The Michael Knowles Show - Choosing Life： A constitutional history of Abortion - Carter Snead

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00:00:31.380 The question, the dispute between pro-lifers

00:00:34.320 and people on the abortion rights side of the equation is,

00:00:37.520 does everyone who's a human being

00:00:39.180 deserve the basic protection of the law

00:00:41.040 or only some people?

00:00:42.900 That's, in a nutshell,

00:00:43.900 the difference between the pro-life position

00:00:45.160 and the pro-choice position.

00:00:46.720 The pro-choice position says,

00:00:48.600 and Planned Parenthood versus Casey and Roe v. Wade say,

00:00:51.620 that individuals, women, pregnant women, 0.97

00:00:54.360 can decide for themselves

00:00:55.660 what the moral standing of the unborn child is.

00:00:58.940 Is it a person?

00:00:59.580 Is it not a person?

00:01:00.440 If they choose it's a person,

00:01:01.580 then they can act like it's a person.

00:01:02.980 If they choose it's not a person,

00:01:04.160 then they can take legal violence against it

00:01:06.020 in a way that you wouldn't be permitted to

00:01:07.460 against a person.

00:01:08.760 The personhood of the unborn child

00:01:10.620 as a matter of constitutional law in this country,

00:01:13.640 as interpreted by the Supreme Court,

00:01:15.080 is that it is a relative value.

00:01:16.800 And they are ignoring the proposition

00:01:19.260 that all human beings are created equal,

00:01:22.020 which is a normative proposition

00:01:23.080 that I think includes every living member

00:01:25.840 of the human family born and unborn.

00:01:27.680 They're rejecting a deep normative good

00:01:30.600 of human equality

00:01:31.660 that I think is embedded

00:01:33.460 in our nation's best traditions.

00:01:35.020 One major problem for the pro-abortion movement

00:01:44.320 has always been why,

00:01:46.220 if the Constitution includes

00:01:47.800 a legal right to abortion,

00:01:49.960 no one seemed to notice that right

00:01:51.620 for the first 184 years

00:01:54.180 of our nation's history.

00:01:56.620 Carter Sneed,

00:01:57.860 professor of law at Notre Dame,

00:01:59.740 takes a look at Roe v. Wade

00:02:01.120 in the context of American history

00:02:03.520 and the Western legal tradition.

00:02:31.120 Right now, I would strongly recommend you go to hallow.com slash choose life

00:02:41.920 because today's world is a scary one.

00:02:45.020 Too many people don't seem to care about the truth.

00:02:47.440 And I would suggest that that's all rooted in people becoming less or really just anti-religious.

00:02:55.160 That's why it's more important than ever to keep our relationship with God strong.

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00:03:14.160 Several of Hallow's meditations encourage you to choose life

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00:03:28.500 Download the app for free at hallow.com slash choose life.

00:03:33.660 That is hallow.com slash choose life.

00:03:38.480 Here's Carter Sneed.

00:03:45.420 So I'm Carter Sneed.

00:03:46.980 I'm the director of the DeNicola Center for Ethics and Culture here at the University of Notre Dame,

00:03:50.980 where I'm also a professor of law and concurrent professor of political science.

00:03:55.260 Before joining the faculty at Notre Dame in 2005, I served as general counsel to President Bush's counsel on bioethics.

00:04:01.720 And I think, you know, just to jump right into it, we're centering around kind of four lies or four steps that the pro-abortion industry took kind of pre-Roe to make abortion more kind of widely accepted in the United States.

00:04:17.780 And I'd love to hear, you know, to what extent that played a role, if any, in, you know, both argumentation during, you know, the proceedings of Roe v. Wade, you know, when it was before the court and if it played any role in, you know, the court's decision or later legal decisions on the issue of abortion.

00:04:37.360 So which of the, which of the lies that you have in mind?

00:04:40.640 So first one, um, the pro-abortion movement promoted the idea that abortion is purely a medical issue instead of a moral issue.

00:04:49.400 And so I guess the first question is, you know, did that, you know, by the time Roe v. Wade was being argued in the court, um, had that worked its way into the legal arguments?

00:04:59.340 So Harry Blackman had a deep connection to the Mayo Clinic.

00:05:05.240 He was from the Minneapolis-St. Paul area.

00:05:08.740 Um, he was deeply attached to physicians and physicians' rights.

00:05:13.660 And in his conception and execution of the opinion in Roe v. Wade, that really comes through.

00:05:20.100 It comes through almost as a pro-doctor opinion more so than even a pro-woman opinion,

00:05:25.160 which has gotten the attention of a lot of feminists who are, who are rightfully concerned about the, the orientation of Justice Blackmun's reasoning.

00:05:33.960 Um, but the most important thing, it seems to me, about Roe v. Wade, the case is that every single factual representation that Justice Blackmun makes

00:05:44.140 about the sociological realities of abortion, about the safety of abortion, about the history of abortion,

00:05:51.820 both as it's practiced in Western culture, but also in terms of the way abortion was treated in American law from the founding

00:05:59.900 or even the common law before the founding up until 1973, none of that information was ever presented at the trial level,

00:06:07.780 which is where in the law, in the United States at least, we, we have, uh, we sort out the contested disagreements over facts.

00:06:14.860 In fact, there's a truth finding process of the trial in American law and American courts that's an adversarial nature.

00:06:22.140 You have two parties, uh, presenting their competing vision of the facts.

00:06:26.020 You have expert witnesses, you, you, uh, and you have a jury usually, or a judge sitting as a trier of fact

00:06:31.500 who resolves these factual disputes, uh, by a pretty, you know, compelling standard of, of evidence

00:06:37.440 so that when you get up to the Supreme Court or even the lower appellate courts,

00:06:41.760 you can have confidence in the truth of the factual assertions that are part of the record.

00:06:47.040 There was no factual record in Roe v. Wade for unusual procedural reasons.

00:06:51.000 It came up through, uh, through the trial courts and it was resolved by the trial courts in Texas

00:06:55.960 strictly as a matter of law.

00:06:58.080 They said, well, we think that Texas's laws restricting abortion, uh, implicate the Ninth Amendment.

00:07:04.220 Uh, the Ninth Amendment's, um, guarantee or reservation to the people, uh, of rights that

00:07:10.760 are not here enumerated or not to, you know, I'm not, I'm, the exact language of the Ninth

00:07:15.880 Amendment is, is somewhat mysterious and had been thought of as a pretty inert part of the

00:07:20.880 Constitution until the 1965 in a case called Griswold v. Connecticut involving contraception.

00:07:25.500 In a concurring opinion by Justice Goldberg, he cited the Ninth Amendment as a possible source

00:07:31.220 of authority in the Constitution for a right to privacy that included the right of married

00:07:34.920 couples to use contraception.

00:07:36.900 So the trial court in Texas simply said, we don't need to find any facts here.

00:07:41.000 We don't need to resolve any questions about history or science or sociology or medicine

00:07:44.320 or anything like that.

00:07:45.440 We're just going to, we're just going to look at the law and say, well, it violates the

00:07:48.460 right to abortion, which is part of the right to privacy.

00:07:50.640 And that was a real innovation in the law.

00:07:52.340 No one had ever really seriously made that case before.

00:07:55.580 And so it comes to the Supreme Court directly from the, from the trial court without any factual

00:07:59.900 record.

00:08:00.680 So Justice Blackmun goes on and on in the opinion about the safety of abortion versus childbirth,

00:08:05.520 about the history of abortion, about the history of the law of abortion, none of which was tested

00:08:09.940 for accuracy or, or, or validity in the trial court below.

00:08:13.740 It's all just his own rank speculation based on his research, which by the way involved re relying

00:08:19.920 on a handful of larvae articles written by the former general counsel of NARAL, uh, in spinning

00:08:26.060 out a completely tendent, tendentious and false account of the history of the way abortion had

00:08:30.700 been treated in the law, falsely stating that there was a generalized liberty, interest in abortion

00:08:35.120 prior to the middle of the 19th century in the United States.

00:08:37.800 It's utterly false.

00:08:38.760 We have indictments for abortion stretching back for the, to the founding era, before the

00:08:44.500 founding era.

00:08:45.300 It was always a common law crime, uh, and abortion restrictions were codified in the middle

00:08:50.640 of the 19th century in statutes. But Justice Blackmun completely took hook, line, and sinker

00:08:56.060 this, this entirely made up and falsified history of abortion and, and relied on that to find the

00:09:02.560 proposition that, uh, there was that, that, that, that a right to abortion was in some ways consistent

00:09:07.220 with the history and tradition of the American constitutional system, which is false.

00:09:12.380 And so, you know, just for the audience, can you give us a sentence on, you know, who was

00:09:16.620 Justice Blackmun?

