Someone leaks a draft of the Supreme Court decision on Roe versus Wade, and apparently, a majority is now ready to end the non-existent constitutional right to abortion, and the left goes absolutely berserk. This is the biggest breaking news morning in, I don t know, about half a century in terms of the legal sphere. Because last night, a leaked decision by Justice Samuel Alito was to basically overrule Roe v. Wade, return the issue of abortion to the states where it originally resided, and declare that the Constitution has nothing to say about abortion. And the fact that this was leaked is insane. Never, in the history of the court, has a decision been leaked that was so dramatically different from what was actually written by the court itself. It's time to stand up against big tech. Protect your data at ExpressVPN.org/ProtectYourData. Today's show is sponsored by Express VPN. To find a list of our sponsors and show-related promo codes, go to gimlet.fm/OurAdvertisers. To learn more about our sponsor and our sponsor, check out our VIP membership program, which includes VIPRE and VIPRE VIPRE membership packages, which include a 3-piece VIP membership package that includes a 7-piece cleaning set, including a free personal training membership, and a 5-piece retail experience, including an Audible membership and a VIP membership, plus a VSCO membership membership, for which you get two-piece of the choice of our choice of VOCALPRONE and a T-shirt and a VOGUE PRICE AND A MONTH AND T-CASTING PRINGET AND A MEDITATION AND A VOTING PRONE AND A T-PRONE AND MONTRY AND A SPOT AND A CHECK AND A PREDCAST AND A PATREON AND A MICROPODCAST AND AIRPRISE AND A PLACE TO BUY A MONICA AND A FINGERPRISE RECIPE AND A FRIEND AND A GRIP AND A BUY AND A HEAD AND A PAIRD RECIPION AND A THIRD THING AND A SUPPORTER TO CONFIRM THE ENTREPRISE PRINGLE AND A LABOR AND A BREAKER AND A CITY AND A LINK TO ACCORDING TO A VOTE IN A VIRAL RECORD AND A CRY? LINK TO OUR FACEBOOK GROUP AND LINKS TO OUR INSTAGRAM AND LINKED IN THE PODCAST?
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00:01:17.000You may not have known it, but it is true.
00:01:46.000We'll start with the second story first.
00:01:48.000So last night, Politico reported that a draft decision by Justice Samuel Alito that had achieved a majority of Supreme Court support, apparently five votes in favor, was to basically overrule Roe v. Wade.
00:02:00.000Not basically, entirely overrule Roe v. Wade, entirely overrule Planned Parenthood v. Casey, and return the issue of abortion to the state legislatures where it originally resided.
00:02:10.000And the fact is that the Constitution of the United States has nothing to say about abortion, which means that states all over the United States had various laws with regard to how liberal they were going to be on abortion or whether they were going to ban the killing of the unborn entirely.
00:02:23.000That was the status of the law up until 1973 when the Supreme Court On the basis of no precedent, on the basis of nothing in the constitutional text, on the basis of no real logic, decided to simply usurp the issue, and then top-down, a bunch of non-elected judges decided that they were going to decide the issue for all of America.
00:02:40.000And they put in place this ridiculous viability standard that had nothing to do with reality, and then fast-forward to Planned Parenthood versus Casey, and they put in place this undue burden standard, which again had nothing to do with the text of the Constitution, or anything to do with the nation's history, or biology, or anything.
00:02:53.000So, last night Politico leaked that this decision by Samuel Alito has a majority support and is going to strike down Roe vs. Wade.
00:03:00.000The leak is an unbelievable breach of every ethic the Supreme Court has ever held onto.
00:03:08.000The Supreme Court has voted to strike down the landmark Roe vs. Wade decision according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico.
00:03:18.000The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision, Planned Parenthood v. Casey, that largely maintained the right.
00:03:30.000Now, the fact that this was leaked is insane.
00:03:36.000No draft decision in the history of the court has been disclosed publicly while a case was still pending, according to Politico.
00:03:44.000And it dramatically undermines legitimacy of the court because when you have draft decisions that are now being circulated, the idea is, and there's only one reason this happened, and I guarantee you 100% this came from some clerk on the left of the aisle.
00:03:58.000This came from I would imagine one of Justice Sonia Sotomayor's clerks who decided to be a hero of the Republic and leak out the draft majority decision in the desperate hope that one of two things would happen.
00:04:09.000One, the public would bring such extraordinary pressure to bear on the justices voting in favor of Alito's opinion that one of them switched over.
00:04:16.000They were able to leverage threats, threats of violence, intimidation against these justices to get one of them to flip.
00:04:23.000Or two, you got Democrats in the Senate and the House and in state legislatures everywhere to immediately snap into place and start passing extraordinarily intrusive pro-abortion laws.
00:04:36.000And you're starting to see this happen, right?
00:04:37.000Democrats are already saying, well, we should just kill the filibuster and we should pass a federal law enshrining a right to abortion.
00:04:43.000That isn't going to happen, but that is what the call is from the left side of the aisle.
00:04:49.000The leak is deliberately made in order to put these Supreme Court justices in danger and to jog Democrats to go ahead and pass some sort of federal law making abortion the law of the land from the federal legislative level.
00:05:04.000The person who did this should be prosecuted to the fullest extent of the law, to the extent that they've broken the law.
00:05:08.000You would imagine that this is a leak of certain classified information.
00:05:14.000I don't mean national security classified.
00:05:15.000I mean that when you are in a position with the federal government, you have to sign contracts that mean that you are not allowed to make public the private information that exists at the level of the government.
00:05:25.000This is true in virtually every government agency.
00:05:27.000At the very least, this is civil liability for the person who leaked this majority opinion.
00:05:33.000And it could theoretically be criminal.
00:05:35.000It should be referred to the FBI and the DOJ for full-scale investigation.
00:05:38.000Justice Roberts needs to lead the way on that.
00:05:40.000And if there's any evidence whatsoever that the clerk in this particular case did this at the behest of the justice, whichever justice allowed for this, if that's what happened here, that justice needs to be impeached.
00:05:51.000And that would be true no matter which side of the aisle we were talking about here.
00:05:54.000Now, the left, of course, will make the leaker the hero of the republic because, as we know, the left is perfectly fine with illegal leaks so long as those illegal leaks cut in their favor.
00:06:03.000They're not a fan of totally non-illegal leaks like, say, Hunter Biden's laptop, but they are a very big fan of illegal leaks that harm Republicans and completely baseless leaks that harm Republicans.
00:06:15.000IRS leaks of tax information, totally fine with it.
00:06:18.000They're fine with disseminating the completely unverified Steele dossier for years on end in order to prop up a false narrative that Donald Trump was a stooge of the Russians.
00:06:26.000When it comes to a leak like this, you will imagine that this will be treated as heroism by the left.
00:06:32.000But the bottom line is, this sort of leak dramatically undermines the court.
00:06:36.000And it is designed, once again, to bring pressure on Supreme Court justice, which just demonstrates, for the left, the rule of law doesn't mean crap.
00:06:41.000They don't care about the rule of law.
00:06:43.000They never have cared about the rule of law.
00:06:44.000When they say that they care about the rule of law and quote-unquote democracy, what they mean is, we want our way.
00:06:50.000And if that means that we breach the rule of law by having people leak out confidential Supreme Court internal draft decisions, and again, it's a draft decision, which means that it was likely going to change before it was finally issued.
00:07:03.000It's that it can be circulated, and then you have dissents written, and then the majority usually responds to the dissents.
00:07:07.000Okay, so this is not the final form of the opinion, even if this had been the basis of the opinion that eventually was issued by the court.
00:07:19.000It dramatically undermines the legitimacy of the Supreme Court and the Supreme Court system completely.
00:07:24.000And of course, then you have the left saying we should kill the filibuster entirely and we should just cram through a law.
00:07:30.000Slow clap for all of the norms of democracy must be upheld crew.
