Speaker 1: After forty eight years, the United States may be coming
Speaker 1: to the end of an error, a grievous error, one
Speaker 1: of the most grievous errors, if not the single most
Speaker 1: grievous error, in the history of the United States. The
Speaker 1: Supreme Court has just heard oral arguments in Dabbs versus
Speaker 1: Jackson Women's Health Organization, and in the coming year could
Speaker 1: very possibly overturn Row versus Wade. This is Verdict with
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Speaker 1: Welcome back to Verdict. I'm Michael Knowles, and we are
Speaker 1: going to get into the legal arguments and the precedent
Speaker 1: and Roe and Doe and Casey and all of the
Speaker 1: law stuff that I don't really know anything about. But
Speaker 1: something I do know a lot about is personality. And frankly,
Speaker 1: I think what a lot of this case is going
Speaker 1: to come down to are the justices. So last month
Speaker 1: we heard the oral arguments where the lawyers made their case. Senator,
Speaker 1: since you're the one who actually knows some of these people,
Speaker 1: you have argued cases before the Supreme Court, what is
Speaker 1: your take on the questions and reactions from the justices? Well, listen,
Speaker 1: the short answer is, I'm quite optimistic and I am
Speaker 1: very pleasantly surprised going into argument. I was worried about
Speaker 1: this case, and I'm still worried, but I'm much more
Speaker 1: optimistic today than I was before the argument. If you
Speaker 1: look at the court right now, we've had nine justices
Speaker 1: on the court, there are only two that I am
Speaker 1: absolutely confident going into argument. We're going to Number one
Speaker 1: vote to uphold the state law in question, the ban
Speaker 1: on abortions after fifteen weeks. But number two, even more Fundamentally,
Speaker 1: there are only two justices that I was certain we're
Speaker 1: going to vote to overturn Roe versus Wade. Coming out
Speaker 1: of the argument. I'm much more optimistic than that. The
Speaker 1: two that I'm confident about are Justice Thomas on Justice Alito,
Speaker 1: both of whom have been clear and explicit that they
Speaker 1: believe Roe was wrongly decided and should be overturned. The
Speaker 1: justices that I was far less confident about are Chief
Speaker 1: Justice Roberts, and then the three Trump justices, Justice Gorsus,
Speaker 1: Justice Kavanaugh, and Justice Barrett. Those are the justices really
Speaker 1: that are in play. The remaining justices on the left,
Speaker 1: their votes are clear. They're going to vote to strike
Speaker 1: down the state law. They're going to vote to reaffirm
Speaker 1: roversus Wade. There's no doubting where their votes are coming
Speaker 1: out of the argument, though I'm actually quite encouraged. The
Speaker 1: questions seem to lean quite heavily in the direction of
Speaker 1: affirming the state law. So the good news is, at
Speaker 1: this point, having listened to the argument, I would be
Speaker 1: shocked and even astonished if the Supreme Court struck down
Speaker 1: the state law prohibiting abortions after fifteen weeks. So that's
Speaker 1: a big deal. That's a major victory. And I think
Speaker 1: there is a very real possibility that this Court would
Speaker 1: will do what the Court has been unwilling to do
Speaker 1: for nearly fifty years, which is overturned Row versus Wade,
Speaker 1: and returned the authority to make decisions and determinations and
Speaker 1: laws concerning abortions, returned them to the states, and returned
Speaker 1: them to the people. And it's worth noting at the
Speaker 1: outset the consequences of overturning Row are not that abortion
Speaker 1: is suddenly illegal. A lot of people don't understand. They
Speaker 1: here overturn versus way, it kind of startles them. That
Speaker 1: sounds like a sounds like an extreme and shocking thing.
Speaker 1: For most of our country's history, abortion was a matter
Speaker 1: that was regulated at the state level, and different states
Speaker 1: could adopt different laws, and they did. And in nineteen
Speaker 1: seventy three and Row versus Wade, the Supreme Court changed
Speaker 1: all that and it struck down it actually struck down
Speaker 1: Texas's law that protected the life of an unborn child,
Speaker 1: and it issued a decision that I believe was lawless,
Speaker 1: that that was wrong, that was not tethered to the Constitution.
Speaker 1: As we've talked about a lot on this pod. The
Speaker 1: book I wrote last fall, One Vote Away, How a
Speaker 1: single Supreme Court seat can change history. There's an entire
Speaker 1: chapter on that book focused on life, and it begins
Speaker 1: with ro versus Wade. I think that decision profoundly and
Speaker 1: perhaps irreparably politicize the Supreme Court, and it brought us
Speaker 1: into this world of deeply political, nasty Supreme Court confirmation fights,
Speaker 1: because if you have nine unelected lawyers decreeing the law
Speaker 1: for three hundred and thirty million Americans and determining what
Speaker 1: they can make rules about and what they can't, that
Speaker 1: significantly compromised the independence and the integrity and the judicial
Speaker 1: nature of the Court. I hope they overturn Row, and
Speaker 1: I've got some real sense of optimism that they're going
Speaker 1: to Senator. Before we get into it, I tell you,
Speaker 1: I know that you're a constitutional scholar, you've argued before
Speaker 1: the court, you're a senator. Me you know, I'm just
Speaker 1: some guy. I've listened to the oral arguments, read the history,
Speaker 1: but I am reliably informed. We are not allowed to
Speaker 1: have an opinion on this matter because this is a
Speaker 1: woman's issue, and all women love abortion, and all women
Speaker 1: totally love Roe v. Wade. So, Liz, since you are
Speaker 1: the only woman that we have for miles around here,
Speaker 1: that's all true. We got to uphold row abortions great
Speaker 1: and women need to shut up. Well, I can reliably
Speaker 1: inform you, as a woman, Michael, that that is fake news,
Speaker 1: that all women do not, like Roe v. Wade, do
Speaker 1: not need abortion to succeed. But you actually bring up
Speaker 1: an interesting point because listening to these arguments in front
Speaker 1: of the Supreme Court, I was frankly surprised at how
Speaker 1: weak the arguments from the pro abortion side was. They
Speaker 1: essentially focus on two things. They focus on the very
Speaker 1: unscientific argument I guess if you even want to call
Speaker 1: it an argument, that this was about a woman's body,
Speaker 1: instead of differentiating that, of course, the unborn child is
Speaker 1: a separate body, that there are competing interests between that
Speaker 1: child and that mother. But also in Senator, maybe you
Speaker 1: can speak to this a little bit. They kept categorizing
Speaker 1: Rowe as being the super precedent, that because it is
Speaker 1: quote unquote settled law, that it simply cannot be overturned.