00:09:18.100 Justice Blackmun was, uh, was a justice appointed to the, to the, uh, Supreme Court of the United

00:09:23.020 States. He, um, he, uh, was on the U.S. Court of Appeals for the Eighth Circuit, which is, which

00:09:29.100 is part of, uh, which is included the geographic region of Minnesota, where he was from. He wasn't

00:09:33.880 especially distinguished, uh, I don't think as a jurist. And, um, and looking at his papers

00:09:40.940 now, actually, the archives from his time on the court have been, uh, have been opened. And the

00:09:46.940 story of Justice Blackmun as a justice is, is, I don't think a very positive story. It's a story

00:09:52.120 of someone who was very insecure, who relied heavily on the work of his clerks, which are

00:09:56.880 recent law school graduates, uh, in some cases quite ideological in their orientation. And, um,

00:10:03.200 and the, and the, and the papers that we see from around the time of Roe v. Wade show that Blackmun

00:10:08.140 was really grasping around for some kind of a theory about how to justify, uh, a right

00:10:14.960 to abortion. Even though, of course, it said, there's nothing like that mentioned in the

00:10:18.520 constitution, not even concepts that are related to abortion in the constitution, given the

00:10:22.740 fact that it is not merely a medical procedure, uh, which by the way, medical procedures are,

00:10:27.660 are routinely regulated by the states. It's entirely the purview of state law to regulate the practice

00:10:33.160 of medicine under the, what's called the police power of the state to regulate for the health,

00:10:36.580 welfare, and morals of the people inside of that state. The federal government doesn't regulate

00:10:40.960 the practice of medicine, uh, virtually at all. So it's a very strange thing to constitutionalize

00:10:46.500 the regulation of medicine, to claim that somehow a right to privacy is implicit in the due process

00:10:53.040 clause of the 14th amendment that entitles, uh, essentially no regulation of abortion at all

00:10:58.360 in the first trimester, only very minor regulation of abortion in the second trimester that Roe v. 0.80

00:11:03.640 Wade says in the second trimester of pregnancy, the only state interest that supports regulation

00:11:08.080 is the state trying to make abortion safer for women. And then third, in the third trimester

00:11:13.700 of pregnancy, the, the justice Blackman said in Roe, um, that, um, that, uh, the state can regulate

00:11:20.580 or restrict abortion, but it must always make an exception for the life of the mother, which

00:11:24.420 of course the Texas law already did, or the health of the mother, which it didn't really define,

00:11:28.760 but the reasoning of Roe points to very broad conception of health, including not just physical,

00:11:33.680 not just even emotional health, but also financial health and familial health. And then in the

00:11:38.460 companion case decided on the same day as Roe v. Wade called Doe v. Bolton, uh, the court

00:11:43.060 is even more explicit. Justice Blackman says, uh, in making medical judgments about health,

00:11:48.560 practitioners take into account not merely physical or, uh, emotional health, but also any

00:11:54.500 aspect of a woman's wellbeing, which is essentially an exception so broad that it swallows the rule.

00:11:59.600 And if that weren't bad enough, the case also reposes the authority and the abortionist 0.96

00:12:04.040 to decide whether or not such a health interest is implicated. So, uh, the, the, the Fox is guarding

00:12:09.400 the hen house, uh, in Doe v. Bolton and Roe v. Wade such that, uh, when you put those two cases

00:12:15.080 together, you end up with a right to abortion that's more extreme than any right to abortion almost

00:12:19.460 anywhere in the world with the exception of a handful of other countries that allows essentially

00:12:22.620 abortion on demand up to the moment of birth. Uh, and the Washington post, uh, did an interesting

00:12:27.660 fact check a few years ago and confirmed that that in fact is true. That is, that is the effect of,

00:12:32.120 of, of, of Roe and, uh, and, uh, and, uh, why was justice Blackman delivering the decision for the

00:12:38.720 court? Uh, the, the chief justice of the Supreme court assigns the opinion, uh, to be written to,

00:12:46.660 uh, a justice who is in the majority. And so, uh, chief justice Berger, um,

00:12:52.620 assigned the opinion to justice Blackman in that case. And that's why he had the authority to write

00:12:57.240 the opinion in Roe v. Wade, which is a seven to two decision to dissenting justices were chief,

00:13:02.420 uh, justice Rehnquist later chief justice Rehnquist and, uh, justice white who was appointed by a John

00:13:07.640 F. Kennedy. So Democrat appointee. And you mentioned NARAL, uh, and justice Blackman in, in the, uh,

00:13:15.420 opinion quoted NARAL a lot. In fact, quoted, quoted the, uh, the author, he quoted several

00:13:22.180 law review articles, law review articles written by a man named Cyril Means, who was counsel for

00:13:27.280 NARAL. Although he didn't, as I understand it, identify himself as counsel for NARAL in the

00:13:31.580 articles themselves. These articles were entirely fanciful histories of American law concerning

00:13:37.040 abortion, um, that completely inverted and disregarded volumes and volumes of scholarship

00:13:44.500 by people who'd actually focused on these questions. And it was a piece of advocacy.

00:13:48.340 It was a piece of advocacy written by literally an advocate for abortion of the most, one of the

00:13:53.960 most important abortion advocacy organizations in the country. And justice Blackman relied on them

00:13:59.160 as if they were scholarly publications by a disinterested professor.

00:14:02.380 Right. And I think NARAL is interesting specifically because NARAL was one of the

00:14:07.820 founders of NARAL was Bernard Nathanson who plays, you know, a significant role in the history of

00:14:14.000 abortion. Can you talk about, uh, that tie between, you know, a lot of the materials used by the court

00:14:20.000 kind of the facts and then Nathanson and who he was? So it's a great, a great question. And there's

00:14:25.360 an interesting connection, especially along the theme of dishonesty. So Cyril Means' so-called history

00:14:31.500 of American law regarding abortion is completely made up. It's fanciful. It's false, probably

00:14:37.180 knowingly false, um, and relied on by Justice Blackman and as if it were true. And that creates

00:14:43.180 devastating effects for American jurisprudence and, and the, and the law and everything else that

00:14:48.480 abortion has touched and corrupted since then. Um, but, uh, the author of the, the articles that

00:14:53.960 Justice Blackman was relying on was a man named Cyril Means who was affiliated with, with NARAL,

00:14:58.160 the National Abortion Rights Action League, later called NARAL just, and in fact, I think it had a

00:15:02.440 previous name as well, which is different from NARAL and the National, but it was the same, always the

00:15:06.580 same letters, but different, different, um, different, uh, meaning assigned to the letters.

00:15:12.180 Anyway, the founder, one of the co-founders of NARAL is a man named Bernard Nathanson, who was a

00:15:16.360 OBGYN who performed tens of thousands of abortions, but then had a change of heart, had a kind of

00:15:21.380 conversion experience and realized that he had to spend the rest of his life making up for the fact that he

00:15:26.860 had taken so many lives and contributed to abortion as a policy matter. And one of the things Bernard

00:15:31.800 Nathanson said in his memoir, um, was, was that the, the, the organizers of NARAL understood they

00:15:39.060 needed some powerful narratives to try to change people's minds. And so they simply started making

00:15:45.220 things up. And one of the things that, that they made up, uh, was the proposition that there were tens

00:15:51.320 of thousands of women who would die every year from so-called back alley abortions, illegally performed 1.00

00:15:55.560 abortions in those jurisdictions where abortion wasn't available. Bernard Nathanson said that is

00:16:00.040 simply made up. It's simply a made up number. They sat around a table and just from whole cloth made up

00:16:05.540 that information, which of course has become a central talking point in the abortion rights

00:16:09.960 discourse community. Namely that if we ban abortion, abortion will be driven underground and women will 0.99

00:16:15.160 die. Uh, you may recall Susan Collins during, I think it was during the Kavanaugh hearings. And this is

00:16:21.080 true, probably was true during, uh, Justice Gorsuch and Justice Barrett's hearings as well. Uh, you

00:16:26.640 know, thousands of coat hangers sent to congressional offices, Senator offices, uh, including Senator

00:16:32.420 Collins to try to convince them that they have to vote against these justice, these, these nominees to

00:16:38.340 be justices because Roe v. Wade hangs in the balance and women's lives hang in the balance. But Bernard 1.00

00:16:43.120 Nathanson said, that's simply a lie just in the same way that serial means of history was a lie. And, uh,

00:16:49.760 and, and one can say, I think, uh, fairly that the, the sort of abortion rights advocacy, the abortion

00:16:55.380 rights movement, the law of abortion is built on a, on a house of lies. And, you know, that brings us

00:17:01.700 to, you know, you perfectly covered, you know, that second lie, which is that thousands of women a year 1.00

00:17:05.420 would die from abortion. That's, you know, the second point that we kind of are organizing the film

00:17:09.440 under, uh, you know, the third is, uh, depicting the pro-life movement as a group of religious

00:17:14.340 zealots who just want to force their religious beliefs on, you know, an unwilling 0.93