00:07:34.000Also of note, as we'll get to in a little while, Democrats are shrieking to the heavens, rending their garments, wailing, wailing, Pouring, wearing staff cloth, pouring ashes upon their heads over the possibility that this issue is going to be returned to the states.
00:07:51.000They're saying this is the death of democracy.
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00:09:16.000According to Politico, the unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
00:09:25.000A draft opinion offers an extraordinary window into the justice's deliberation.
00:09:28.000Some court watchers predicted the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent.
00:09:35.000I thought that the court would probably split the baby literally and figuratively here.
00:09:39.000A person familiar with the court's deliberations Said that four of the other Republican-appointed justices, Thomas, Gorsuch, Kavanaugh, and Barrett, had voted with Leto in conference among the justices after hearing oral arguments in December, and that lineup remains unchanged as of this week.
00:09:53.000Apparently, the three Democratic-appointed justices Breyer, Sotomayor, and Kagan were working on one or more dissents.
00:09:59.000Justice Roberts, it was unclear which way he was going to go on this, but apparently he had not voted to join the majority of opinion, of course, because what else can you expect from one of the worst Republican picks for justice of the last 30 years?
00:10:11.000The document, labeled as a first draft of the majority opinion, included a notation that it was circulated among the justices on February 10th.
00:10:18.000A Supreme Court spokesperson declined to comment or make another representative of the court available to answer questions.
00:10:24.000The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws.
00:10:29.000The disclosure of the draft of Alito's majority opinion, a rare breach of Supreme Court secrecy and tradition around deliberation, comes as all sides in the abortion debate are girding for the ruling.
00:10:41.000The Chief Justice typically assigns majority opinion when he is in the majority.
00:10:44.000When he is not, that decision is typically made by the most senior justice in the majority.
00:10:51.000It is not nearly as much of a major story as the opinion itself.
00:10:55.000So if, in fact, the Supreme Court is about to overturn Roe versus Wade, it is going to be A bomb in the middle of American politics.
00:11:02.000Now, the long-term effects are going to be really salutary for American politics because one of the things that's going to happen here is that the states are then going to pick up where they left off, meaning Florida and Texas and Alabama and Mississippi are all going to regulate abortion differently than California or New York, which is the state of the law prior to Roe versus Wade.
00:11:19.000The big sort that has already been underway in the United States is going to continue.
00:11:29.000Because, let's be real about this, there is no widespread majority support on the federal level for a constitutional amendment to protect the lives of the unborn, nor does the left have the necessary support to pass a constitutional amendment to enshrine abortion into the Constitution as an actual piece of amended law.
00:11:47.000So this will likely remain a state-level issue for some time, which is, on a federalist level, where it should be.
00:11:53.000On a moral level, I would certainly prefer a constitutional amendment to protect human life.
00:11:57.000But on a political level, the idea that's going to happen at the federal level, I think, is vanishingly small.
00:12:02.000Which means, again, that if you like living in Texas, you get to live in Texas.
00:12:06.000And if you want to live in abortion land California, you certainly can live in abortion land California.
00:12:11.000And that will be the way that this goes.
00:12:13.000In just one second, I'm going to get to the actual draft decision by Justice Samuel Alito.
00:12:18.000It's really important, so we're going to go through it in detail first.
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00:13:39.000We're going to go through that, and then we'll get to the left-wing response to all of this.
00:13:42.000Which again, when it comes to the violation of law and legal norms, the left is perfectly willing to do all that so long as they can get what they want.
00:13:48.000That's why when the left complains about the violation of norms, just understand, they don't give two craps about norms.
00:13:53.000They don't care about norms whatsoever.
00:13:55.000For them, it is all about just getting what they want with any tool at their disposal.
00:13:59.000Okay, so here is what Justice Alito writes in this draft majority opinion quote, abortion presents a profound moral issue on which Americans hold sharply conflicting views.
00:14:07.000Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life.
00:14:12.000Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality.
00:14:19.000So others in a third group think abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
00:14:27.000For the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its citizens.
00:14:35.000Then, in 1973, this court decided in Roe v. Wade Even though the Constitution makes no mention of abortion, the court held that it confers a broad right to obtain one.
00:14:44.000It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant, e.g.
00:14:51.000its discussion of abortion in antiquity, to the plainly incorrect, e.g.
00:14:54.000its assertion that abortion was probably never a crime under the common law.
00:14:58.000After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature, writes Alito.
00:15:08.000Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve viability, i.e.
00:15:19.000the ability to survive outside the womb.
00:15:22.000Although the court acknowledged that states had a legitimate interest in protecting potential life, it found that this interest could not justify any restrictions on previability abortions.
00:15:31.000The court did not explain the basis for this line.
00:15:33.000Even abortion supporters have found it hard to defend Roe's reasoning.
00:15:36.000One prominent constitutional scholar wrote, he would vote for a statute very much like the one the court ended up drafting if he were a legislator, but his assessment of Roe was memorable and brutal.
00:15:45.000Roe was not constitutional law at all, and gave almost no sense of an obligation to try to be.
00:15:49.000The person who wrote that was John Hart Eli.
00:15:52.000At the time of Roe, 30 states still prohibited abortion at all stages.
00:15:55.000In the years prior to that decision, about a third of the states had liberalized their laws, but Roe abruptly ended that political process.
00:16:00.000It imposed the same highly restrictive regime on the entire nation and effectively struck down the abortion laws of every single state.
00:16:06.000As Justice Byron White aptly put it in his dissent, the decision represented the exercise of raw judicial power and it sparked a national controversy that has embittered our political culture for half a century.
00:16:16.000Eventually, writes Alito, in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the court revisited Roe, but the members of the court split three ways.
00:16:24.000Two justices expressed no desire to change Roe in any way, for others wanted to overrule the decision in its entirety.
00:16:29.000The three remaining justices who jointly signed the controlling opinion took a third position.
00:16:33.000Their opinion did not endorse Roe's reasoning.
00:16:35.000It even hinted that one or more of its authors might have reservations about whether the Constitution protects a right to abortion.
00:16:40.000But the opinion concluded that stare decisis, precedent, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe's central holding, that a state may not constitutionally protect fetal life before viability, even if that holding was wrong.
00:16:54.000Anything less, the opinion claimed, would undermine respect for the court and the rule of law.
00:16:58.000Paradoxically, the judgment in Casey did a fair amount of overruling.
00:17:01.000Several important abortion decisions were overruled in total.
00:17:05.000Casey threw out Roe's trimester scheme and substituted a new rule of uncertain origin under which states were forbidden to adopt any regulation that imposed an undue burden on a woman's right to have an abortion.
00:17:14.000The decision provided no clear guidance about the difference between a due and an undue burden, but the three justices who authored the controlling opinion called the contending sides of a national controversy to end their national division by treating the court's decision as the final settlement of the question of the constitutional right to abortion.
00:17:29.000As has become increasingly apparent in the intervening years, Casey did not achieve that goal, understatement of the year there from Justice Alito.
00:17:35.000Americans continue to hold passionate and widely divergent views on abortion.
00:17:38.000State legislatures have acted accordingly.
00:17:40.000Some have recently enacted laws allowing abortion, with few restrictions at all stages of pregnancy.
00:17:45.000Others have tightly restricted abortion beginning well before viability.
00:17:48.000In this case, 26 states have expressly asked the court to overrule Roe and Casey and allow the states to regulate or prohibit pre-viability abortion.
00:17:57.000The state of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy, several weeks before the point at which a fetus is now regarded as viable outside the womb.
00:18:07.000In defending this law, the state's primary argument is that we should reconsider and overrule Roe and Casey and once again allow each state to regulate abortion as its citizens wish.
00:18:15.000On the other side, respondents and the Solicitor General, that's the Biden administration or the Or the White House.
00:18:22.000Roe and Casey, they contend that the Mississippi law cannot stand if we do so.
00:18:26.000Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, would be no different than overruling Casey and Roe entirely.