Speaker 1: This is not true in the history of our nation.
Speaker 1: Well it's not, and the Supreme Court has overturned a
Speaker 1: lot of precedents over the two hundred plus years of
Speaker 1: our nation's history. The justice that leaned in the hardest
Speaker 1: on saying that was Justice Brier and Listen. He was
Speaker 1: trying to find a way to save Rowe, and his argument,
Speaker 1: his argument really really stemmed from the decision in Casey.
Speaker 1: So a little bit of the history Rowe was nineteen
Speaker 1: seventy three. It struck down essentially all the laws across
Speaker 1: the country that banned abortion. It was a seven two decision.
Speaker 1: It was written by Harry Blackman, who had been an
Speaker 1: appointee of Richard Nixon and a Republican appointee. And Blackman
Speaker 1: had previously been general counsel of the Mayo Clinic. And
Speaker 1: Blackman was not a distinguished jurist. He was one of
Speaker 1: the least distinguished members to ever serve on the Court.
Speaker 1: And the Roversus weight opinion is a terrible opinion. It
Speaker 1: doesn't derive from the Constitution, it barely purports to. And
Speaker 1: Roversus Wade set up this this trimester formula. In the
Speaker 1: first trimester, the state had almost no leeway regulating abortion,
Speaker 1: and the second trimester they had more, and in the
Speaker 1: third they had significantly more. That's that doesn't come from
Speaker 1: the Constitution, doesn't come from the Bill of Rights, but
Speaker 1: it was invented in roversus. Wade. Fast forward to nineteen
Speaker 1: ninety two. Nineteen ninety two, You've had twelve years of
Speaker 1: Reagan Bush. You've had multiple Republican justices appointed to the Court.
Speaker 1: You had Sandra Day O'Connor appointed to the court. You
Speaker 1: had Justice Scalia appointed to the court. You had Anthony
Speaker 1: Kennedy appointed to the Court. You had David Suitor appointed
Speaker 1: to the Court. And in nineteen ninety two, the decision
Speaker 1: that everyone thought was going to overturn Roe versus Wade
Speaker 1: was a decision called Casey. And at the time, you know,
Speaker 1: it's a little bit like where we are now. It's
Speaker 1: part of why conservatives are wary even though the argument
Speaker 1: seems good. The argument seemed good, and Casey Casey concerned.
Speaker 1: The state of Pennsylvania had a whole series of laws
Speaker 1: they passed that were some fairly modest restrictions on abortion. So,
Speaker 1: for example, Pennsylvania required parental consent for a minor to
Speaker 1: get an abortion. Pennsylvania required informed consent before a woman
Speaker 1: could get an abortion. Pennsylvania required a twenty four hour
Speaker 1: waiting period. Pennsylvania also required spousal note of vacation, and
Speaker 1: when the case went up there, almost every observer said,
Speaker 1: rovers's way, it's going to be overturned. Well what happened.
Speaker 1: It wasn't overturned Casey. Casey reaffirmed row and it upheld
Speaker 1: most of the different Pennsylvania laws. So it upheld the
Speaker 1: parental consent aspect, it upheld informed consent, it upheld the
Speaker 1: twenty four hour waiting period, but it struck down spousal notification.
Speaker 1: And in Casey, you had three Justices O'Connor, Kennedy and
Speaker 1: Suitor who wrote this joint opinion, which is very strange.
Speaker 1: Normally an opinion is signed by one justice. None of
Speaker 1: them signed it. They wrote it together as a joint
Speaker 1: opinion because they were I think, really trying to hide
Speaker 1: from accountability for what they were saying. And they threw
Speaker 1: out rows trimester system and they replaced it with a
Speaker 1: new standard called undue burden. And we'll talk about that
Speaker 1: more in a minute. But Casey talked a lot about
Speaker 1: how Rowe was a super precedent, that that it had
Speaker 1: a high threshold to be overturned, and so Justice Bryer
Speaker 1: kept repeating the portions of the Casey opinion, saying Rowe
Speaker 1: was a super precedent because he's trying very hard to
Speaker 1: preserve it. Um. I'm not sure his arguments were very
Speaker 1: persuasive to his colleagues, though. We actually have a lot
Speaker 1: of great questions about this case, specifically from our Verdict
Speaker 1: plus subscribers. People are very interested in the nitty gritty
Speaker 1: the legality of this, not just the cultural aspect of abortion.
Speaker 1: Before we get to that, we've compiled a bunch of
Speaker 1: video clips or not video clips, audio clips from the
Speaker 1: Supreme Court oral arguments to address some of these questions.
Speaker 1: So I want to toss this to Michael Great, all right, Liz,
Speaker 1: we'll get back to you a little bit with the mailbag.
Speaker 1: And Senator, you've what you've laid out here has actually
Speaker 1: it's made me even more confused. It's not your fault.
