that are good that are just simply not in the constitution. 0:22:47.480 --> 0:22:50.840 He said, there can be things that are SBC stupid 0:22:51.240 --> 0:22:54.919 but constitutional. And so as you're describing this right to 0:22:54.960 --> 0:22:58.760 an abortion would appear to be a conclusion in search 0:22:58.800 --> 0:23:01.760 of an argument, inclusion in search of evidence. And the 0:23:01.800 --> 0:23:05.480 evidence keeps changing, and the arguments keep contradicting each other sometimes, 0:23:05.640 --> 0:23:08.080 but they come down and they say there's a right 0:23:08.119 --> 0:23:10.080 to an abortion, and they reaffirm it. So then the 0:23:10.160 --> 0:23:13.560 question is, and this was a question that the judges 0:23:13.640 --> 0:23:17.480 and the justices are dealing with, is what about starry decisives? 0:23:17.880 --> 0:23:22.520 What about precedent. Let's say you've got a really bad decision. Well, 0:23:22.359 --> 0:23:25.359 what if it's been on the books for fifty years, 0:23:25.400 --> 0:23:27.960 doesn't it have to remain there? A Justice. Cavanaugh listed 0:23:28.000 --> 0:23:31.360 a number of landmark cases in the Court's history that 0:23:31.560 --> 0:23:34.919 we're not exactly settled law. Take a listen, and history 0:23:35.000 --> 0:23:38.199 helps think about stary decisis as I've looked at it, 0:23:38.400 --> 0:23:42.119 and the history of how the courts applied star decisis, 0:23:42.119 --> 0:23:46.840 And when you really dig into it, history tells a 0:23:46.920 --> 0:23:50.440 somewhat different story I think than is sometimes assumed. You 0:23:50.520 --> 0:23:53.800 think about some of the most important cases, the most 0:23:53.800 --> 0:23:58.159 consequential cases in this Court's history, there's a string of 0:23:58.200 --> 0:24:03.399 them where the case is overruled. President Brown v. Board 0:24:04.640 --> 0:24:09.439 outlawed separate butN equal. Baker versus car which set the 0:24:09.480 --> 0:24:13.400 stage for one person, one vote, West Coast Hotel, which 0:24:13.440 --> 0:24:18.280 recognized the state's authority to regulate business, Miranda versus Arizona, 0:24:18.320 --> 0:24:21.439 which required police to give warnings when the right about 0:24:21.440 --> 0:24:23.680 the right to remain silent and to have an attorney. 0:24:23.680 --> 0:24:28.640 President to suspects and criminal custody Lawrence fee Texas said 0:24:28.640 --> 0:24:32.800 that the state may not prohibit same sex conduct. Map 0:24:32.920 --> 0:24:36.560 versus Ohio, which held that the exclusionary rule applies to 0:24:36.640 --> 0:24:40.560 state criminal prosecutions to exclude evidence obtained in violation of 0:24:40.640 --> 0:24:45.200 the Fourth Amendment Gideon versus Wainwright, which guaranteed the right 0:24:45.240 --> 0:24:49.280 to counsel in criminal cases, or burgha. Fell which recognized 0:24:49.280 --> 0:24:52.679 a constitutional right to same sex marriage. In each of 0:24:52.720 --> 0:24:56.520 those cases, and that's a list, and I could go on, 0:24:57.920 --> 0:25:00.399 and those are some of the most consequential horton in 0:25:00.400 --> 0:25:06.520 the Court's history. The court overruled precedent. And it turns 0:25:06.560 --> 0:25:11.080 out if the court in those cases had had listened 0:25:11.119 --> 0:25:13.680