00:18:33.000They contend that no half measures are available and that we must either reaffirm or overrule Roe and Casey.
00:18:37.000Right, this was the issue, by the way, right?
00:18:39.000In Mississippi case, basically both sides were arguing the same thing.
00:18:43.000From flip sides, the people who are arguing in favor of the Mississippi law said, yes, we understand that this law challenges Roe versus Wade and the viability structure of Roe versus Wade and Planned Parenthood versus Casey.
00:18:54.000And the left said, this law challenges Roe.
00:18:58.000You have to overrule it because it violates Roe.
00:19:00.000Nobody said you can still uphold Roe and uphold the law.
00:19:03.000And this meant that the court had to vote one way or the other, and apparently they are now going to vote in favor of overruling Roe, which of course is the correct decision.
00:19:09.000Alito says, we hold that Roe and Casey must be overruled.
00:19:12.000The Constitution makes no reference to abortion.
00:19:14.000No such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the Due Process Clause of the 14th Amendment.
00:19:23.000That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be deeply rooted in this nation's history and tradition, and implicit in the concept of ordered liberty.
00:19:34.000The right to abortion does not fall within this category.
00:19:38.000Until the latter part of the 20th century, such a right was entirely unknown in American law.
00:19:42.000Indeed, when the 14th Amendment was adopted, three-quarters of all states made abortion a crime at all stages of pregnancy.
00:19:48.000The abortion right is also critically different from any other right the court has held to fall within the 14th Amendment's protection of liberty.
00:19:54.000Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage.
00:20:01.000But abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decision calls fetal life and what the law now before us describes as an unborn human being.
00:20:11.000So in other words, all the attempts by the left to say that this is about private sexual decisions of people, or that this is about using birth control, it is not.
00:20:21.000It is just a question, in those particular cases, of whether there is a superseding right that gets rid of fetal life.
00:20:29.000And Alito says no, there is no such constitutional protection.
00:20:33.000Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority.
00:20:39.000Roe was egregiously wrong from the start.
00:20:42.000Very strong language here from Justice Alito and absolutely correct.
00:20:46.000The decision has had damaging consequences.
00:20:48.000Far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.
00:20:54.000It's time to heed the Constitution and return the issue of abortion to the people's elected representatives.
00:20:58.000The permissibility of abortion and the limitations upon it are to be resolved like most important questions in our democracy by citizens trying to persuade one another and then voting.
00:21:06.000That'd be Justice Scalia's concurrence in Casey.
00:21:09.000This is what the Constitution and the rule of law demand.
00:21:12.000Okay, so the opinion continues, and it gets pretty detailed.
00:21:16.000We're going to go through some of the important parts of the decision.
00:21:19.000Again, this is the draft decision, so this is not what has actually come down from the Supreme Court as of yet.
00:21:23.000It was leaked out by presumably an activist inside Justice Sotomayor's chambers or Elena Kagan's chambers or Justice Breyer's chambers until he officially steps down from the court.
00:21:33.000It is a massive breach of the law as well as of the Supreme Court norm that this stuff is supposed to remain behind closed doors until the actual decision comes out.
00:21:42.000So it's not to create safety threats for members of the Supreme Court or weighing in on some of those contentious issues in American life.
00:21:48.000But if this decision ends up being the basis for the full scale decision that's likely to come down in the next few weeks, it will be earth shattering in constitutional terms.
00:21:58.000It will totally change the nature of the playing field in politics in the United States in a very good way, by the way, because again, it is going to revamp how this stuff is done.
00:22:06.000It won't be done at the federal level anymore.
00:22:07.000It will go back to the state level, which is where it should be.
00:22:10.000If the country has a future at all, it's going to be in a federalist structure that returns these questions to the state level, which is what the Supreme Court is apparently about to do.
00:22:19.000More from the Aledo decision coming up.
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00:23:29.000We begin by considering the critical question of whether the Constitution properly understood confers a right to obtain an abortion.
00:23:35.000Skipping over that question, the controlling opinion in Casey reaffirmed Roe's central holding based solely on the doctrine of stare decisis, which means precedent.
00:23:41.000Stare decisis literally means the case has been decided.
00:23:44.000But as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.
00:23:50.000We therefore turn to the question that Casey's plurality did not consider.
00:23:54.000And we address that question in three steps.
00:23:55.000First, we explain the standard that our cases have used in determining whether a 14th Amendment reference to liberty protects a particular right.
00:24:02.000Second, we examine whether the right at issue in this case is rooted in our nation's history and tradition, and whether it is an essential component of what we have described as ordered liberty.
00:24:09.000Finally, we consider whether a right to obtain an abortion is supported by other precedents.
00:24:14.000So it begins with the language of the instrument, quote, Constitution analysis must begin with the language of the instrument, which offers a fixed standard for ascertaining what our founding document means.
00:24:24.000The Constitution makes it no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show the right is somehow implicit in the constitutional text.
00:24:32.000Roe, however, was remarkably loose in its treatment of the constitutional text.
00:24:37.000It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
00:24:42.000And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions.
00:24:48.000The First, Fourth, Fifth, Ninth, and Fourteenth Amendments, which was the Supreme Court's way of saying in Roe v. Wade that we have no basis for this, so we are just going to throw garbage against the wall and see what sticks.
00:24:59.000And as Alito points out, there's nothing in any of those amendments that suggests a right to an abortion.
00:25:02.000He says the underlying theory, on which the final argument that the left makes on this, that the 14th Amendment due process clause creates a liberty interest in abortion, The underlying theory on which this argument rests, that the 14th Amendment's Due Process Clause provides substantive as well as procedural protection for liberty, has long been controversial.
00:25:20.000The so-called Substantive Due Process Clause is a contradiction in terms.
00:25:23.000The 14th Amendment says that Congress cannot make any law abridging liberty without due process of law.
00:25:30.000Right, so due process of law was meant to mean you had to go through legislative channels.
00:25:35.000And they would go through a due process of law.
00:25:37.000Then the Supreme Court declared, ironically, in Dred Scott, the worst Supreme Court decision in American history outside of Roe, in which it said that the Constitution said that black people were not citizens of the United States and could not be citizens of the United States.
00:25:49.000That due process meant you could not pass a law granting black people their freedom in the United States and overruling the Fugitive Slave Law.
00:25:57.000That was what Dred Scott said because of substantive due process.
00:25:59.000Substantively, people will be deprived of their right to property if Congress passed a law through its normal mechanisms.
00:26:21.000But, says Alito, our decisions have held that the Due Process Clause protects two categories of substantive rights.
00:26:27.000The first consists of rights guaranteed by the First 8 Amendments.
00:26:29.000These amendments originally applied only to the federal government.
00:26:32.000This Court has held the Due Process Clause of the 14th Amendment incorporates the great majority of those rights and thus makes them equally applicable to the state.
00:26:38.000What you'll notice when you look at the Constitution is that the First Amendment, for example, says Congress shall make no law abridging freedom of speech.
00:26:44.000Now, as you can imagine, when it says Congress shall make no law abridging freedom of the speech, it does not apply to states or local governments.
00:26:52.000Congress is a specific term, meaning a specific body that makes law at the federal level.
00:26:57.000The Supreme Court spent a couple of hundred years, quote-unquote, incorporating First Amendment rights into state law.
00:27:04.000What they said is that the 14th Amendment, passed after the Civil War, meant to take federal rights and then jam them down on the states so that the federal government could step in and enforce them on the states.
00:27:15.000Which is not true, but the Supreme Court has been doing that for a long time, says Justice Alito.
00:27:22.000The second category, which is the one in question here, comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
00:27:28.000In deciding whether a right falls into either of these categories, the Court has long asked whether the right is, quote, deeply rooted in our history and tradition, and whether it is essential to our nation's scheme of ordered liberty.
00:27:38.000Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the liberty protected by the Due Process Clause because the term liberty alone provides little guidance.