00:17:19.340 country. Uh, can you, can you talk about, you know, did that work its way into the court? 0.81

00:17:23.820 Yeah, absolutely. So I, I would say, well, so there are certainly justices on the court,

00:17:28.640 later justices, Justice Stevens, for example, John Paul Stevens. And there's some other commentators

00:17:33.600 who take this position, that the pro-life position is a religious position and therefore cannot

00:17:39.100 consistent with principles of separation of church and state be a basis for legislation or any

00:17:43.700 kind of state action. Now it may sound like a good talking point, but a moment's reflection realizes

00:17:49.500 how, how bankrupt that idea is because the pro-life position rests on the same proposition

00:17:56.620 that homicide laws rest on. In fact, prior to Roe v. Wade, unborn children were protected by homicide

00:18:02.400 laws. In fact, to this moment, unborn children are protected by many homicide laws with exceptions

00:18:07.240 carved out for abortions. You can, you can be sent to prison for life for killing, uh, an unborn child 0.57

00:18:13.340 against a mother's wishes in many jurisdictions in this country and unborn victims of violence act

00:18:18.040 statutes, for example. Um, and so, um, what I would say then is that, uh, is that the, it's a basic

00:18:26.760 principle of law that any libertarian would even embrace that the role of law and government is to

00:18:31.580 protect individuals from private violence. So it assumes, um, it assumes what it sets out

00:18:37.200 to prove to say that the pro-life position is no more religiously based than homicide laws are

00:18:43.220 religiously based because they're connected to the fifth commandment that thou shalt not kill.

00:18:47.080 It is, it is just because a law, uh, the goods that a law aims at correspond to goods that are

00:18:54.560 embraced by religious people or religious traditions doesn't make the law invalid. Otherwise, all of our

00:18:59.600 laws would be invalid. Anti-poverty laws would be invalid since we, they seek to care for the poor.

00:19:03.820 Laws against theft, uh, would be invalid. Um, there's, it's simply a category mistake to suggest

00:19:10.880 that a law aimed at a good that also is shared by religious. Now it is true that a lot of, a lot of

00:19:15.840 religious people, uh, are pro-life, but it's certainly not limited to religious people. Anyone

00:19:20.880 who cares about protecting the weak from the strong, especially from lethal private violence,

00:19:25.820 uh, can be pro-life. And we see that even now in the, in the modern, uh, pro-life movement,

00:19:31.620 we have a, a great diversity of points of view. We have atheists for life. We have libertarians for

00:19:36.080 life. We have, of course, we have religious people for life. We have, uh, and, and, and on and on and

00:19:40.700 on. It seems to me that it's a very diverse movement at the core of which is the proposition

00:19:45.380 that everybody counts, that everybody is entitled to the basic protection of the law and moral concern.

00:19:50.580 And, uh, and yes, that's, that's a position that corresponds to many religious traditions,

00:19:56.340 but it's certainly, it's not limited to that. And, um, and I would say further that, um, there's

00:20:03.420 been an effort to paint pro-lifers, not merely as religious zealots, but most recently the,

00:20:08.360 the rhetorical move, which is also false and, and, and dishonest is that somehow it's connected

00:20:13.660 to white supremacy, that pro-lifers became, and there's a very strange history of evangelicals

00:20:19.360 in public life that, uh, involve appeals to segregation, which weren't working. And so

00:20:25.260 somebody else said, maybe if we appeal to abortion, we can motivate these evangelical voters. Well,

00:20:29.640 the truth of the matter is that evangelical Christians, uh, originally in the 1970s,

00:20:34.000 Protestants were not, were not supportive of the pro-life position. In fact, there were a lot of

00:20:39.400 very prominent Protestants who were pro-choice. It was really the Catholic church traditionally that

00:20:43.640 has held, that carried the banner, the pro-life banner. Since then, evangelical Christians have

00:20:47.580 become very strong supporters of the pro-life movement, um, and, uh, important allies in that

00:20:53.700 effort among the coalitions that fight for, for life. But, um, but there's a historian named Daniel

00:21:00.000 Williams who wrote a very important book several years ago, tracing the right to life movement into

00:21:06.100 the, the more conventional civil rights movements, rights for workers, rights for, uh, uh, minorities that

00:21:12.880 experience discrimination, rights for women, uh, and, and, and so on. So it is, it is a, it is a movement

00:21:18.620 that has its roots in, in social action and on behalf of the weak and the voiceless. And he

00:21:25.480 demonstrates that with respect to, uh, voluminous historical record. It's a very useful book and it's

00:21:31.340 important to put the lie to the false and scurrilous slander that pro-lifers have something to do with

00:21:35.220 white supremacy. Now I'll tell you somebody who did have something to do with white supremacy.

00:21:39.080 And that was Margaret Sanger, the founder of Planned Parenthood. Now I'm, I'm not going to say that

00:21:44.800 she's a racist. I don't know if she's a racist or not, but I will tell you the historical record 0.56

00:21:47.880 shows that she addressed in the late 1920s, the women's auxiliary of the Ku Klux Klan in Silver Lake,

00:21:54.040 New Jersey. Now she may say, or her supporters may say she's not a racist, but she at least thought

00:21:59.300 that her message would be welcomed by a profoundly white supremacist organization. Uh, so I, I'll just

00:22:05.200 leave that there. I mean, that's, that's a kind, and moreover the kind of eugenics that she was an 0.93

00:22:09.180 open proponent of obviously have racial overtones and others who were more deeply connected to the

00:22:14.020 pro-choice movement were openly racist and their eugenic embrace of trying to eliminate, um, not

00:22:20.240 just the poor and the disabled, but also certain minority groups. And, you know, finally, I'm curious

00:22:26.620 to hear how, uh, arguments about, you know, abortions impact on welfare and, uh, you know, the wellbeing of,

00:22:34.340 you know, mothers, you know, how that played into arguments in the court and decisions of the court.

00:22:38.880 So, so the fundamental source of the right to abortion as articulated by Justice Blackmun really

00:22:44.720 came and arose from his normative balancing of what he took to be the burdens of an unwanted or

00:22:50.200 unplanned pregnancy on a woman versus the interest on the other side of the ledger, namely the state's

00:22:55.460 interest in protecting nascent human life in the womb. Now, very early on, he says, I'm not going to

00:23:02.140 take a position on the moral status of the unborn child, but then he zeros out the moral status of

00:23:08.440 the unborn child by saying that the interests of the unborn are not weighty enough to overcome the

00:23:14.280 interest of a woman whose, whose life and liberty and future and happiness is threatened by this

00:23:22.060 unplanned pregnancy. It's not just the woman's life, liberty, future, and happiness, but also the

00:23:26.080 entire community and family in which the unborn child emerges. And so he says, it's that balancing

00:23:31.900 of interests and priorities that leads him to say, well, given the overwhelming interests of a woman in

00:23:38.880 that context, we, we have to read into the 14th amendment, a right to abortion. It's essential that

00:23:44.700 that be there. It has to be there for our nation to be just. We have, women have to have recourse to 1.00

00:23:49.920 abortion to avoid the, the, the burdens and harms that come with an unplanned pregnancy or an unwanted

00:23:55.380 pregnancy, unwanted, and, but not just an unwanted pregnancy, I should say, but unwanted parenthood. 0.85

00:24:00.160 The burdens that he talks about are not merely the physical burdens or psychic burdens of pregnancy,

00:24:04.120 but the burdens of raising a child that you don't want or, or you can't care for. And one can

00:24:10.540 immediately see that, well, abortion, um, is not the only way of avoiding having the problem of raising

00:24:16.740 a child that you don't want or don't care for. There are many non-lethal alternatives, including

00:24:20.700 obviously adoption, uh, or strengthening the social net safety net to help women care for their own 1.00

00:24:25.320 children. Um, but the assumptions of Justice Blackmun, again, based on his own rank speculation,

00:24:31.160 uh, without any trial record to rely upon, social science evidence to rely upon, was that the burden on

00:24:37.220 women is so great that there must be a right to abortion that is grounded in privacy. And then in 1992,

00:24:42.860 in an opinion called Planned Parenthood versus Casey, uh, Justice Kennedy writing for a three

00:24:48.300 judge plurality, uh, uh, set doubles down on that proposition shifts from the concept of privacy to

00:24:53.980 the concept of liberty shifts from the trimester framework, which by the way, no one argued for

00:24:58.540 it. And in the row case, Justice Blackmun invented that too, um, uh, to a binary pre versus post

00:25:05.300 viability framework prior to viability, the state can't unduly burden a woman's right to abortion

00:25:09.620 after viability, it can restrict abortion. So long as it has the open-ended health exception

00:25:14.420 that we talked about a moment ago, which swallows the rule. It's so broad as to swallow the rule,

00:25:17.980 but in justice Kennedy's opinion, or at least the, what's attributed to justice Kennedy,

00:25:22.280 it's signed by three justices in a plurality decision. He spends a lot of time talking about

00:25:27.380 women, um, and their freedom to participate in an, in an equal way in the economic and social life 0.98

00:25:33.780 of the nation being threatened by an unplanned pregnancy, such that in order to be equal to men, 0.78

00:25:39.280 in order to live their dreams in the way that men can, they have to have recourse to abortion. 0.99

00:25:44.700 The state cannot impose its own vision of when life begins. Now, of course, the state always

00:25:51.520 imposes its own vision on who counts as a person outside of the abortion context. People are not 0.96

00:25:56.440 able to define for themselves who among their neighbors is a human being and who is not that

00:26:01.080 they can, whose lives they can take with impunity when it advances their interests. That's,

00:26:04.180 that's just, that's crazy talk, right? But in this context, we assume that the unborn child

00:26:10.120 has no such moral standing. And so they implicitly declared the unborn child to be sub-personal.