Speaker 1: It's just the history of the way these decisions have
Speaker 1: gone on at the Court. So we've got Row, we've
Speaker 1: got Doe, which is different than Row, I take it,
Speaker 1: and then later on we've got Casey. And all of
Speaker 1: this affirms some right to an abortion, but the justification
Speaker 1: for the right to an abortion kind of changes, I guess. Actually,
Speaker 1: Justice Thomas, now in the Dabbs questioning, gets to the
Speaker 1: heart of this question. He says, what right is this
Speaker 1: really about? Take a lessen What constitutional right protects the
Speaker 1: right to abortion? Is it privacy? Is it autonomy? What
Speaker 1: would it be? It's liberty, your honor, It's the textual
Speaker 1: protection in the fourteenth Amendment that a state can't deprive
Speaker 1: a person of liberty without due process of law. And
Speaker 1: the Court has interpreted liberty to include the right to
Speaker 1: make family decisions and the right to physical autonomy, including
Speaker 1: the right to end a previability pregnancy. So simple question
Speaker 1: from Justice Thomas, what right are we talking about? It?
Speaker 1: If I talk about the right to have a gun,
Speaker 1: I can point to the Secondmendment. I say, there's my
Speaker 1: right to have Again, what is the right is abortion?
Speaker 1: And she says, no, it's it's liberty. In the fourteenth
Speaker 1: the men men maybe applied differently depending on the case
Speaker 1: you're talking about. So what, Senator, please help me? What
Speaker 1: is she talking about? So let me say at the
Speaker 1: outset that that I love Justice Thomas's voice, the deep,
Speaker 1: gravelly voice, And I'll tell you I've I've been blessed.
Speaker 1: I know Justice Thomas fairly well and spend time with him.
Speaker 1: When he laughs, it is like Santa Clause. It is
Speaker 1: the most unbelievably deep that that that is just spectacular,
Speaker 1: and he is he is a true American hero. Um.
Speaker 1: The reason he asked that question is because if you
Speaker 1: look at the Constitution, if you look at the Bill
Speaker 1: of Rights and you go look for the word abortion,
Speaker 1: you don't see it. Um. If you look for pregnancy,
Speaker 1: you don't see it. If you look for any authority
Speaker 1: for restricting and restricting and preventing states from from protecting
Speaker 1: unborn life, you don't see it. And there's a reason
Speaker 1: for that, which is that many of the states did
Speaker 1: so that that it had been the case for one
Speaker 1: hundred and fifty years of our nation's history that the
Speaker 1: states had the authority to prohibit abortion. You know the
Speaker 1: hippocratic oath, you know the oath that doctors take. Every
Speaker 1: doctor takes says I will not help a woman procure abortion.
Speaker 1: So there had been centuries of legal precedent that the
Speaker 1: states had the authority to do this. So how did
Speaker 1: we get to row. Well, to understand how we get
Speaker 1: to row, you have to get to it. You have
Speaker 1: to start with a decision called Grizzwold versus Connecticut, which
Speaker 1: was one of the precursors to Row. And it was
Speaker 1: a manufactured case that actually came out of Yale Law School.
Speaker 1: You're alma mater to teed up Grizzwold versus Connecticut. And
Speaker 1: and it was a woman who went to purchase contraceptives
Speaker 1: was denied the ability to purchase contraceptives pursuant to a
Speaker 1: state law that was rarely, if ever enforced, But they
Speaker 1: went and found someone to enforce it so that they
Speaker 1: could tee up this test case. The Supreme Court in
Speaker 1: Griswold versus Connecticut, struck down the prohibition on contraceptives. Look,
Speaker 1: I think a prohibition on contraceptives is incredibly stupid. It
Speaker 1: is very bad policy. I don't know any rational person
Speaker 1: in this country who believes contraceptives should be illegal. Well,
Speaker 1: we'll get into it lab. Sorry, we'll get into it later. Senator.
Speaker 1: Let's go on. Even Michael Knowles, I don't think believes
Speaker 1: that depends on what year you ask me, you know,
Speaker 1: as a young man. Yes, but Griswold actually the reasoning
Speaker 1: it it said, and this is where the Court got
Speaker 1: a little metaphysical. It said, it was the first major
Speaker 1: decision that created what's called the right to privacy, and
Speaker 1: Justice Thomas in that clip refers to the right to privacy,
Speaker 1: and the word privacy doesn't appear in the Constitution either.
Speaker 1: But what the Court said is is the Court said, well,
Speaker 1: the protections in the Bill of Rights have emanations. Basically,
Speaker 1: they glow, and those emanations cast panumbras a pannumbras a
Speaker 1: fancy word for a shadow. Now and within the pannumbras
Speaker 1: from the emanations we find the right to privacy. Okay,
Speaker 1: all right, fast forward to row. Within that right to privacy,
Speaker 1: Justice Blackman wrote, the right that came from a pannumbra,
Speaker 1: from an emanation. That, minds you, that rights in the
Speaker 1: Bill of Rights are casting. Is where the right to
Speaker 1: an abortion came from. One of the reasons why roversus Wade,
Speaker 1: even when it came down, was almost universally ridiculed as
Speaker 1: just almost incoherent, just just bad legal writing, not tied
Speaker 1: to the Constitution. Even liberals, you know, Ruth Bader Ginsburg
Speaker 1: was actually quite critical of the reasoning in roversus Wade.
Speaker 1: She agreed with the outcome the reason. Justice Thomas asked
Speaker 1: that as in Row Harry Blackman says, it comes from
Speaker 1: the right to privacy, that's coming from the numbers of emanations.
Speaker 1: Subsequent liberals have defended it as an autonomy interest and
Speaker 1: a liberty interest. So these are all different ideas that
Speaker 1: have been cast forth. Because abortion is not in the Constitution,
Speaker 1: they're trying to find another way to find it in there.