00:27:49.000As Lincoln once said, quote, we all declare for liberty, but in using the same word, we do not all mean the same thing.
00:27:54.000In a well-known essay, Isaiah Berlin reported that historians of ideas had cataloged more than 200 different senses in which the terms had been used.
00:28:02.000And interpreting what is meant by the 14th Amendment's reference to liberty, we must guard against the natural human tendency to confuse what that amendment protects with our own ardent views about the liberty that Americans should enjoy.
00:28:12.000That is why the court has long been reluctant to recognize rights that are not mentioned in the Constitution.
00:28:15.000In other words, even if you're going to say that the 14th Amendment due process clause means that certain liberties guaranteed at the federal level must also be guaranteed at the state level, That generally is restricted to the liberties explicitly mentioned in the Constitution.
00:28:27.000If you're going to simply say, whatever liberty you please, is now in the Constitution, because you want it to be there, and then jam it down at the state level via the Due Process Clause, you're not supposed to do that.
00:28:38.000According to Justice Alito, quote, substantive due process has at times been a treacherous field for this court.
00:28:43.000That is a quote from a case called Moore v. East Cleveland, 1977.
00:28:45.000It has sometimes led the court to usurp authority, the Constitution trusts, to the people elected representatives.
00:28:52.000As the court cautioned in Glucksburg, quote, we must exercise the utmost care whenever we are asked to break new ground in this field.
00:28:57.000Lest the liberty protected by the due process clause be subtly transformed into the policy preferences of the members of this court.
00:29:03.000On occasion, when the Court has ignored the appropriate limits imposed by respect for the teachings of history, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.
00:29:14.000The Court must not fall prey to such an unprincipled approach.
00:29:16.000Instead, guided by the history and tradition that map the essential components of our nation's concept of ordered liberty, we must ask what the 14th Amendment meant by the term liberty.
00:29:24.000When we engage in that inquiry in the present case, the clear answer is the 14th Amendment does not protect the right to an abortion.
00:29:29.000So in other words, even if you're going to claim that liberties not mentioned in the Constitution are guaranteed by the 14th Amendment, there is no basis, historically speaking, for suggesting that such liberties encompass abortion.
00:29:39.000Says Alito, until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.
00:29:47.000No state constitutional provision had recognized such a right.
00:29:50.000Until a few years before Roe was handed down, no federal or state court had recognized such a right, nor had any scholarly treatise of which we are aware.
00:29:57.000And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published just a few years before Roe.
00:30:07.000That was an article in like the North Carolina Law Review in 1968.
00:30:12.000Not only was there no support for such a constitutional right until shortly before Roe, abortion had long been a crime in every single state.
00:30:18.000At common law, abortion was regarded as unlawful and could have had very serious consequences at all stages.
00:30:25.000American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.
00:30:30.000By the time of the adoption of the 14th Amendment, three-quarters of the state had made abortion a crime at any stage of pregnancy.
00:30:36.000The remaining states would soon follow.
00:30:38.000So if you're going to argue the 14th Amendment protects abortion, you're going to have to explain why every single state had laws criminalizing abortion at the time of the 14th Amendment.
00:30:45.000Roe either ignored or misstated this history.
00:30:47.000Casey declined to reconsider Roe's faulty historical analysis.
00:30:50.000It is important, therefore, to set the record straight.
00:30:52.000And then Alito goes into a very long disquisition on the history of abortion law in the United States.
00:30:57.000And he says, in sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice.
00:31:05.000Moreover, We are aware of no common law, case, or authority, and the parties have not pointed to any that remotely suggest a positive right to procure an abortion at any stage of pregnancy.
00:31:13.000In other words, the argument made by Roe, that there is a right to obtain an abortion, no one makes that argument.
00:31:18.000There were some states in which abortion was more legal than others, but nobody argued you had an actual right to abortion.
00:31:27.000And then, he continues, he gets into more of the history, he talks about the so-called quickening rule, which was the idea that you couldn't be punished before the quickening, and the quickening was the movement of baby inside the womb.
00:31:38.000That science has been obviated by actual science, right?
00:31:40.000We now know what the baby's doing inside the womb long before you feel the baby kick.
00:31:44.000As Alito notes, at any rate, the original ground for the quickening rule is of little importance for the present purposes because the rule was abandoned in the 19th century.
00:31:52.000During that period, treatise writers and commentators criticized the quickening distinction as neither in accordance with the result of medical experience nor with the principles of the common law.
00:32:00.000Instead, in 1803, for example, the British Parliament made abortion a crime at all stages of pregnancy.
00:32:05.000In this country, during the 19th century, the vast majority of the states enacted statutes criminalizing abortion at all stages of pregnancy.
00:32:12.000The overwhelming consensus endured until the day Roe was decided.
00:32:15.000At that time, also by the Roe court's own count, a substantial majority, 30 states, still prohibited abortion at all stages, except to save the life of the mother.
00:32:23.000And though Roe discerned a trend toward liberalization in about one-third of the states, those states still criminalized some abortions and regulated them more stringently than Roe would allow.
00:32:30.000In short, the court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.
00:32:37.000That is the dissent of Justice White in Thornburg.
00:32:42.000The inescapable conclusion, says Alito, is that a right to abortion is not deeply rooted in the nation's history or traditions.
00:32:47.000On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1793.
00:32:54.000The court in Roe could have said of abortion exactly what Glugsberg said of assisted suicide.
00:32:58.000Quote, attitudes towards abortion have changed since Bracton, but our laws have consistently condemned and continue to prohibit that practice.
00:33:04.000Respondents and their amici, being the people who file briefs in favor of abortion, have no persuasive answer to this historical evidence, says Alito.
00:33:13.000Not only are respondents in their amici unable to show that a constitutional right to abortion was established when the 14th Amendment was adopted, they have found no support for the existence of an abortion right that predates the latter part of the 20th century, no state constitutional provision, no statute, no judicial decision, no learned treatise.
00:33:29.000The earliest sources called to our attention are a few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.
00:33:38.000Coming up, we'll get to more of Justice Samuel Alito's draft majority decision.
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00:35:05.000We'll get to more on this groundbreaking day in just one second.
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00:36:55.000So Alito's opinion, we're going through the details of the draft opinion by Justice Samuel Alito, which may very well become the law of the land, which would again, remove this entire abortion issue from the purview of the Supreme Court and return it to the states, which is where it originally was.
00:37:16.000And he suggests, there's ample evidence that the passage of these laws was spurred by a sincere belief that abortion kills a human being.
00:37:24.000So the left has tried to argue that the reason abortion laws existed was to harm women or some such nonsense.
00:37:30.000He says, one may disagree with this belief, and our decision is not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests.
00:37:38.000But even Roe v. Casey did not question the good faith of abortion opponents.
00:37:42.000Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend the abortion right is an integral part of a broader entrenched right.
00:37:50.000Roe termed it a right to privacy, and Casey described it as the freedom to make, quote, intimate and personal choices that are contrary to personal dignity and autonomy.
00:37:57.000Casey elaborated, quote, this is one of the worst quotes in Supreme Court history, I hate this quote so much I cannot even express how dumb and stupid and ridiculous on every philosophical level this quote is, quote, K.C.
00:38:06.000said, quote, at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, of the mystery of human life.
00:38:13.000Which, I'm sorry, is just the stupidest pile of garbage I have ever heard in my entire life.
00:38:18.000The idea that constitutional liberty protects your right to manifest any interpretation of liberty you seek is idiotic in the extreme, which is what Alito is about to say.
00:38:25.000Quote, the court did not claim that this broadly framed right is absolute.
00:38:30.000While individuals are certainly free to think and to say what they wish about existence, meaning the universe, and the mystery of human life, they are not always free to act in accordance with those thoughts, licensed to act on the basis of such beliefs, and it corresponds to one of many understandings of liberty, but it is certainly not ordered liberty.