00:26:17.540 And of course, there's no constitutional warrant for that. There's nothing in the constitution that

00:26:20.640 says that unborn child is not a person. There's nothing that said that the state can't recognize

00:26:24.780 the personhood of the unborn child. That's just all, it's all made up. And so, so the fiction here

00:26:31.180 also, and this is something that pro-life feminists do a very good job of articulating. Erika Bakayaki 1.00

00:26:37.500 and Abby Johnson and Lila Rose and Alexander DeSantis, they all talk about how women's freedom and

00:26:44.900 flourishing do not depend on the right to abortion. And an abject falsehood is that it was the right to

00:26:51.500 abortion causally that gave women this freedom and capacity to participate equally in the country's

00:26:57.320 flourishing. When in fact, women's success was on the upswing prior to Roe v. Wade, pursuant to 0.99

00:27:03.800 cultural changes and legal changes that had nothing to do with abortion. And in the United States

00:27:08.820 recently, we've seen the abortion rate declining as women's success climbing, which, which would show

00:27:14.220 that again, there's no relationship between abortion and women's and women's success. They call this

00:27:19.840 the reliance interest argument in Planned Parenthood versus Casey, which relates to questions of stare

00:27:24.320 decisis. Can you overturn Roe v. Wade? Or have women's reliance built up over time on access to 1.00

00:27:30.160 abortion that if you were to take it away, then you would hamstring them. But you look at countries

00:27:33.940 like Chile or Ireland prior to the repeal of their eighth amendment, which, which was a pro-life

00:27:39.920 amendment of their constitution. Women were fine in those countries. Women weren't enslaved in those 0.96

00:27:43.940 countries in the same way that women weren't enslaved prior to 1973 in the United States by virtue of pro-life 0.73

00:27:49.480 laws. If you were to encapsulate, you know, the impact that Bernard Nathanson and NARAL had on

00:27:57.940 Roe v. Wade, you know, several years later, how would you encapsulate that in a sentence?

00:28:04.300 NARAL had an extraordinary influence on Justice Blackmun's thinking about the way abortion was

00:28:10.720 treated in American law. And it's also true that the claims, again, not presented at trial,

00:28:17.040 that abortion is safer than childbirth, which is another claim that you hear all the time. And of

00:28:23.360 course, NARAL trumpeted that, was enormously influential on Justice Blackmun because his own

00:28:31.040 scientific medical judgment, again, just, he was just riffing, right? He's not a medicine. He's not

00:28:36.700 a scientist or a doctor. He was just riffing. He said, well, it seems to me that abortion is safer

00:28:41.160 than childbirth at least until viability or until the second trimester. So the state's interest in

00:28:47.180 restricting abortion for women's safety purposes is at zero in the first trimester. So there can be

00:28:52.300 no restrictions in the first trimester. In the second trimester of pregnancy, then when abortion

00:28:58.300 becomes more risky, then the state can regulate in the interest of protecting women, but still not in

00:29:04.740 the interest of the unborn child until the third trimester. I mean, what I would invite viewers to

00:29:10.520 think about is this. The role of a justice is to interpret the Constitution. The clause of the

00:29:16.280 Constitution that Justice Blackmun purported to interpret, in his opinion, Roe v. Wade, was the

00:29:20.900 phrase, no person shall be deprived of life, liberty, or property without due process of law. Enacted in 1868,

00:29:27.740 ratified in 1868 at a time when abortion was criminalized virtually everywhere in the United States.

00:29:33.800 The states that ratified the 14th Amendment did not believe, had no inkling that about 100 years

00:29:41.520 later, someone would say that prevents the states from restricting abortion and protecting unborn

00:29:47.700 children. The state of Ohio, shortly after ratification, tightened its criminal restrictions

00:29:53.380 on abortion to apply from the moment of conception on the ground, in the words of the drafters of the

00:29:58.480 law, that abortion is child murder. Nobody who voted for the 14th Amendment, nobody who had heard

00:30:06.760 of the 14th Amendment in 1868 believed that it had anything to do with abortion, much less prevented

00:30:12.140 the states from protecting unborn children, which almost every state did in that context. It wasn't

00:30:17.380 until 100 years later that Justice Blackmun, through his tendentious and false reliance on serial means,

00:30:23.760 said, oh, you know what, that was just a weird blip in the midst of our nation's history, which is

00:30:29.720 really more about doctors protecting their turf from midwives. And it didn't actually have anything

00:30:34.060 to do with unborn children. It was kind of patriarchal and it was professional sort of special pleading on

00:30:42.420 the part of doctors, which is completely false. But the fact that Justice Blackmun could say that

00:30:49.680 means that he could reject the argument that the right to abortion is in no way implicit in the

00:30:57.880 nation's history and traditions, which is obviously true. There's no sense at all in which up until

00:31:02.940 1973, abortion had any roots in American constitutionalism, American law, the American

00:31:08.700 legal tradition. It was quite the opposite. And it's only rules that are implicit and embedded in that

00:31:15.620 kind of tradition that rise to the level of unenumerated rights that can be vindicated and so

00:31:21.460 that justices can point to even though they're not written anywhere in the Constitution. So it's

00:31:25.560 genuine. I mean, I think the biggest lie of all, speaking as a lawyer, is the notion that the due

00:31:31.120 process clause of the 14th Amendment has anything to do with abortion at all and in any way restrains

00:31:38.460 the states from protecting the weakest to most vulnerable unborn babies and their moms and families.

00:31:45.620 Rose overturning was an historic victory, but abortion is still legal in many states. And the

00:31:51.740 only way we'll truly see lasting cultural change is by changing the hearts and minds of pro-abortion

00:31:58.080 people. Live Action is the most prominent pro-life online group in America, reaching millions of young

00:32:05.100 men and women with the truth about the killing of pre-born children. No other organization reaches as

00:32:11.140 many people online as live action. Its content has proven to transform opinions from pro-abortion

00:32:17.540 to pro-life. Most pro-choice people don't know what abortion actually entails. When they see the

00:32:24.400 brutality it inflicts on pre-born children, they rethink their stance. You can save the lives of

00:32:30.860 countless children by making a donation today at liveaction.org slash dailywire. That's

00:32:37.600 liveaction.org slash dailywire. Live Action is a non-profit organization that I support. They've

00:32:44.640 done tremendous work in building a culture of life. Please make a donation today to help them reach

00:32:51.260 young people with the truth so we can wipe out abortion in this country once and for all. Donate

00:32:57.580 today at liveaction.org slash dailywire. That's liveaction.org slash dailywire. And thanks for your support.

00:33:07.600 It is simply true that there have been indictments and prosecutions for abortion. Prior to the

00:33:20.500 founding of the United States of America, the U.S., we brought the common law with us. The common law

00:33:24.580 abortion was a crime. Now, it was complex trying to prosecute abortion because when you prosecute any 0.70

00:33:32.320 crime, you have to have not just a state of mind, mens reis, you have to have an actus reis. You have to

00:33:36.560 have something that you can point to that will cabin the discretion of the prosecutor and put

00:33:40.920 people on notice that what they're doing is unlawful. So how can you meet the standard of

00:33:46.900 evidence if you want to prosecute an abortion? How do you know a person was pregnant? The only way to 0.99

00:33:52.040 know people were pregnant is to have the external signs of being pregnant. And so when we were not

00:33:57.300 good at determining when a person was pregnant, it was part of the law that the prosecution would happen 0.95

00:34:03.240 later in pregnancy or later in pregnancy, there'd be more severe restrictions or penalties. And this

00:34:09.720 was true from the founding of the American Republic and then in the beginning of the 19th century.