Speaker 1: And so, look, is there a liberty interest protected in
Speaker 1: the Fifth Amendment and fourteenth Amendment? Absolutely, but they also
Speaker 1: protect life and liberty. You're free to do what you wish,
Speaker 1: but that restriction always has limitations when it impacts the
Speaker 1: rights of another. And so I think it is a
Speaker 1: too cute by half argument to say it is within
Speaker 1: the liberty interest. And and but that I would say
Speaker 1: is the more modern liberal argument for the right to
Speaker 1: abortion is true to the extent they're trying to ground
Speaker 1: it anywhere um that they they try to ground it
Speaker 1: within a liberty interest. Although autonomy was the basis that
Speaker 1: Justice Kennedy found for striking down Texas's law criminalizing homosexual sodomy,
Speaker 1: and he talked about the right to autonomy. And in fact,
Speaker 1: there's a passage that that Justice Scalia ridicules as the
Speaker 1: sweet mystery of the universe passage where he says, I
Speaker 1: can't quote it exactly, but for each of us, the
Speaker 1: process of defining ourselves, our existence, and the sweet mystery
Speaker 1: of the universe is at the core of humanity. It's
Speaker 1: this like poetic gibberish. That's right, the right to define
Speaker 1: our own concept of existence. And which if that is
Speaker 1: the case, I do define myself as a professional Major
Speaker 1: League baseball player. That is my right, Senator, and please,
Speaker 1: I would appreciate if you would address me as such. Well,
Speaker 1: And Michael Baseball had been very very good to me.
Speaker 1: And that's from a Saturday Night Live before probably before
Speaker 1: you were born, when I was just a glint in
Speaker 1: my father's eye. That's true, but but about as coherent,
Speaker 1: by the way, as Justice Kennedy's argument. And it's so
Speaker 1: the case you were deciding as Lawrence v. Texas, which
Speaker 1: strikes down laws against homosexual activity. And by the way,
Speaker 1: to be clear, I think laws again homosexual activity every
Speaker 1: bit as assinine as laws against contraceptives. I would emphatically
Speaker 1: vote against those laws as a state legislators, as a
Speaker 1: member of the Senate, I don't think government has any
Speaker 1: business regulating in that instance the conduct of consenting adults.
Speaker 1: I think you ought to be able to do what
Speaker 1: you wish. But the reason Justice Thomas asked that question
Speaker 1: is there sort of three different buckets from which different
Speaker 1: people have sought to try to derive a right to abortion. Well,
Speaker 1: and to your point on Lawrence View, Texas Senator Scalia
Speaker 1: made this point. He said, there are plenty of things
Speaker 1: that are bad. There are plenty of things that I
Speaker 1: don't like, plenty of things that I do like and
Speaker 1: that are good that are just simply not in the constitution.
Speaker 1: He said, there can be things that are SBC stupid
Speaker 1: but constitutional. And so as you're describing this right to
Speaker 1: an abortion would appear to be a conclusion in search
Speaker 1: of an argument, inclusion in search of evidence. And the
Speaker 1: evidence keeps changing, and the arguments keep contradicting each other sometimes,
Speaker 1: but they come down and they say there's a right
Speaker 1: to an abortion, and they reaffirm it. So then the
Speaker 1: question is, and this was a question that the judges
Speaker 1: and the justices are dealing with, is what about starry decisives?
Speaker 1: What about precedent. Let's say you've got a really bad decision. Well,
Speaker 1: what if it's been on the books for fifty years,
Speaker 1: doesn't it have to remain there? A Justice. Cavanaugh listed
Speaker 1: a number of landmark cases in the Court's history that
Speaker 1: we're not exactly settled law. Take a listen, and history
Speaker 1: helps think about stary decisis as I've looked at it,
Speaker 1: and the history of how the courts applied star decisis,
Speaker 1: And when you really dig into it, history tells a
Speaker 1: somewhat different story I think than is sometimes assumed. You
Speaker 1: think about some of the most important cases, the most
Speaker 1: consequential cases in this Court's history, there's a string of
Speaker 1: them where the case is overruled. President Brown v. Board
Speaker 1: outlawed separate butN equal. Baker versus car which set the
Speaker 1: stage for one person, one vote, West Coast Hotel, which
Speaker 1: recognized the state's authority to regulate business, Miranda versus Arizona,
Speaker 1: which required police to give warnings when the right about
Speaker 1: the right to remain silent and to have an attorney.
Speaker 1: President to suspects and criminal custody Lawrence fee Texas said
Speaker 1: that the state may not prohibit same sex conduct. Map
Speaker 1: versus Ohio, which held that the exclusionary rule applies to
Speaker 1: state criminal prosecutions to exclude evidence obtained in violation of
Speaker 1: the Fourth Amendment Gideon versus Wainwright, which guaranteed the right
Speaker 1: to counsel in criminal cases, or burgha. Fell which recognized
Speaker 1: a constitutional right to same sex marriage. In each of
Speaker 1: those cases, and that's a list, and I could go on,
Speaker 1: and those are some of the most consequential horton in
Speaker 1: the Court's history. The court overruled precedent. And it turns
Speaker 1: out if the court in those cases had had listened
Speaker 1: and they were presented in with arguments in those cases
Speaker 1: adhere to precedent in Brown v. Board and here to
Speaker 1: Plessy on West Coast Hotel, adhere to Atkins, and adhered
Speaker 1: to Lochner. And if the Court had done that in
Speaker 1: those cases, uh, you know, the country would be a
Speaker 1: much different place. So Justice Kavanaugh is asking, Okay, you're
Speaker 1: you're you don't have much of a legal or constitutional
Speaker 1: argument for abortion. You're staking a lot of your argument
Speaker 1: on starry decisive, on the idea that precedent, even even
Speaker 1: a badly decided case, should should carry some weight. Well,
Speaker 1: what about all these other cases that overruled precedent and
Speaker 1: so so which is it. Are we going to celebrate
Speaker 1: cases that overrule bad precedents or are we going to
Speaker 1: just with precedence even if they were egregiously decided. Well,
Speaker 1: that that question that you just played from Justice Kavanaugh
Speaker 1: is probably the single most encouraging thing that happened at
Speaker 1: the oral argument. I wrote at length in my book
Speaker 1: One Vote Away that I was quite concerned about Justice
Speaker 1: Kavanaugh and how he would rule on a challenge to Row.