00:38:46.000I mean, like, imagine, for example, you define the meaning of mystery of human life by saying what Slaveholder said in 1850, Black people are not human life.
00:38:55.000The Constitution does not protect that sort of redefinition of human life, obviously.
00:39:01.000According to Alito, order and liberty sets limits and defines the boundary between competing interests.
00:39:05.000Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed potential life.
00:39:11.000But the people of the various states may evaluate those interests differently.
00:39:14.000In some states, voters may believe the abortion right should be even more extensive than the right that Roe and Casey recognize.
00:39:19.000Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an unborn human being.
00:39:24.000Our nation's historical understanding of order and liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.
00:39:31.000Again, this goes directly to the left's idiotic argument that it is anti-democratic for the court to say, we're not part of this anymore.
00:39:37.000He's literally saying New York can do abortion law and Mississippi can do abortion law and they don't have to vote the same way.
00:39:43.000And the left is losing their, they are losing their minds over it.
00:39:48.000Alito continues, nor does the right to an abortion have a sound basis in precedent.
00:39:53.000Attempts to justify abortion through appeals to a broader right to autonomy and to define one's concept of existence prove too much.
00:39:58.000These criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
00:40:05.000None of those rights has any claim to being deeply rooted in history.
00:40:07.000What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledge.
00:40:15.000Abortion destroys what those decisions call potential life and what the law at issue in this case regards as the life of an unborn human being.
00:40:21.000None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
00:40:27.000They do not support the right to obtain an abortion.
00:40:29.000By the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
00:40:33.000Okay, this is Alito going out of his way to say that because we are overruling Roe, that does not mean that we're going to overrule Obergefell.
00:40:40.000It does not mean that we're going to re-examine same-sex marriage.
00:40:43.000That is what Alito is saying right there.
00:40:45.000He is saying this case is different, Roe is different, because you may argue that there is a constitutional right to same-sex marriage on the basis of some unenumerated right to privacy.
00:40:56.000I think Obergefell is one of the worst decided Supreme Court cases in American history.
00:41:00.000It has, again, no basis in law or precedent, but Alito is explicitly distinguishing between cases like Obergefell.
00:41:07.000He's saying that we're not talking about that here.
00:41:09.000We are talking about a case in which even Rover and Casey suggest that there is a countervailing interest with regard to potential human life, as they put it in that case, or as better philosophers would put it, human life with potential.
00:41:22.000Alito continues, defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the underlying moral question. They do contend that changes in society require the recognition of a constitutional right to obtain an abortion.
00:41:33.000Without the availability of abortion they maintain, people will be inhibited from exercising their freedom to choose the types of relationship they desire. Women will be unable to compete with men in the workplace and in other endeavors. Americans who believe that abortion should be restricted press countervailing arguments about modern developments.
00:41:47.000They note that attitudes about the pregnancy of unmarried women have changed drastically, that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or governmental assistance, that states have increasingly adopted safe haven laws, which generally allow women to drop off babies anonymously, that a woman who puts her newborn up for adoption today has little reason to fear the baby will not find a suitable home,
00:42:10.000They also claim many people now have a new appreciation of fetal life, and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.
00:42:19.000Both sides make important policy arguments.
00:42:21.000But supporters of Roe and Casey must show this court has the authority to weigh those arguments and decide how abortion may be regulated in the states.
00:42:44.000Therefore, it goes back to the states.
00:42:48.000Then, Alito moves on to the question of stare decisis.
00:42:50.000Now, stare decisis, the question of precedent, basically when the left says that they like precedent, they mean they like precedent that upholds what they want.
00:42:58.000However, the Supreme Court case line that suggested Bowers vs. Hardwick, which suggested that there is no right to sodomy, that was bad precedent and needed to be overruled.
00:43:09.000So, in other words, the left constantly picks and chooses which precedent they think ought to apply.
00:43:13.000They love Roe because they love Roe, not because they think it's good precedent.
00:43:17.000And as Alito says, we have long recognized Stare Decisis is not an inexorable command.
00:43:22.000It is at its weakest when we interpret the Constitution.
00:43:25.000It has been said that it is sometimes more important that an issue be settled than that it be settled right.
00:43:29.000When it comes to the interpretation of the Constitution, the great charter of our liberties, which was meant to endure through a long lapse of ages, we place a high value on having the matter settled right.
00:43:37.000In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.
00:43:43.000An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend.
00:43:49.000Therefore, in appropriate circumstances, we must be willing to reconsider and, if necessary, overrule constitutional decisions.
00:43:55.000And he points out that Brown v. Board overruled Plessy v. Ferguson.
00:43:59.000And he pointed out that West Coast Hotel overruled Lochner v. New York.
00:44:04.000And he points out that there are a wide variety of constitutional decisions that overrule other bad constitutional decisions.
00:44:11.000As Alito says, no justice of this court has ever argued the court should never overrule a constitutional decision, but overruling a precedent is a serious matter.
00:44:18.000It is not a step that should be taken lightly.
00:44:20.000Our cases have attempted to provide a framework for deciding when a precedent should be overruled.
00:44:24.000They have identified factors that should be considered in making such a decision.
00:44:27.000In this case, five factors weigh strongly in favor of overruling Roe and Casey.
00:44:31.000The nature of the error, the quality of their reasoning, the workability of the rules they imposed, their disruptive effect on other areas of the law, and the absence of concrete reliance.
00:44:40.000And then Alito goes through each of these.
00:44:40.000He says, the nature of the court's error, an erroneous interpretation of the Constitution is always important.
00:44:47.000He says, Roe was all egregiously wrong and deeply damaging for reasons already explained.
00:44:52.000Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
00:45:10.000Roe found that the Constitution implicitly conferred a right to obtain an abortion.
00:45:14.000It failed to ground its decision in text, history, or precedent.
00:45:17.000It relied on erroneous historical narratives.
00:45:18.000It devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution.
00:45:23.000It disregarded the fundamental difference between the precedents on which it relied and the question before the court. It concocted an elaborate set of rules with different restrictions for each trimester. It didn't explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedents, or any other cited source.
00:45:38.000The Casey plurality, well, reaffirming it rose at central holding, refrained from endorsing its reasoning because the reasoning sucks, basically.
00:45:45.000Also, the weaknesses in the reasoning are well known, is not grounded in anything resembling law.
00:45:51.000Not only did the scheme resemble the work of a legislature, the court made little effort to explain how these rules could be deduced from any of the sources that it cited.
00:45:59.000So in other words, there's no rationale for upholding Roe, none.
00:46:02.000It says what Roe did not provide was any cogent justification for the lines that it drew.
00:46:09.000Okay, so Alito continues along these lines.
00:46:13.000He says that there is no basis for the viability distinction in Roe versus Wade.
00:46:18.000He says, here is the court's entire explanation.
00:46:20.000Quote, with respect to the state's important and legitimate interest in potential life, a compelling point is at viability.
00:46:25.000This is so because the fetus then presumably has the capability of meaningful life outside the womb.
00:46:30.000As Lawrence Tribe, who's a lefty, who likes Roe, has written, clearly this mistakes a definition for a syllogism.
00:46:37.000The definition of a viable fetus is one that is capable of surviving outside the womb.
00:46:41.000Why is this point the point at which the state's interest becomes compelling?
00:46:44.000If, as Rowe held, the state's interest in protecting prenatal life is compelling after viability, why isn't that interest equally compelling before viability?
00:46:51.000Rowe did not say, no explanation is apparent.
00:46:55.000This arbitrary line has found no support among philosophers and ethicists who have attempted to justify a right to abortion.
00:47:01.000Some have argued a fetus should not be entitled to legal protection until it acquires the characteristics they regard as defining what it means to be a person.
00:47:08.000Among the characteristics that have been offered as the essential attributes of personhood are sentience, self-awareness, and the ability to reason, or some combo thereof.
00:47:16.000By this logic, says Alito, there'd be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protections as persons.