00:34:16.860 So we have common law, right, which is judge-made law that is just as enforceable as codified law,

00:34:24.600 positive law, laws that are instantiated in statutes and regulations. And abortion was a crime 0.91

00:34:31.760 at common law before the founding. During the founding, there were indictments. And my colleague,

00:34:36.880 John Finnis has done an extraordinary job detailing the historical record on that. My other colleague,

00:34:41.640 John Keown at Georgetown has also detailed this. There's a wonderful professor of political science,

00:34:46.840 Justin Dyer at the University of Missouri, who's written at length about the historical record and

00:34:50.840 the misuse of history to promote abortion. And from the nation's, from before the nation's founding, abortion was deemed

00:35:00.720 to be a serious legal wrong. And then as we became better and better, and our sense of embryology and

00:35:08.360 biological development became more sophisticated, what we see is a moving back of the moment at which abortion

00:35:17.840 will be prosecuted to the moment of conception. We saw that in the 19th century. And then there's a big

00:35:22.260 debate around the meaning of quickening, whether a woman quick with child simply means pregnant or 0.98

00:35:26.800 whether it means at the stage of development when you can feel the child moving. There's a lot of

00:35:30.880 dispute about that. It's not at all clear to me that, it's certainly not clear to me that there was any

00:35:35.760 kind of moral distinction being drawn in the law between an earlier stage unborn child and a later stage

00:35:41.200 unborn child. These were problems of proof. These were problems of process that the criminal law had to have

00:35:47.120 extrinsic, verifiable evidence to rely upon in order to mount a prosecution in those instances.

00:35:54.980 But the false history, the dishonest history is, oh, prior to the codification and positive law

00:36:01.340 of restrictions on abortion, we have to infer that there was a liberty to obtain an abortion.

00:36:08.040 Nothing could be further from the truth. Just because something's not codified doesn't mean

00:36:11.980 there's a liberty interest, especially if it's illegal at common law. So it's a complete and

00:36:18.160 utter, I think, intentional distortion of history on the part of serial means, which sadly has been

00:36:23.260 repeated ad infinitum by abortion rights supporters. It's been repeated by justices. It's been repeated

00:36:28.380 by every year we have an amicus brief in these kinds of cases signed by historians repeating the

00:36:35.640 demonstrably false propositions of serial means. Historians motivated by advocacy rather than

00:36:41.180 scholarship. So because serial means plays such a big role in this discussion, can you give audiences

00:36:48.080 a brief kind of almost encyclopedia entry of who was serial means? Well, serial means was simply

00:36:55.220 an advocate who was affiliated with NARAL. Serial means was a man who was passionately committed to

00:37:01.520 abortion rights, to abortion itself. And he undertook the task of generating false histories in law review

00:37:10.120 articles that then served that Justice Blackmun then relied upon in multiple times in the decision

00:37:16.540 in Roe v. Wade, the false representations of which have been, again, repeated over and over again by

00:37:22.580 advocates for abortion since then. Serial means falsely stated that there was a liberty interest in

00:37:28.680 abortion prior to the 19th century in the United States, which could lead Justice Blackmun and others

00:37:33.980 to claim completely implausibly in the run-up to Roe v. Wade that the right to abortion is deeply rooted

00:37:41.740 in Americans' history and tradition, which is the standard, one of the standards, for finding an

00:37:47.300 unenumerated, unwritten right in the Constitution. What was the common law view prior to codification

00:37:53.680 in the 19th century? What was the common law view of abortion? Abortion was a crime at common law,

00:37:59.720 not just at the founding of the American Republic, but before the founding in England as well.

00:38:07.120 And has Planned Parenthood, has the abortion lobby, what are they arguing about the history of abortion?

00:38:17.660 So the grounds for abortion rights advocacy in the courts has shifted. In fact, I think it's right 1.00

00:38:28.420 to say there's not a single justice ever since Roe v. Wade, certainly no justice sitting on the court

00:38:33.900 right now, that has ever defended the reasoning of Roe v. Wade. Roe v. Wade, in some ways, is a

00:38:39.040 dramatic, is an embarrassment to the court. Planned Parenthood versus Casey didn't reaffirm Roe or

00:38:49.100 didn't reestablish or reground a right to abortion because it was persuaded by the extraordinary 0.89

00:38:54.060 persuasive reasoning of Roe v. Wade. Probably for obvious reasons, abortion rights advocates really 1.00

00:39:00.540 don't argue the constitutional interpretation side of Roe and Casey. What they argue is the principle,

00:39:06.840 the common law principle of stare decisis, which is the principle that invites justices to reaffirm

00:39:13.580 prior decisions, even if they were wrongly decided, in the interests of stability and transparency,

00:39:18.600 and to prevent radical disruptions, social disruptions in areas of life where people have

00:39:24.460 come to rely upon those prior precedents. In fact, in Planned Parenthood v. Casey, the court spent most

00:39:30.740 of its time talking about stare decisis, not about the original reasoning of Roe, which, by the way,

00:39:35.080 it mostly replaced and abandoned. But it's perfectly clear that there is no consistent, stable thread of

00:39:45.000 abortion jurisprudence in American law. It is a story of an outcome, the right to abortion in search

00:39:52.480 of a rationale. Originally, it was the right to privacy. Then it became the right to liberty. Then

00:39:57.060 it became something like equality. Originally, we had the trimester framework of Roe, which was replaced

00:40:02.860 by a pre versus post viability binary framework in Casey, which was then replaced again in 2016 with

00:40:09.360 the open-ended burdens and benefits balancing that Justice Breyer invented. And then in the June

00:40:15.880 Medical Services case, the most recent case on abortion we've had, you don't have five justices

00:40:21.420 who agree on what the holding of Casey was. So that kind of instability in the law itself already

00:40:29.240 undercuts the proposition that stare decisis is a justification for retaining the right to abortion.

00:40:35.020 It is a constantly shifting standard, constantly shifting norms, constantly shifting judicial tests

00:40:42.220 such that there is no there there to retain. It's a protean, ever-shifting source of justification

00:40:53.060 that is, again, meant to advance a substantive outcome, a policy outcome, that is to say the right,

00:41:00.320 basically unlimited right to abortion. So the justices, when they look at this in the Dobbs case,

00:41:06.740 to say, well, we all, any reasonable person has to admit that Roe v. Wade was wrongly decided.

00:41:12.500 There is no, there's no deeply rooted right to abortion in American history or constitutional tradition.

00:41:18.340 It just, there just isn't. So the only plausible grounds to retain Roe and Casey or the right to abortion

00:41:23.160 is this principle of stare decisis. But if you apply the rules of stare decisis, the questions

00:41:28.560 you're supposed to ask, is there a set precedent on which people have relied? No, there's not. It's

00:41:34.160 constantly changing. Moreover, the concept of reliance in American law has never been, never

00:41:40.300 meant, am I prospectively building my life around some rule in the past? Reliance is always set

00:41:48.780 agreements that are already in place that would be disrupted by a change in the law. It's a backwards

00:41:52.940 looking thing, not a forwards looking thing. And so all of the reasons that advocates for abortion 0.99

00:41:58.320 say stare decisis supports retaining a right to abortion in American jurisprudence, in fact,

00:42:04.780 they have nothing, no leg to stand on because the law was egregiously wrongly decided in the first

00:42:11.280 instance. It's had horrific real world and jurisprudential consequences. And no one could

00:42:16.540 honestly tell you what the law of abortion is until the court says what they think it is. It's changed

00:42:22.920 five or six times since 1973. So stare decisis is not an adequate grounds, but it's the strongest

00:42:29.320 argument abortion advocates have. And despite the, you know, despite the obvious medical and historical

00:42:37.140 inaccuracies that were kind of crucial to Roe at the time, do you still see those as, you know,

00:42:45.740 prominent arguments in the kind of public facing pro-abortion? The two most potent undemonstrated,

00:42:51.980 let's just say unproven assertions, um, relate to the relative safety of abortion and childbirth,

00:42:58.540 which has never been demonstrated. In fact, it has been shown that the, the claims about that

00:43:05.120 emerged from comparing completely incommensurable data sets that have nothing to do with each other.

00:43:10.640 Okay. Now it would take a long time to explain why that is, but suffice it to say that it has

00:43:17.480 never been empirically demonstrated that abortion is safer than childbirth and let you hear that over

00:43:21.880 and over and over again. Dianne Feinstein says that every single time there's a judicial nomination,

00:43:26.920 uh, uh, uh, to the Supreme court by a Republican president. She'll just repeat, isn't it true that

00:43:32.940 abortion is safer than childbirth? It's never been demonstrated. It is an undemonstrated assertion,

00:43:37.600 and yet it carries a lot of weight, but even more than that, it seems to me are the undemonstrated

00:43:43.140 and indeed, I think demonstrably false sociological assertions that women's success in America depends

00:43:50.880 on a right to abortion. Women can only realize equality with men, both in their forms of sexual 0.99

00:43:58.520 expression and in their participation in the economic and social life of the nation. If they have access to

00:44:04.460 abortion in the event, the contraception fails, or they have unprotected sex that results in a, in a,

00:44:09.680 in a pregnancy. It seems to me that that argument is the foundational normative argument for the

00:44:17.120 right to abortion in 2022. The foundational argument, the foundational normative argument for abortion

00:44:23.100 is an argument about reproductive justice such that the most prominent advocates of abortion will say

00:44:30.340 that if women don't have a right to abortion, that they will be, uh, second-class citizens at best. 1.00

00:44:37.600 They will not be able to express themselves sexually as men do, and at the same time participate in the 0.99

00:44:42.060 equal, uh, economic and civic life of the nation. Um, that is simply false, demonstrably false,

00:44:49.420 but it is the most important normative argument that abortion rights supporters have. And by the way,

00:44:54.720 if Roe v. Wade and Planned Parenthood versus Casey are overturned, it will not result in the

00:45:00.160 criminalization of abortion in America. It will return to the political branches, the freedom

00:45:05.040 that, by the way, is enjoyed by nations around the world, including countries that are much more

00:45:09.620 progressive than we are. Countries, by the way, who have much more restrictive laws on abortion than

00:45:14.000 we do. Countries like France and, and, uh, and, and Germany and, and, uh, you know, the Netherlands.