Speaker 1: And I was quite concerned about Justice Course which as well,
Speaker 1: and but especially Kavanaugh. And basically, let me step back
Speaker 1: for a second. What played out at the oral argument
Speaker 1: is I listened to it and read through the transcript.
Speaker 1: Was I think there are six votes to uphold the
Speaker 1: state law, the ban on abortions after fifteen weeks. All
Speaker 1: but the three liberals are going to vote, I believe
Speaker 1: to uphold the law. Chief Justice Roberts, I believe does
Speaker 1: not want to overrule Row. And at the argument he
Speaker 1: was spending much of his time casting about for a
Speaker 1: way can the Court do something smaller uphold the state
Speaker 1: law but not overrule Roe versus Wade. And so he's
Speaker 1: trying to find you've got three votes on one side
Speaker 1: Roberts just needs one. He needs to get Kavanaugh or
Speaker 1: Gorsuch or Barrett. So Roberts is hunting for one additional vote.
Speaker 1: If Roberts gets one additional vote, Rowe won't be overturned.
Speaker 1: And so the entire argument. And John Roberts, as you know,
Speaker 1: is someone I know very very well. He liked me
Speaker 1: clerk for Chief Justice Rehnquist. He was an extraordinarily talented
Speaker 1: Supreme Court argument advocate. And so he's casting about for essentially,
Speaker 1: don't we can just uphold this law and we don't
Speaker 1: have to go so far as overturning Rowe. That question
Speaker 1: from Kavanaugh is really encouraging because because he's going through
Speaker 1: being landmark decisions of the Supreme Court. Most of those
Speaker 1: decisions I talk about in the book One Vote Away.
Speaker 1: I go into the history of a lot of those
Speaker 1: different decisions and how they overturned precedent. The biggest one,
Speaker 1: Brown versus Board of Education. Brown versus Board of Education
Speaker 1: decided nineteen fifty four struck down segregated public schools, and
Speaker 1: it overturned a decision called Plessy versus Ferguson and Plessy.
Speaker 1: It's one of the most disgraceful decisions in the history
Speaker 1: of the Supreme Court. The Court upheld something called separate
Speaker 1: but equal. It concluded that even though the Constitution gives
Speaker 1: everyone equal protection of the laws, that it was consistent
Speaker 1: with a constitution for the government to say one school
Speaker 1: for black children, one school for white children, one water
Speaker 1: Fountain and Brown overturned Plessy. It was absolutely the right
Speaker 1: thing to do. Plessy was an abomination. You know, Justice
Speaker 1: Kavanaugh began with Brown and went through a whole litany
Speaker 1: of big, major cases that were overturning precedents. And the
Speaker 1: reason that's encouraging as you listen to that question, it
Speaker 1: suggests pretty strongly that Justice Kavanaugh is open to and
Speaker 1: leaning towards, overturning Row. That's a big, big deal, particularly
Speaker 1: because the questioning from Gorsten and Barrett was encouraging as well.
Speaker 1: So if I were counting noses right now, we may
Speaker 1: well get to five on getting the Court out of
Speaker 1: the business of legislating on questions of abortion, and we
Speaker 1: may well send that back to the States instead, which
Speaker 1: is where where it has always belonged under the Constitution. Well,
Speaker 1: that is that is what I want to get into,
Speaker 1: beyond the legal arguments which I think you have done
Speaker 1: as good a job as anybody possibly can to helping
Speaker 1: me to understand what the pro abortion side is arguing here,
Speaker 1: and it's it's not very coherent, and even many people
Speaker 1: who support abortion have agreed that the way the cases
Speaker 1: were decided doesn't make any sense and the legal logic
Speaker 1: is not really there. But now we're talking about people,
Speaker 1: we're talking about votes. Who actually is going to have
Speaker 1: the guts to do this? Thomas, he's going to overrule
Speaker 1: Row one hundred percent. Alito, he's going to overrule Row. Almost. Yeah,
Speaker 1: you've got the three liberals, they're certainly not. Then you've
Speaker 1: got maybe a fourth liberal, chie Chief Justice John Roberts,
Speaker 1: who probably, as you think, does not want to overrule Row.
Speaker 1: Kavanaugh you like his arguments. So you're also saying then
Speaker 1: that Barrett and Gorsets, you liked what they were asking.
Speaker 1: You felt that the way they were approaching the oral
Speaker 1: arguments showed that they were leaning toward overruling. I did
Speaker 1: that they're questioning was quite good. One of the things
Speaker 1: that they emphasize as the point I made that if
Speaker 1: Row is overturned, it doesn't immediately ban abortion nationwide. It
Speaker 1: instead leaves it to the states. And by the way,
Speaker 1: there are a bunch of blue states in which abortions
Speaker 1: will still be widely of ailable, you know, New York, California.
Speaker 1: Nobody thinks the state legislatures in those states are going
Speaker 1: to suddenly wake up tomorrow and ban or even significantly
Speaker 1: restrict abortion. You and I would hope and pray that
Speaker 1: they would, But as a political reality, that's not happening,
Speaker 1: even without Rovers's weight on the books. What we would
Speaker 1: see instead is each state adopting different standards, and there
Speaker 1: would be a variety of them. And you know, Justice
Speaker 1: Gorsuch one of the reasons I was very encouraged Gorsuch.
Speaker 1: Gors It's a very smart lawyer, and he pressed the
Speaker 1: lawyers on. Okay, so to uphold the state law, rowe
Speaker 1: had a standard it made up of viability that basically said,
Speaker 1: before the unborn child is viable can live outside the womb.
Speaker 1: Before the unborn child is viable, the state can do
Speaker 1: very very little to protect life of the unborn child.
Speaker 1: After viability, the state can do more. Okay, Justice Blackman
Speaker 1: made that up, And in fact, there's an interesting exchange
Speaker 1: where Chief Justice Roberts notes that in the Blackman papers.