00:47:26.000But even if one takes the view personhood begins when a certain attribute or a combination of attributes is acquired, it's very hard to see why viability marks the point at which personhood begins.
00:47:36.000It is telling that other countries almost uniformly eschew such a line.
00:47:39.000The court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the states less freedom to regulate abortion than the majority of Western democracies enjoy.
00:47:49.000By the way, this is an interesting point here and a good point from Alito.
00:47:52.000America's abortion law is far more liberal.
00:47:58.000All in all, says Alito, Roe's reasoning was exceedingly weak.
00:48:03.000Academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism.
00:48:09.000John Hart Eli famously wrote Roe was not constitutional law and gave almost no sense of an obligation to try to be.
00:48:14.000Archibald Cox, who served as Solicitor General under Kennedy, commented that Roe reads like a set of hospital rules and regulation, that neither historian, layman, nor lawyer will be persuaded are part of the Constitution.
00:48:24.000Lawrence Tribe wrote that even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, interest balancing of the form the court pursues fails to justify any of the lines actually drawn.
00:48:35.000Mark Tushnet, again another lefty, termed Roe a totally unreasoned judicial opinion.
00:48:41.000And then as Alito points out, when Casey revisited Roe almost 20 years later, very little of Roe's reasoning was even defended or preserved.
00:48:47.000The court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the 14th Amendment.
00:48:52.000The court did not reaffirm Roe's erroneous account of abortion history.
00:48:55.000None of the justices in the majority said anything about the history of the abortion right.
00:48:59.000As for precedent, the court relied essentially on the same body of cases Roe had cited.
00:49:03.000Thus, with respect to the standard grounds for constitutional decision-making, text, history, and precedent, Casey did not attempt to bolster Roe's reasoning.
00:49:11.000The court didn't even attempt to re-enshrine viability as the standard in Planned Parenthood v. Casey.
00:49:18.000Casey also deployed a novel version of the doctrine of stare decisis.
00:49:22.000This new doctrine did not account for the profound wrongness of the decision in Roe and placed great weight on an intangible form of reliance with little, if any, basis in prior case law.
00:49:29.000Stare decisis does not command the preservation of such a decision.
00:49:34.000And then Alito gets to the problem of workability.
00:49:36.000He points out that the standard in Planned Parenthood versus Casey is totally unworkable.
00:49:41.000So Planned Parenthood versus Casey created a standard suggesting that you cannot pass a law that creates an undue burden on a woman seeking an abortion.
00:49:49.000Undue burden is a fudge phrase meaning nothing.
00:49:52.000As Alito points out, problems begin with the very concept of an undue burden.
00:49:55.000As Justice Scalia noted in his Casey dissent, determining whether a burden is due or undue is inherently standardless.
00:50:02.000The KC Plurality tried to put meaning into the underburden test by setting out three subsidiary rules.
00:50:08.000The first rule is that a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
00:50:17.000But whether a particular obstacle qualifies as substantial is open to reasonable debate.
00:50:22.000In the sense relevant here, substantial means of ample or considerable amount, quantity, or size.
00:50:33.000And the second rule, which applies at all stages of pregnancy, muddies things further.
00:50:36.000It states that measures designed to ensure the woman's choice is informed are constitutional so long as they do not impose an undue burden on the right.
00:50:46.000The third rule complicates the picture even more.
00:50:48.000Under that rule, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
00:50:56.000This rule contains no fewer than three vague terms.
00:50:59.000Unnecessary health regulations, substantial obstacle, and undue burden.
00:51:03.000In addition to these problems, as Alito, one more applies to all three rules.
00:51:06.000They call on courts to examine a law's effect on women, but a regulation may have a very different impact on different women, for a variety of reasons, including their place of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions.
00:51:25.000You can say that it's an undue burden for a poor woman in Alabama not to be able to obtain an abortion.
00:51:30.000But is it an undue burden for a rich lady not to be able to do that?
00:51:32.000She can just get on a plane and go to New York.
00:51:34.000Casey provided no clear answer to these questions, says Alito.
00:51:37.000It said a regulation is unconstitutional if it imposes a substantial obstacle in a large fraction of cases in which it is relevant.
00:51:44.000But there's no clear line between a fraction that is large and one that is not.
00:51:47.000So basically they just created a mush rule.
00:51:51.000And then finally, the notion that this entire system of law was going to quiet the criticism, that this was going to create some sort of stability in the law is just not true.
00:52:02.000Casey's undue burden test has proved to be unworkable.
00:52:04.000Plucked from nowhere, it seems calculated to perpetuate a given trial litigation before judges assign an unwieldy and inappropriate task.
00:52:12.000Continued adherence to that standard would undermine, not advance, the even-handed, predictable, consistent development of legal principles.
00:52:19.000Alito then gets into other areas of the law.
00:52:22.000He says Ron Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.
00:52:31.000Because basically it's led to circuit courts disagreeing about dilation and extraction procedures, about an increase of time needed to reach a clinic, about abortions performed because of race, sex, or disability.
00:52:42.000The court's abortion cases have diluted the strict standard for facial constitutional challenges.
00:52:47.000They've ignored the court's third-party standing doctrine.
00:52:49.000They've disregarded standard res judicata principles.
00:52:51.000They've flouted the ordinary rules on the severability of unconstitutional provisions.
00:52:55.000They've distorted First Amendment doctrines.
00:52:57.000So in other words, all of this idiocy has created a mess in the law.
00:53:01.000And finally, Alito gets to the left's most, I think, powerful argument, which is that there are too many women who are relying on abortion law.
00:53:13.000He says, we last consider whether overruling Roe and Casey will upend substantial reliance interests.
00:53:18.000Traditional reliance interests arise when advanced planning of great precision is most obviously a necessity.
00:53:23.000In Casey, the controlling opinion conceded those traditional reliance interests were not implicated because getting an abortion is generally unplanned activity.
00:53:30.000Reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
00:53:34.000Normally, a reliance interest is you shake up a law, for example, a body of common law provisions with regard to contract.
00:53:42.000You shake that up, and in doing so, you have now completely shaken up people's business interests that have to be planned months and years in advance.
00:53:51.000Abortion is typically decided on, like, today.
00:53:53.000You decide you want an abortion, today.
00:53:56.000You decide that you want to get pregnant, today.
00:53:58.000So in other words, the minute that the law changes, you now change your calculation.
00:54:02.000No one is relying on this to make future decisions.
00:54:05.000Decisions are getting made, like, now.
00:54:08.000For these reasons, says Alito, we agree with the Casey plurality, conventional concrete reliance interests are not present here.
00:54:13.000Unable to find reliance in the conventional sense, a controlling opinion in Casey perceived a more intangible form of reliance, and wrote that people had organized intimate relationships and made choices that defined their views of themselves and their places in society in reliance on the availability of abortion, in the event contraception should fail, and that the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.
00:54:35.000But this court is ill-equipped to assess generalized assertions about the national psyche.
00:54:39.000Casey's notion of reliance finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in cases involving property and contract rights, as I suggested.
00:54:49.000The Casey court basically just said, well, you know, the law has impact on you and that means reliance.
00:54:55.000There is no law in American history that does not create the kind of reliance interest the Casey court talked about, which is why they were using bad law.
00:55:03.000The contending sides in this case make compassion and conflicting arguments about the effects of the abortion right on the lives of women.
00:55:08.000The contending sides also make conflicting arguments about the status of the fetus.
00:55:11.000This court has neither the authority nor the expertise to adjudicate those disputes.
00:55:15.000The Casey plurality's speculations and weighing of the relative importance of the fetus and mother represent a departure from the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.
00:55:28.000And as Alito points out, even in the so-called brutal, horrible, no good, very bad red states, a majority of voters were women in the last election cycle.
00:55:38.000So like in Mississippi, women who make up about 51% of the population of Mississippi were 55.5% of the voters who cast ballots.