00:45:21.020 Pick a country, and they have restrictions on abortion that we don't have in our law by operation

00:45:26.780 of Roe and Casey. All overturning Roe and Casey will do will kick the matter back to the political

00:45:31.520 branches where we can finally reason together in the political sphere about how best to protect

00:45:36.760 women and children and families. And so the claim that women will be subjugated like the handmaid's 0.99

00:45:42.980 tale if the court overturns Roe and Casey simply is false. And we've seen, to my disappointment,

00:45:48.260 states anticipatorily liberalizing their abortion laws in dramatic ways. We've seen this in Colorado

00:45:54.580 most recently, basically legalized abortion up to birth, defined out of the circle of humanity,

00:46:00.960 embryos and fetuses. Uh, we've seen that in Illinois. We've seen it in New York. We've seen

00:46:06.620 state Supreme Courts find a right to abortion in their state constitutions like Kansas did a few years

00:46:11.940 ago. So if Roe be Wade and Casey are overturned, that's just the beginning of the legal and political

00:46:17.500 struggle to protect women and children born and unborn and families. It's not the end.

00:46:22.920 Regardless of what the law decides today, tomorrow, or even 10 years into the future,

00:46:29.820 why is it important that people understand a true history of the law and medicine and just

00:46:38.100 social debate over the issue of abortion?

00:46:40.340 Yeah. I mean, I think, I think truth is essential to any kind of reasoning together

00:46:45.920 about our shared life and about the common good and human dignity. And the idea that the

00:46:51.760 jurisprudence of abortion is built on lies, lies about, I mean, factual lies about science,

00:46:58.760 about when life begins, about medicine, about history and tradition, but also moral lies about what

00:47:04.980 it means to be a parent and what a child is entitled to vis-a-vis his or her parents and the care that

00:47:10.760 they don't have to earn, but that they simply are entitled to by virtue of that human relationship

00:47:15.680 of parent and child. It seems to me that right now the truth is the single best asset in the pro-life

00:47:24.560 movement's arsenal of persuasion. We have science on our side. There's no debate that there's not a living

00:47:30.980 human being inside the mother's body who is destroyed in a violent fashion in abortion.

00:47:37.380 The history of the American constitutional tradition is on our side. It is deeply rooted in

00:47:42.380 our nation's tradition history to allow states to protect unborn children and their mothers and

00:47:47.920 families. The sociological truth of the matter is that women don't need abortion to be successful

00:47:53.600 and to flourish. And the truth of the matter is that we're better than a country that kills its

00:48:04.020 unborn children on an industrial scale and forbids the elected branches of government from extending

00:48:09.300 even the basic protections of the law. When did abortion become illegal across the majority of states

00:48:16.340 in the United States? 1973, Roe v. Wade undid the laws of every single state in the union and transformed

00:48:23.520 them into essentially a regime of abortion on demand. And prior to that, when did the majority of states

00:48:33.560 make it illegal? Well, it was always illegal at common law. So at the time of the founding,

00:48:39.840 it was unlawful. But I would say by the middle of the 19th century, there were strong codified

00:48:48.120 laws criminalizing abortion. In all the states or most of the states or?

00:48:53.240 Virtually every single state. So when Margaret Sanger established her first birth control clinic 0.72

00:48:58.040 in 1916, what at that time does the law say about things like birth control and abortion?

00:49:05.380 I honestly don't know the answer to the question with regard to birth control. But in 1916,

00:49:11.000 abortion was criminalized nearly everywhere in the United States.

00:49:16.820 And how was the law in the view of kind of morality's role in lawmaking? How was that shifting

00:49:25.980 during the 1950s and 1960s? You know, there's a lot of upheaval going on with, you know,

00:49:31.120 the sexual revolution after that. You know, a lot of kind of talk of free love and women's

00:49:37.720 equality, you know. So my understanding of the middle of the 20th century and attitudes about

00:49:43.760 abortion is that originally there was a kind of movement towards liberalizing the laws of abortion.

00:49:49.640 Nothing like, by the way, what the Supreme Court did in Roe v. Wade. It wasn't a full-scale repeal of

00:49:54.800 any restriction on abortion and replacement with a regime of abortion on demand. What the Supreme Court

00:50:00.600 did in Roe v. Wade was more extreme than anything that was on the books at the time of that decision.

00:50:06.900 But there's an interesting history of liberalization of some laws in some states, some jurisdictions.

00:50:13.600 But as I understand the history, again, from drawing upon historians like Daniel Williams,

00:50:18.160 is that there was also a pendulum shift back in the direction of more pro-life sensibilities.

00:50:24.580 And in fact, my understanding is that the state of New York liberalized its abortion laws. But then

00:50:30.420 the state legislature decided to reinstate its abortion restrictions. That was vetoed by the Republican

00:50:36.820 governor.

00:50:38.680 A Republican governor?

00:50:39.860 Yeah. Later, it was, what's his name?

00:50:42.440 Rockefeller.

00:50:43.220 Rockefeller.

00:50:43.980 Yeah.

00:50:44.640 Yeah.

00:50:45.260 Who loved abortion, by the way.

00:50:46.400 So to what extent are you comfortable talking about the societal changes and shifts that were

00:50:56.440 happening prior to Roe v. Wade?

00:50:57.820 Yeah. I don't really, I'm not an expert, of course, but I would say that my view is that

00:51:02.300 I think it's complicated. I think it's more complicated than the linear story of

00:51:06.460 people realizing that abortion was a good that went along with the sexual revolution. I think that 0.97

00:51:10.860 people were pretty divided in their conscience and their minds about the law of abortion. And

00:51:16.180 while there was an initial flurry of liberalization, I think that tide shifted back

00:51:20.260 once the pro-life movement organized itself in a way that was persuasive to their fellow citizens.

00:51:26.600 And in 1959, the American Law Institute released a draft proposal that would make abortion legal in

00:51:34.640 cases of abnormality, rape, or incest, or when there was a threat to the woman's life. Can you talk about

00:51:39.620 that? Yeah. I would just say that the, sometimes the American Law Institute

00:51:43.340 proposal in that period is cited as an example of a pro-choice sensibility, a shift in the law.

00:51:51.900 But if you look at what they proposed, it in fact is quite restrictive. It does not constitute an

00:52:00.020 open-ended right to abortion, the likes of which we see functionally from Roe v. Wade and Planned

00:52:05.120 Parent v. Casey. The proposal was a kind of limited decriminalization of abortion under certain

00:52:10.580 circumstances involving extenuating circumstances, threats to a woman's health, or the abnormality in

00:52:17.720 the unborn child that would result in severe disability. So who was Jane Roe? Jane Roe was one of the

00:52:26.080 handful of litigants in the Roe v. Wade case. Her real name was Norma McCorvey. She was a young person

00:52:32.960 who had a very difficult life and childhood and lived in poverty and very unstable circumstances

00:52:39.580 and in fact misrepresented to the court that she had been raped and became pregnant as a result of

00:52:45.740 rape. Later turned out that was not true. And in fact, she ended up having the baby because the 1.00

00:52:52.660 litigation proceeded beyond the term of her pregnancy and made an adoption plan for that child.

00:52:59.260 And so she was a very famous litigant. I think she's a person probably who was taken advantage of

00:53:08.140 by the abortion rights movement. She later became a Christian and a pro-life advocate. And then

00:53:19.620 more recently, there was some evidence for the proposition that she had mixed feelings about how

00:53:25.520 she'd been treated by some of the pro-life advocates. And it's possible she was treated poorly

00:53:29.220 by them. And I think it's a little bit unclear as to what we should make of her later statements

00:53:36.240 about changing her views on abortion. I think it's hard to get a sense of what she thought ultimately

00:53:42.620 about that question. She's kind of has been all over the map. And I think she's a tragic figure and

00:53:49.460 a person that deserves our prayers. So, you know, just definitionally for audiences,

00:53:56.220 you know, if you were to describe Roe v. Wade in quick lay terms, what was Roe v. Wade?