Speaker 1: So this is after he retired as a justice, he
Speaker 1: released his papers, his notes on writing Roversus Weight, and
Speaker 1: he admits in his notes that viability was just a
Speaker 1: concept he made up from when he worked at the
Speaker 1: Mayo Clinic and had nothing to do with the Constitution.
Speaker 1: It just he pulled it out of his rear end
Speaker 1: and invented it. And it's it's it's a funny little
Speaker 1: exchange because Roberts is like, wow, this is sort of
Speaker 1: an odd source, the Blackman papers, but I guess they're there,
Speaker 1: and he admits it's made up. And what Roberts is
Speaker 1: pushing for so he's to uphold the state statute. Here
Speaker 1: you have to reject viability because viability is twenty four
Speaker 1: to twenty six weeks, not fifteen weeks. And right now,
Speaker 1: scientifically a fifteen week unborn child can't live of outside
Speaker 1: the mother's womb. And there's another issue, which is that
Speaker 1: viability does move, Yes, he moves with scientific advancements. So
Speaker 1: whereas a baby could previously could not survive before twenty
Speaker 1: four weeks, now babies can survive at twenty one or
Speaker 1: even twenty weeks. And what's the argument that's being made
Speaker 1: for the Mississippi law is that the baby cannot survive
Speaker 1: at fifteen weeks. But he looks like a baby. The
Speaker 1: baby's got all his little baby parts, He's got his
Speaker 1: little fingers and his little toes. He he seems to
Speaker 1: have all the features of what we would call a baby.
Speaker 1: But because he doesn't meet that standard, you have to
Speaker 1: you have to change the standard. The standard that you
Speaker 1: observe was just pulled out of thin air. Rovers's way
Speaker 1: to establish the trimester system, which Justice Black been made
Speaker 1: up in Casey. The joint opinion, the opinion that was
Speaker 1: written by Kennedy and O'Connor and Suitor throughout the trimester
Speaker 1: system said it's made up. It's no longer the law,
Speaker 1: and so it actually overruled part of Row. It reaffirmed Row,
Speaker 1: but it throughout part of ROW, and it invented a
Speaker 1: brand new test. And the brand new test was that
Speaker 1: states can have restrictions on abortions, but they cannot have
Speaker 1: an undue burden on the right to abortion. So they
Speaker 1: can apparently have a due burden, but not an undue burden.
Speaker 1: And undue burden is not a term found anywhere in
Speaker 1: the Constitution. It's not a term that means anything in law.
Speaker 1: It's just something they made up. No undue burdens, which
Speaker 1: puts the court due burdens fine in the business of
Speaker 1: measuring how much of a burden is due. So Roberts
Speaker 1: was basically arguing at the oral argument, well, viability was
Speaker 1: an arbitrary, made up line. Even the Blackman papers tell
Speaker 1: us that, so if we jettison viability, we can uphold
Speaker 1: the Mississippi law. Right, yes, so we don't have to
Speaker 1: overturn Row or Casey because if we jettison viability, we
Speaker 1: can simply say this is fine. Gorsitch was pressing hard
Speaker 1: on the defenders of abortion, saying, Okay, if viability is
Speaker 1: not the line, how do we draw a line? How
Speaker 1: do we draw a workable line? This is a fifteen
Speaker 1: week prohibition, how about twelve weeks? How about ten? How
Speaker 1: about nine? Like, how do we draw And what was
Speaker 1: interesting is the defenders of abortion the Biden administration said yeah,
Speaker 1: it's basically unworkable. We can't draw those lines. There's no ways.
Speaker 1: Courts are just making it up to draw those lines.
Speaker 1: And what's fascinating about the look Gorsitch is pushing on
Speaker 1: that because if they admit there's no workable legal standard.
Speaker 1: That is one of the major factors under starring decisive
Speaker 1: star decisis is the Latin word for respecting precedent. That's
Speaker 1: one of the major factors for overturning a precedent. So
Speaker 1: when Gorseitch is asking without viability, is the legal rule unworkable?
Speaker 1: What he's saying is and therefore, shouldn't we overturn Row
Speaker 1: versus Wade? In other words, is there not a middle ground?
Speaker 1: Don't we have to go all the way? And gorse
Speaker 1: was pretty aggressive on that, and Barrett was pretty good
Speaker 1: on that, and so that combination led me. I was
Speaker 1: quite skeptical going into arguments that there were five votes
Speaker 1: to overturn Row. I'm pretty hopeful right now. So before
Speaker 1: we get to mailback, as always we're running late, I
Speaker 1: have to touch on what I think was the most
Speaker 1: persuasive argument made on the pro abortion side. It was
Speaker 1: not made by one of the lawyers. It was made
Speaker 1: by one of the judges, Sonya Sodomyor, who said, if
Speaker 1: you overrule Row versus how will we ever get the
Speaker 1: stench of politicization out of the court and take a listen,
Speaker 1: will this institution survive the stench that this creates in
Speaker 1: the public perception that the Constitution and it's reading are
Speaker 1: just political acts. Senator, how are you going to get
Speaker 1: the stench out of the court, Well, you know, they're
Speaker 1: the ones that put the stench there. It was, and
Speaker 1: Row played a big part in putting the stench there.
Speaker 1: Ever since that day, the court has been deeply political,
Speaker 1: and it is why. And I got to say, you
Speaker 1: listen to the argument. Justice Sotobayor was relentless defending Rowe,
Speaker 1: defending Casey. She she was fighting, to be honest, she
Speaker 1: was a better advocate than either of the two lawyers
Speaker 1: standing at the podium arguing for abortion. Sodomayor was relentless.
Speaker 1: Now you also saw Briar. Briar does it more as
Speaker 1: a law professor, more in the abstract. And you saw Kagan.
Speaker 1: Kagan is the best litigator of the three liberals, and
Speaker 1: so she was trying to find ways to push and
Speaker 1: she recognizes. I think Kagan recognizes this law is going
Speaker 1: to be upheld. But I think Kagan is quite interested
Speaker 1: in who can we pick off Kavanaugh, Gorsich, Barrett to
Speaker 1: join with Roberts and don't overturn Row. And so Kagan
Speaker 1: was very focused on that, and that's the question to
Speaker 1: one of the three go for the middle ground or not.