00:55:46.000He says, nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
00:55:50.000He keeps saying that over and over and over, because what he is saying over and over and over is this has nothing to do with, for example, Obergefell.
00:55:58.000He says, having shown that traditional stare decisis factors do not weigh in favor of retaining Rowe or Casey, we have to address one final argument that featured prominently in the Casey plurality opinion.
00:56:07.000This argument was cast in different terms, but stated simply, it was essentially as follows.
00:56:11.000The American people's belief in the rule of law would be shaken if they lost respect for this court as an institution that decides important cases based on principle, not social and political pressures.
00:56:19.000There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision like Roe.
00:56:26.000A decision overruling Roe would be perceived as having been made under fire and as a surrender to political pressure.
00:56:31.000And therefore, the preservation of public approval of this court weighs heavily in favor of retaining Roe.
00:56:36.000This analysis, says Alito, starts out on the right foot but ultimately veers off course.
00:56:39.000The Casey plurality was certainly right, and it is important for the public to perceive that our decisions are based on principle.
00:56:44.000We should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.
00:56:51.000But we cannot exceed the scope of our authority under the Constitution.
00:56:54.000We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work.
00:57:00.000This is true when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.
00:57:06.000As Chief Justice Rehnquist explained, the judicial branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the Constitution.
00:57:17.000The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.
00:57:26.000In suggesting otherwise, a casey plurality went beyond the court's role in our constitutional system.
00:57:31.000The KC plurality called on the contending sides of a national controversy to end their national division and claim the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed.
00:57:42.000That unprecedented claim exceeded the power vested in us by the Constitution.
00:57:45.000As Alexander Hamilton famously put it, the Constitution gives the judiciary neither force Nor will.
00:57:52.000Our sole authority is to exercise judgment, which is to say, the authority to judge what the law means and how it should apply to the case at hand.
00:57:58.000The court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles.
00:58:06.000A precedent of this court is subject to the usual principles of stare decisis, under which adherence to precedence is the norm, but not in inexorable command.
00:58:13.000If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law.
00:58:17.000That is not how stare decisis operates.
00:58:20.000The Cayce plurality also misjudges the practical limits of this court's influence.
00:58:24.000Roe did not succeed in ending division on the national issue of abortion.
00:58:27.000On the contrary, Roe inflamed a national issue that has remained bitterly divided for the past half century.
00:58:33.000Neither decision has ended debate over the issue of a constitutional right to obtain an abortion.
00:58:37.000Indeed, 26 states expressly asked us to overrule Roe v. Casey and to return the issue of abortion to the people and their elected representatives.
00:58:43.000This court's inability to end debate on the issue should not have been surprising.
00:58:46.000This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.
00:58:52.000Whatever influence the court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise raw judicial power.
00:59:00.000We do not pretend to know how our political system or society will respond to today's decision.
00:59:05.000Even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.
00:59:08.000We can only do our job, which is to interpret the law, apply long-standing principles of stare decisis, and decide this case accordingly.
00:59:14.000We therefore hold the Constitution does not confer a right to abortion, Roe and Casey must be overruled, the authority to regulate abortion must be returned to the people, and their elected representatives.
00:59:24.000And then, Alito concludes, Under our precedence, rational basis review is the appropriate standard for such challenges.
00:59:31.000Rational basis review is the idea that unless a law is completely irrational, it can't be struck down.
00:59:38.000So before, the court had basically said abortion was a fundamental right, we can strike it down, any abortion law, for basically any reason.
00:59:44.000Now, the court would be saying, if this is the decision, the court would be saying rational basis review, in other words, you pass an abortion law, we are going to presumptively assume that it is rational, basically.
00:59:54.000That respect for a legislature's judgment applies even when the laws it issued concern matters of great social significance and moral substance.
01:00:00.000A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity.
01:00:06.000It must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests.
01:00:11.000These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.
01:00:28.000And so they uphold the Mississippi law in this opinion.
01:00:30.000And Alito finishes, quote, we end this opinion where we began.
01:00:33.000Abortion presents a profound moral question.
01:00:35.000The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.
01:00:39.000Roe and Casey irrigated that authority.
01:00:41.000We now overrule those decisions and return that authority to the people and their elected representatives.
01:00:46.000So this would be a groundshaking decision if this is how it comes down.
01:00:51.000It would be ground-shaking, but it would be good in the long run for the United States, particularly because, again, it would remove from the federal level a question that was at the state level.
01:01:00.000It would take it out of the hands of the Supreme Court.
01:01:01.000It would re-legitimize the Supreme Court, which has been a political body for decades, thanks to the left writing its own prescriptions into the Constitution without any reference, without any rationale.
01:01:11.000This would be very, very good for the country.
01:01:29.000Remember that time when January 6th was a coup?
01:01:31.000Remember that time when it was a threat to the rule of law?
01:01:39.000What do you think it is when the entire media circulate an unreleased judicial opinion in an attempt to create public threats against Supreme Court justices?
01:01:50.000The head of the Justice Democrats, Brian Fallon.
01:01:53.000Justice Democrats are the folks who basically forced Justice Breyer into retirement so he could replace Justice Breyer with a person who can't find the word woman.
01:02:02.000Brian Fallon tweeted, All Democrats need to show the same urgency as the clerk who apparently risked his or her career to sound this alarm.
01:02:09.000Those on the inside know best how broken the institution is.
01:03:04.000He says overturning Roe v. Wade would be absolutely wrong, not to mention catastrophic for Ohio, where Republicans have passed one extreme and dangerous proposal after another to ban abortion before most people even know they're pregnant.
01:03:15.000I mean, ladies, find you a man who loves you like Democrats love the murder of the unborn.
01:03:30.000By the way, contraception is widely available and cheap.
01:03:32.000But these people, they want abortion so bad.
01:03:36.000Lieutenant Governor Mantella Barnes, candidate for the Senate in Wisconsin.
01:03:41.000Also said, quote, it has never been more clear why we need to abolish the filibuster and take immediate action to protect every person's right to make decisions about their own bodies, except for the child in the womb who makes no decision, simply has their brains sucked into a sink.
01:04:10.000Dignity has nothing to do with it when you kill your pre-born child.
01:04:12.000That is not a di- If your dignity is preserved by the killing of your pre-born child, let me just suggest that that has nothing to do with dignity.
01:04:19.000Not to mention decades of settled law.
01:04:21.000Yeah, like, again, whenever Democrats claim that they are interested in settled law, just understand that Democrats would love to enshrine in the Constitution of the United States the concept that men can be women and women can be men.
01:04:30.000Democrats' favorite judicial decision of the last 20 years is a decision saying that the Constitution mandates that men can marry men.
01:04:37.000So, no, I don't think that you guys give two dams about settled law.
01:07:58.000According to the CDC, in 1972, the year before Roe, there were 24 deaths from legal abortions and 39 from illegal abortions.
01:08:05.000This idea that women are dying by the thousands because of back alley coat hanger abortions, it's just not true.
01:08:11.000Also, when you talk about reducing the rate of abortion, yes, it turns out that when you make things illegal and punishable, the rates of abortion in those states decline.
01:08:18.000So Jeffrey Toobin just happens to be scouting complete nonsense.
01:08:22.000Meanwhile, you got Joe Scarborough, who I was under the impression used to be a Republican congressperson on MSNBC, talking about how people are going to conclude that their votes and voices no longer matter if the Supreme Court allows them to vote.
01:08:34.000Again, this is the most pretzel-y logic I've ever seen from the left.
01:08:39.000I mean, honest to goodness, it's Fuddruckers pretzels over here.
01:08:42.000The notion that somehow democracy is undermined by allowing you to vote on the issue is insane.
01:08:49.000And yet here is Joe Scarborough doing this routine.
01:08:51.000What does this story mean for the Supreme Court?
01:08:54.000Well, I mean, for the Supreme Court, in a word, illegitimacy.