00:54:01.560 Roe v. Wade was the decision by the Supreme Court in which they invented a right to abortion

00:54:05.680 based on a very strained reading of the Constitution and a false reading of American history.

00:54:13.640 And what was Planned Parenthood versus Casey? Planned Parenthood versus Casey is a five to

00:54:19.580 four decision, a bare majority in 1992, in which the court addressed the question of whether or not

00:54:24.960 Roe v. Wade should be overturned. And a bare majority concluded that it should not be overturned,

00:54:31.020 not just because they believed that there was a constitutional right to abortion as a matter of

00:54:35.620 interpretation, but also, and maybe even more so, because they thought that principles of stare

00:54:41.560 decisis required them to reaffirm Roe because that precedent was stable and important. But in

00:54:48.180 reality, they basically overturned Roe v. Wade, replaced it with an entirely new framework, which

00:54:54.060 still provided abortion on demand, but pursuant to a different normative justification, source of

00:54:59.560 authority, legal standard. And they essentially reinvented the right to abortion under the false

00:55:06.560 pretense of reaffirming the prior precedent. So how did Americans, you know, what, what was the

00:55:12.420 response from America in general to the Roe decision? Was it even divide or what? Yeah, I think,

00:55:19.960 I think they were, I think most people don't pay much attention to the Supreme Court. They certainly

00:55:24.960 don't attend to Supreme Court abortion decisions. Uh, they didn't in the early days as they did. In fact,

00:55:29.860 there was a belief among the justices that this was simply a case, uh, that was not a revolutionary

00:55:35.980 decision. In fact, Justice, I think it was Justice Powell in his, in his private writing said, well,

00:55:41.740 um, you know, we just invented a right to abortion. And of course the Catholics are upset and some

00:55:46.320 African-Americans are upset. Uh, but the Catholics will get over it. They get over everything. Uh, and so, 0.99

00:55:52.600 um, it was, uh, I think it was a kind of apex for lawless irrigation of power by the Supreme Court.

00:56:01.440 You'd seen the Warren court era. And then Justice Berger was the chief justice of the court in, in,

00:56:05.840 in 1973, the court was kind of in the habit of just doing social policy, uh, willy nilly based on its own

00:56:13.760 armchair philosophizing. And Roe v. Wade was seemed to be a kind of extension of that. Uh, but it fanned into

00:56:20.400 life, the pro-life movement in a way that really nothing else could have. I mean, there, it, it gave

00:56:25.700 rise to an organized orchestrated movement that has only grown in power and influence since 1973.

00:56:32.240 I mean, anybody who goes to the March for Life can see the fruits of Roe v. Wade. Even more

00:56:37.380 interestingly, the reaction to Roe v. Wade by progressive pro-choice legal scholars is instructive.

00:56:45.540 Uh, one of the most famous, um, pro-choice legal scholars, a man named, um,

00:56:50.840 John Hart Ely, who was a professor of law at Yale Law School, wrote a, uh, a law review article right

00:56:57.140 after Roe expressing his shock and disgust at the court's lawlessness. He said, it doesn't even

00:57:03.300 pretend to be constitutional law. There's no, no sense at all that this is a, an, an, an extension of,

00:57:08.960 of even the privacy jurisprudence. It's completely out of left field and is, uh, is a, is a, is a

00:57:15.920 horrifyingly lawless decision. Even though Ely himself favored abortion as a policy matter,

00:57:20.960 he thought the court was completely, um, making it up. Lawrence Tribe, uh, expressed similar

00:57:27.420 skepticism about the court's reasoning. Ruth Bader Ginsburg said, uh, that she thought Roe v. Wade was

00:57:32.580 an overreach. Uh, the court trying to do too much at once in a way that was, uh, the American public was

00:57:38.020 not ready for. Um, so even progressive and liberal legal scholars who themselves support abortion

00:57:44.680 rights, uh, were shocked by the, the shoddiness of the reasoning of Roe v. Wade, which explains why

00:57:49.840 the court felt the need to reinvent it in Planned Parenthood versus Casey.

00:57:54.280 So is there, is there much overlap in, you know, the legal reasons that abortion is, uh, allowed

00:58:03.280 currently under us law and the kind of social, uh, emotional arguments that the, that the kind

00:58:11.380 of public facing movement uses? I think they're very much connected to one another. I think that

00:58:15.260 if you were to boil down the normative core of Roe v. Wade and Planned Parenthood versus Casey

00:58:19.560 is that women have to have access to abortion to realize their freedom to participate equally 0.98

00:58:26.000 in the social and economic life of the country. That's it. Women can't be free without abortion. 1.00

00:58:32.460 That's the core of the argument. And I think that's the same argument that's made by Planned

00:58:35.820 Parenthood. It's the same arguments we have on NARAL. It's the arguments we heard in the oral

00:58:40.260 arguments in the Dobbs case. They view this as an existential threat to women's freedom and 0.80

00:58:46.120 equality. And they believe that if women lose the right to abortion, they will, they will be

00:58:50.800 relegated to a subordinate position in our, in our nation's life. Uh, I think that's demonstrably

00:58:56.660 false. I think, um, I think it's for some people, it's probably a rhetorical scare tactic, but I think,

00:59:02.720 I think some people really do believe it. I think there are women, uh, especially, uh, women of a

00:59:07.880 certain generation that really believe that abortion is the single most important linchpin of women's

00:59:12.940 freedom and equality and flourishing. And that's what drives Justice Blackmun's opinion saying to

00:59:17.600 restrict, to impose this burden on women, ruins their lives. And Planned Parenthood versus Casey 1.00

00:59:23.180 basically said the same thing. That's not a constitutional argument. There's nothing in

00:59:27.420 the constitution that says, um, that you have the freedom, you have to have the freedom to do

00:59:34.540 something that will empower you to express yourself sexually and also be free of the consequences of

00:59:41.060 that action. And to be able to, and, and nature, um, to, to, I mean, this is a quaint expression and

00:59:48.540 probably people would disagree with it, but by virtue of the natural endowments of our species,

00:59:54.360 women carry the pregnancy to term, men do not. And therein lies the inequality, the natural inequality 1.00

01:00:02.900 that is the moral grounding for a right to abortion. It's unfair that women have this, uh, burden that men 1.00

01:00:10.700 don't have, and therefore they have to use the lethal violence of abortion to even the playing 0.99

01:00:16.180 field. Has the court ever explicitly said that, I mean, cause you know, 90, I think the current

01:00:23.560 statistic is 95% of biologists explicitly agree that it's a human being from the moment of conception.

01:00:32.860 Right. And that's, that's even academic because at the moment in which an abortion is going to be

01:00:36.680 performed, there's simply no dispute. There's some people that make arguments that I think are

01:00:41.500 unpersuasive about the one cell zygote or the blastocyst or whatever. We're not talking about

01:00:48.680 the debates that happen in embryo research, which by the way, it's equally clear that that's a human

01:00:52.780 being too. But a fetus is a, is a completely formed, stable, individuated organism of the human

01:01:01.980 species. No one disputes that. It is not a clump of cells. That's a lie. Um, the question is not

01:01:08.560 when the life of the organism begins as a biological matter. That is a matter of consensus in terms of

01:01:14.640 the pregnancy, at least in terms of a fetus in the, in utero, who's the subject of an abortion.

01:01:19.700 Um, the dispute is over the moral status and the legal status of the unborn child. And that

01:01:24.760 incidentally is not, is not, again, all of these are policy and political arguments that we will have

01:01:30.520 God willing when Roe and Casey are overturned. There's nothing in the constitution that I read

01:01:35.940 that tells us that there's a right to abortion because of the balancing of burdens and benefits

01:01:41.520 that arise and have to be weighed in this human context.

01:01:45.820 Has the court ever gone so far as to explicitly say, look, in an, in an, in a weighing out of a

01:01:54.280 human being's right to live versus another human being's convenience, that convenience

01:02:00.480 sometimes should outweigh another human being's right.

01:02:02.860 The court has said explicitly that the interests of this, because the, the, the, the unborn child

01:02:08.320 is not a party in this, in a constitutional litigation, what we're debating over is state

01:02:13.540 action. We're just debating the state's authority under the constitution to regulate certain kinds

01:02:19.700 of behaviors. And so on the one side of the ledger, you have the state's interests in protecting life,

01:02:24.700 which is a, from time immemorial, governments have, have recognized that as a compelling state

01:02:29.320 interest to protect the life of the people within the borders from private violence of other people.