Speaker 1: Sodomayor gave a speech that frankly, is not all that
Speaker 1: different in her questions from what would be given by
Speaker 1: Elizabeth Warren or Maizie Harrono in the Senate. It was
Speaker 1: a political speech because Withrow, the Court jumped emphatically into
Speaker 1: the political sphere rather than the legal and judicial sphere,
Speaker 1: which is one of the biggest reasons why I think
Speaker 1: the Court should return it to the political sphere and
Speaker 1: let the people decide. And by the way, one of
Speaker 1: the reasons abortion is so contentious so angry is because
Speaker 1: there's no outlet. Listen, we disagree, and abortion is a
Speaker 1: personal it is an emotional it is the feelings on
Speaker 1: both sides are genuine. They're not making it up that
Speaker 1: you know, both sides really really believe it. Normally, in
Speaker 1: the democratic process, there's a safety valve to work that
Speaker 1: out because you can argue back and forth, and you
Speaker 1: can try to persuade each other, and sometimes you can
Speaker 1: reach middle grounds, and all of that makes our democracy work.
Speaker 1: But when you have nine unelected judges say I don't
Speaker 1: give a damn what you think about it. I'm smarter
Speaker 1: than you are, and we know better, and we're going
Speaker 1: to take it away from you. It produces the kind
Speaker 1: of intense division that we've seen, and based on this
Speaker 1: oral argument, I think we have a real chance of
Speaker 1: seeing the end of an era that was, as you
Speaker 1: put it, a grievous error. Well, in the spirit of
Speaker 1: hearing from the people and making their voices heard, we
Speaker 1: should get to the mail back. So let's bring our
Speaker 1: friend Liz back. Liz, what do you have for us? Well,
Speaker 1: A lot of people, a lot of our subscribers, a
Speaker 1: lot of our friends on Verdict Plus, asked about this
Speaker 1: case specifically. I think they're going to be just enthralled
Speaker 1: to listen to this legal breakdown. If you aren't already
Speaker 1: a subscriber on Verdict Plus, join us. It's Verdict with
Speaker 1: Ted Cruise dot Com slash plus. If you're not already
Speaker 1: a part of the community, now's the time to jump
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Speaker 1: That's fifty six dollars. This is the cheapest price you'll
Speaker 1: ever see. So now is the time to do this.
Speaker 1: Go to verdict with Ted Cruz dot com slash plus. So, Senator,
Speaker 1: the first question I want to ask is from someone
Speaker 1: whose username is twin sister. She says, why hasn't anyone
Speaker 1: on the pro life side argued, if fetus is a
Speaker 1: person and therefore entitled to due process, as the Fifth
Speaker 1: and Fourteenth Amendments mandate, before depriving him of life, shouldn't
Speaker 1: the onboard child be given the equal protection under the law. So, look,
Speaker 1: that is a very good question, and it is a
Speaker 1: question that is debated in legal circles. You are right
Speaker 1: that the Constitution, the Fifth and fourteenth Amendments both protect
Speaker 1: the rights to life, liberty, and property. That you can't
Speaker 1: be deprived of any of the three without due process
Speaker 1: of law. There's another decision of the Supreme Court called
Speaker 1: caroline Products, and in Carolyne Products footnote four and lawyers
Speaker 1: are weird because footnote four of Carolene Products is actually
Speaker 1: a thing that lawyers refer to. It describes that the
Speaker 1: protections of the due process clause and of equal protection
Speaker 1: are more significant for what discreet and insular minorities. So
Speaker 1: that's the phrase and footnote for of Carolyn Products. Discreet
Speaker 1: and insular minorities mean minorities that are readily identifiable, that
Speaker 1: are insult In other words, they're weaker and can't protect themselves.
Speaker 1: And what Carolyn products that is. Look, they can't use
Speaker 1: the democratic process to protect themselves because they're discreet and
Speaker 1: insult and minorities, and so the constitutional protections are more
Speaker 1: robust concerning them. And there have been legal scholars who
Speaker 1: have pointed out it is difficult to imagine a more
Speaker 1: discreet and insular minority than an unborn child, who by
Speaker 1: definition cannot protect herself for himself and the political process,
Speaker 1: you know, Reagan famously equipped. You know, I notice all
Speaker 1: the people in favor of abortion have already been born,
Speaker 1: and the unborn should are not given a voice in this.
Speaker 1: That is certainly a legal argument one can make. It
Speaker 1: is not an argument the Court has ever gone so
Speaker 1: far as to embrace or suggest, and look, the consequence
Speaker 1: of that argument would be a Supreme Court decision protecting
Speaker 1: the right to life across the country. There are none
Speaker 1: of the nine justices on the Court who have suggested
Speaker 1: they would go that far, each of them has said
Speaker 1: the Constitution is silent on this, and so it is
Speaker 1: left to the States and to Congress to regulate it.
Speaker 1: And by the way, even the pro life lawyers did
Speaker 1: not make this argument. They actually specifically stayed away from
Speaker 1: this argument, perhaps to try to appeal to some of
Speaker 1: those justices who are on the fence. Michael, the next
Speaker 1: question is less of a legal question and more of
Speaker 1: a cultural legal hybrid question. So I want to focus
Speaker 1: on you for this one. It's from John Bennett. He
Speaker 1: says during the Supreme Court case Stobs versus Jackson, the
Speaker 1: leading pro abortion argument was the negative economic impact childbearing
Speaker 1: or child rearing is on women or has on women,
Speaker 1: which poses the question that doesn't it also have an
Speaker 1: economic impact on fathers. If fathers don't have a say,
Speaker 1: then why are they responsible for child support? If they
Speaker 1: are responsible for child supports, shouldn't they also have a
Speaker 1: say in the termination of their child's life and given
Speaker 1: the option to keep the child and release the mother
Speaker 1: of her responsibility. Well, I think certainly a father should
Speaker 1: have to say and whether or not a child will
Speaker 1: live or die and be killed through some obscene pseudomedical process.