01:08:58.000You know, the Court's always been guided by the law, but it's also been keenly aware that as the only unelected branch of American government, they needed to not appear to be openly contemptuous of public opinion.
01:09:10.000That would be especially true today, given the GOP's might-makes-right approach to the sacking of Merrick Garland's nomination or the elevation of Donald Trump's final pick.
01:09:20.000And yet, a half century of constitutional rights supported by over 70% of Americans.
01:09:27.000Let me underline that again because people lying to you on other channels will never say this.
01:09:34.000Over 70% of Americans support that constitutional right.
01:09:37.000It'll be swept away by the presidents not in this picture, the presidents who were outvoted in each one of those elections over the last three decades.
01:09:45.000Now, Americans will rightly conclude That their voices and their votes no longer matter.
01:09:54.000Okay, this guy does not understand what the Supreme Court is supposed to do.
01:09:56.000It is not the job of the Supreme Court to take into account public opinion.
01:10:15.000And yeah, the evidence doesn't show that the person's guilty of murder, but we do have this baying mob outside, so we should probably just, you know, hang the guy.
01:10:22.000Courts are explicitly designed not to take account of public opinion.
01:10:25.000But according to Joe Scarborough, they're fundamentally illegitimate if they don't take account of public opinion.
01:10:30.000And also, the idea is somehow that because George W. Bush and Donald Trump appointed the majority on this court, that somehow the decision is illegitimate.
01:11:03.000She's back for 30 seconds to lament the possibility of a national abortion ban, which from her mouth to God's ears, but it ain't going to happen.
01:11:12.000This new reporting that Republicans in Washington have been debating and planning on proposing a nationwide abortion ban, you know, a six week abortion ban, which is effectively a complete ban on abortion in the United States.
01:11:29.000And if the ultimate ruling from the court is going to look anything like this, and we're going into a midterm season where the Republicans are poised to take the House and the Senate, Then President Biden is still President Biden and he would presumably veto such a measure.
01:11:49.000But if in the event that we had a Republican president in 2024, that's where we'd be.
01:11:54.000We'd be at a South America style nationwide abortion ban in America.
01:11:59.000Okay, she's out of her mind on a political level.
01:12:02.000I mean, I wish that that were true, but it just is not true.
01:12:05.000If you think that Republicans in charge of Congress and the Senate and the presidency in the absence of Roe are going to pass a nationwide abortion ban, and I'm as pro-life as anybody in America, on a political level it ain't happening.
01:12:16.000The best that would happen, the best that you could hope for, is that they would start pushing back national bans on abortion.
01:12:21.000Right now, the only federal laws that are in place are like partial birth abortion bans.
01:12:26.000You might see that gradually push back to 20 weeks, 16 weeks, maybe even 10 weeks.
01:12:31.000If you have a full-scale national federal ban on abortion, the country's just too divided for that.
01:12:36.000Okay, but that, when it comes to the states, that is where the issue is going to be solved.
01:12:42.000That is where the issue is going to happen.
01:12:44.000And what that's going to do on a political level, and this is a very good thing, it's going to lead to a continuation of the big sword.
01:12:49.000There are a lot of people who are worried about the polarization of American society.
01:12:51.000You know what polarizes American society?
01:12:53.000When every issue has to be solved top down.
01:12:55.000That's what polarizes American society.
01:12:57.000What polarizes American society on the federal national level is when I feel like my life here in Florida is being controlled by people in California.
01:13:03.000And when people in California feel like their life is being controlled by people in Florida.
01:13:07.000When I feel like there is a giant government gun that is pointed at me and my children by people who I don't live near and who don't care about my priorities and who disagree with me, that is a problem.
01:13:17.000The founders understood this, which is why they created a federalist structure whereby most law was done at the local and state level, not at the federal level.
01:13:24.000What the Supreme Court is doing is now returning the issue that is the most contentious issue in American life back to the state and local level for regulation, which is Where it should be, you know, barring on a constitutional legal level, on a moral level, I'm a believer that there should be a constitutional amendment to protect human life in the womb.
01:13:46.000But barring that, the system provides for the states and localities to make these decisions.
01:13:51.000And the fact that the Supreme Court is now abiding by its own role in interpreting the law rather than just imposing it top down, The fact that the left finds this shocking or upsetting is amazing to me.
01:14:01.000Again, they keep saying things like, well, the people aren't with it.
01:14:03.000Well, now we're going to get a chance to find out.
01:14:06.000Now we're going to get a chance to find out, but you don't want to find out.
01:14:22.000I'm reading Twitter and some of these people, so Ian Bremmer tweeted, I'm conflicted on abortion as someone raised Catholic, anti-death penalty, who doesn't think there's a definitive answer on when human life begins.
01:14:30.000By the way, there is a definitive answer on when human life begins.
01:14:58.000There are a series of decisions that women make throughout their lives about reproductive choice.
01:15:02.000When to have sex, when to get married, when to use contraception, when to get pregnant.
01:15:08.000The baseline idea, I mean, by the way, the left is giving away the game when they treat abortion this way.
01:15:12.000It used to be they treated abortion as sort of an evil that you had to tolerate because there were certain situations in which the baby was malformed, or in which somebody was raped, or it was an incest case, or these are difficult decisions.
01:15:24.000Now the left just admits it right out.
01:15:25.000It's a form of contraception for them, which demonstrates the evil.
01:15:29.000Because if you're using abortion as a form of contraception, you are, I mean, that is one of the highest forms of moral evil I can imagine.
01:15:35.000If you're using abortion as a way to make your life more convenient, this makes you a bad person.
01:15:42.000You're not doing it based on some extenuating circumstance, you're doing it just because it's convenient and you were too lazy to use contraception, or because the condom failed or something.
01:15:51.000That is a serious moral issue with you.
01:15:54.000The fact that you want that established by the Supreme Court is madness.
01:15:58.000And it demonstrates disdain for morality, for basic decency, and most of all for the constitutional structure.
01:16:03.000This was not what the Supreme Court was meant to do.
01:16:06.000And for all those who say that the Supreme Court's legitimacy has been undermined here, no.
01:16:10.000If the Supreme Court goes this way, the Supreme Court's legitimacy has been restored because their job is to look at the Constitution's text and its history and to interpret what the words mean.
01:16:19.000It is not to do your political priors.
01:16:21.000That's not what the Constitution is meant to do.
01:16:23.000And them going back to their role would be a welcome sight.
01:16:26.000You want a restoration of the institutions in America and institutional trust?
01:16:29.000Institutions are supposed to do what they're supposed to do.
01:16:32.000You're not supposed to have Departments of Health and Human Services that cram down puberty blockers on children.
01:16:36.000You're not supposed to have Departments of Homeland Security that open the borders.
01:16:39.000And you're not supposed to have a Supreme Court of the United States that acts as a super legislature on behalf of Hillary Clinton and Joe Biden to do all of their political priors.
01:16:54.000So, I'm honestly good for the courage of the people who are voting in favor.
01:16:58.000No good on John Roberts, who continues to be just a disgrace to his office, if he votes as we think he's going to vote in this case.
01:17:04.000And whoever leaked this decision should be prosecuted to the fullest extent of the law, because it is a fulsome attempt to undermine the rule of law by leveraging threats and imprecations against sitting Supreme Court justices.
01:17:16.000Alrighty, we'll be back here today with an additional hour of content coming up soon as The Matt Wall Show airs at 1.30 p.m.
01:17:24.000♪♪ The Ben Shapiro Show is produced by Bradford Carrington, executive producer Jeremy Boren, supervising producer Mathis Glover, production manager Pavel Lydowsky, associate producer Savannah Dominguez-Morris, editor Adam Sajevitz, audio mixer Mike Coromina, hair and makeup artist in wardrobe Fabiola Cristina, production coordinator Jessica Grant.
01:17:49.000The Ben Shapiro Show is a Daily Wire production.