Speaker 1: But I don't think that we need to make an
Speaker 1: economic argument. I think the observation is really quite good
Speaker 1: that the pro abortion side is now nakedly making a
Speaker 1: money argument. They're saying, well, look, I know you might
Speaker 1: decide to keep your kid or give up your kid,
Speaker 1: but if you keep your kid, it's going to cost
Speaker 1: you money. And if you give up your kid, you
Speaker 1: can sacrifice him to the idol of lucer and mammon.
Speaker 1: This is nothing new. I'm glad you've phrased it as
Speaker 1: a cultural question. This is nothing new. We've seen this
Speaker 1: in cultures from the beginning of the world. But it's wrong.
Speaker 1: It is wrong to view your kid as a money
Speaker 1: bag or an economic drag or even an economic benefit.
Speaker 1: Your kid is your kid. Your kid has made in
Speaker 1: the image of God and to some degree in your image,
Speaker 1: and is worth more than dollars and cents. And this
Speaker 1: is a big problem. So it's a clever argument to
Speaker 1: try to make some economic argument on the right, but
Speaker 1: I just think it's completely missing the points. It is
Speaker 1: simply wrong, and there's no amount of mammon or lucre
Speaker 1: that could convince me or I think any reasonable person otherwise. Well,
Speaker 1: and Michael let me jump in on this also because
Speaker 1: this was a point that Justice Barrett engaged in where
Speaker 1: she pointed out that now states all across the country
Speaker 1: have enacted so called safe haven laws where if a
Speaker 1: mother gives birth to a child and that mother does
Speaker 1: not feel she can care for that child, that you
Speaker 1: can go and hand over the child and the child
Speaker 1: will be cared for. And so it's just a protect
Speaker 1: and in law if for whatever reason, whether economically, if
Speaker 1: the mother's destitute and can't afford to provide for the child,
Speaker 1: or for whatever reason, there is an option to hand
Speaker 1: over the child to be cared for another and it
Speaker 1: is And so Justice s. Barrett asked about that and said, look,
Speaker 1: doesn't one of the arguments that was used by the
Speaker 1: majority in Row and used by the majority in Casey
Speaker 1: was this economic argument that it could be a financial
Speaker 1: burden on a mother who is not in a doesn't
Speaker 1: want to have a child at that point, And Justice
Speaker 1: s Barrett said, well, look, hasn't this change now that
Speaker 1: at least the economic consequence if you don't want to
Speaker 1: bear it. The states have enacted laws to enable an
Speaker 1: alternative that protects the child's life without imposing a financial
Speaker 1: burden on you. And she also pointed out in the
Speaker 1: second line of questioning adoption, which is obviously another avenue
Speaker 1: of that and an adoption. I think it was her
Speaker 1: questions point out that it was mentioned only in like
Speaker 1: brief passing in row but not really considered any any level.
Speaker 1: That that that with adoption, that is another avenue that
Speaker 1: if you have a mother who does not believe she
Speaker 1: is in position to raise the child, that she has
Speaker 1: an option, uh that that that can still preserve the
Speaker 1: life of the child. And this is such a great point, Senator,
Speaker 1: and it's it's one that very few people seem to
Speaker 1: understand the reality of because what the pro abortion side
Speaker 1: will say is that there are so many orphanages and
Speaker 1: the foster system teeming with children who are not being adopted,
Speaker 1: and therefore adoption is not a viable alternative. But it's
Speaker 1: it's really hiding the ball, it's really misrepresenting what's going on.
Speaker 1: It's true it's very difficult for older children to be adopted,
Speaker 1: and there are lots of problems in the foster care system,
Speaker 1: and of course one could speak for hours about that
Speaker 1: sort of thing, But when we're talking about babies who
Speaker 1: are being put up for adoption as newborn babies. There
Speaker 1: there are an estimated thirty six couples. For every newborn
Speaker 1: baby in the United States who has put up for adoption,
Speaker 1: thirty six couples who want to adopt that baby. So
Speaker 1: there is absolutely no shortage of demand to put In
Speaker 1: economic terms, there's no shortage of loving homes. If a
Speaker 1: woman feels I am not at a place in my
Speaker 1: life where I can care for this baby, there are
Speaker 1: so many avenues adoption and as you say, laws that
Speaker 1: will enact these safe havens, So the economic argument does
Speaker 1: not carry water. There's also some kind of glorious poetic justice,
Speaker 1: I think in justice Amy Barrett or Amy Coney Barrett
Speaker 1: sitting up there, the mother of seven children, this woman
Speaker 1: who is just so distinguished her career. She has achieved
Speaker 1: the pinnacle of what you can achieve when you are,
Speaker 1: you know, a lawyer the way that she is, and
Speaker 1: her children have empowered her, not held her back. So
Speaker 1: there's some kind of, like I said, poetic justice in that.
Speaker 1: On that note, anybody who wants to submit a question
Speaker 1: for next week's episode of Verdict, you can do so
Speaker 1: at Verdict with Ted Cruz dot com. Slash Plus. Become
Speaker 1: a subscriber on Verdict Plus, and you will behind the
Speaker 1: scenes access to Senator Ted Cruz to ask questions that
Speaker 1: we will answer right here on the show. So often
Speaker 1: we're talking about how everything is just going to hell
Speaker 1: in a handbasket, and you know, the news is all terrible,
Speaker 1: but this is really You have convinced me, Senator, that
Speaker 1: there really is a concrete reason to hope here, specifically
Speaker 1: when it comes to this case, to the end of
Speaker 1: a grievous error. But we'll have to hold it there.
Speaker 1: Thank you, Senator. I'm Michael Knowles. This is Verdict with
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