01:02:34.520 You could argue that that's the social contract, that's Hobbes and Locke and why we come together

01:02:39.380 to form communities and their sort of conjectural theory of how, you know, which of course is not real

01:02:44.180 history, but it's a kind of metaphor for why people come together in community to protect

01:02:48.920 themselves from private violence. That's, that's Hobbes, right? And, um, uh, everybody agrees

01:02:56.360 that there's a state interest in protecting one person from being violently killed by another

01:03:00.320 person. That's, that's basic stuff from time immemorial. Um, what the court has said is the

01:03:07.180 burdens on women, on their freedom, on their future is so significant that it categorically outweighs

01:03:13.560 the state's interest in the life of the unborn child. And the only way that could be true is if the

01:03:18.740 implicit premise of the court is that that unborn child is not a person, right? And it's even, it 0.95

01:03:24.360 becomes even clearer when the court says the state may not impose one definition of unborn personhood

01:03:30.280 on the woman such that her freedoms are abridged. Okay. Think about that for a minute. If there were a 0.98

01:03:37.780 class of human beings that the state said, or that the court said, Indiana is not allowed to declare to

01:03:43.820 be a person and everyone can decide for themselves on whether or not that's a person, then the Supreme

01:03:49.700 court has declared that to be a non-person because the hallmark of personhood is that other people

01:03:55.320 don't get to set your moral value at zero and take your life and, and your freedom.

01:04:01.080 So is the Supreme court, is the court in, is U S law in general, uh, is it defining the life of the

01:04:11.200 child in an accurate way based on modern medical consensus?

01:04:16.520 So I don't think medical science tells us what the moral status of the unborn child is. It's,

01:04:21.500 it's morally neutral. Modern science is morally neutral. What it tells us is that if you want to

01:04:26.620 define the species of homo sapiens and you want to know when the life of the individual organism

01:04:31.580 begins, it begins at conception. And it is inarguable that the child in utero who's, who's threatened by

01:04:37.540 abortion is a living member of the human species. The question, the, the, the dispute between pro

01:04:42.800 lifers and people on the abortion right side of the equation is, does everyone who's a human being

01:04:48.080 deserve the basic protection of the law or only some people? That's in a nutshell, the difference

01:04:53.140 between the pro-life position and the pro-choice position. The pro-choice position says, and Planned

01:04:58.020 Parenthood versus Casey and Roe v. Wade say that individuals, women, pregnant women can decide for 0.65

01:05:03.940 themselves what the moral standing of the unborn child is. Is it a person? Is it not a person? If

01:05:09.400 they choose it's a person, then they can act like it's a person. If they choose it's not a person,

01:05:13.180 then they can take lethal violence against it in a way that you wouldn't be permitted to against a

01:05:16.760 person. The personhood of the unborn child as a matter of constitutional law in this country,

01:05:23.220 as interpreted by the Supreme Court, is that it is a relative value. There is no, and, and they are,

01:05:29.720 they are ignoring the proposition that all human beings are created equal, which is a normative

01:05:34.700 proposition that I think includes every living member of the human family born and unborn.

01:05:39.760 They're rejecting a deep normative good of human equality that I think is embedded in our nation's

01:05:46.480 best traditions. And so that, you know, that gets to, you know, uh, one, one of the, you know,

01:05:53.960 follow-up questions, which is, does the practice of abortion violate, uh, you know, most of the,

01:06:01.100 you know, most of the major talking points of inclusion, equality, and personhood that modern

01:06:07.440 society claims to allow? I would go even further than that. I would say that liberals and progressives

01:06:12.320 frequently and correctly invoke the norms of equality and inclusion and anti-discrimination

01:06:19.440 and, um, welcoming, um, welcoming the stranger and caring for the other and collective action

01:06:27.340 in service of the weakest among us. Those are fundamental tenets of, of, uh, American liberalism

01:06:37.260 and progressivism as articulated by its proponents. Somehow when the topic shifts to abortion, all of

01:06:45.200 these liberals and progressives become radical libertarians. And they all say it's an individual's

01:06:51.700 right to choose how to configure their life plan. And if their own child threatens that, their own

01:06:58.220 child in utero, then there is an, a near absolute right to take that child's life. Nothing could be

01:07:04.640 more discriminatory. Nothing could be more antithetical to inclusion or welcoming or hospitality or solidarity

01:07:11.060 or, or, or, or any good of unconditional love and support and protection than the drive to abortion.

01:07:21.560 And, you know, as, as a corollary to that, you know, what you just said is nothing could be more

01:07:26.380 discriminatory. You know, one of the questions I have is, you know, is, is there, are there other

01:07:32.380 reversals of kind of common discrimination in our country's history? And I'm thinking specifically of

01:07:38.080 the civil rights, you know, movement, you know, are, are there, what are the closest kind of

01:07:42.100 correlations between kind of the legal acceptance of abortion and other forms of discrimination in

01:07:46.600 law? Well, I think, I think Brown versus board of education is a great example of the court

01:07:50.780 exercising extraordinary courage in the face of criticism that to declare segregation, which by the

01:07:57.900 way had been declared by the Supreme court in Plessy versus Ferguson many years before, right? Uh,

01:08:03.820 way more than the years that Roe v. Wade has been on the books. Plessy versus Ferguson said separate,

01:08:09.200 but equal segregation is okay. And Brown versus board of education, they didn't hesitate to overturn

01:08:14.840 that prior precedent and destabilize entire economies and ways of life that had depended upon

01:08:21.080 segregation or schooling. And that case was about schooling. Uh, they completely disrupted the

01:08:27.080 school systems, uh, across the country that had come to rely on Plessy versus Ferguson, but they did it 1.00

01:08:31.660 because it was the right thing to do. They did it because segregation is pernicious and it's invidious

01:08:36.900 and hateful discrimination in the same way that, that, um, that discriminating against a person by virtue

01:08:42.900 of how small or dependent or, uh, whether they're born or unborn, uh, is as well. And I think that, I think

01:08:50.560 that the civil rights movement is a useful example for us to look to and for the justices to draw courage

01:08:56.440 from, I mean, you think about loving versus Virginia, the idea that, that, uh, that laws that ban people

01:09:02.920 of different races from forming families and marrying each other, uh, was, was, uh, was a rank

01:09:09.420 form of hateful, toxic discrimination. And the court had the courage to declare that to be unconstitutional,

01:09:15.320 even though it was a longstanding practice on which people had come to rely.

01:09:18.880 From a, from a legal standpoint, has the government and its view on the purpose of sex and, uh, sexual

01:09:29.900 activity has its view on the purpose of that changed, uh, from a legal standpoint over, over the

01:09:36.760 last two centuries? Well, I would say that in the case Griswold versus Connecticut, 1965, the court

01:09:43.040 declared that laws, which by the way, were not being enforced, um, that forbade the use of contraception

01:09:50.980 by married couples was contrary to the protection, protected good of privacy that was implicit in the 0.99

01:09:57.940 constitution. Um, interestingly, I think some of the reasoning behind Griswold was not a kind of

01:10:07.400 sexual liberationism, but actually a defense of the sanctity of marriage and the sanctity of the

01:10:13.620 marital home and the marital bedroom. Um, and one can see immediately how the good of privacy and

01:10:20.000 people who are pro-life could see how the good of protecting the integrity of the marital home,

01:10:25.040 the marital bedroom, the marital intimate relations is an important good for us to defend. And if there

01:10:29.340 is a kind of longstanding norm that we should stand up for, that's one of them. But then it pivots

01:10:35.140 from the good of marriage and the, and the, and the, and the spouse or the privacy of the spouse

01:10:39.840 or the intimacy of the spouses to a kind of individual right when they shift and they say,

01:10:44.580 okay, we're going to say that, um, in a case called Eisenstadt v. Baird, that single people

01:10:49.300 have the same, have the same right to contraceptive. It became a kind of right to, uh, make reproductive

01:10:54.600 choices in a way that, uh, that were more reflective of the, the norms of the sexual revolution.

01:11:00.640 Um, so I, you know, I, I mean, the Supreme court is supposed to interpret the constitution.

01:11:06.280 They are not supposed to put their finger in the wind and see which way the normative

01:11:11.880 winds are blowing in culture to, to adapt their reading of the constitution to modern

01:11:17.360 culture. That's, that's the role of the political branches. It's not the role of the

01:11:20.540 Supreme court, which is why even for a person who is pro-choice like Ruth Bader Ginsburg or

01:11:25.800 Lawrence tribe or John Hart Ely, there's a real strong line of criticism that one can

01:11:30.680 mount against Roe and Casey. In fact, you could imagine someone saying, and I'm sure there

01:11:34.580 are people who would say they are pro-choice as a matter of law, a matter of policy, but

01:11:39.640 obviously the constitution doesn't protect a right to abortion. It should be a matter for 1.00

01:11:43.000 the political branches. Now you would hope that some of the justices on the court who,

01:11:47.460 who, uh, favor abortion rights as a policy matter would have the integrity to take that

01:11:51.900 point of view. And truthfully, Dobbs should be a nine nothing decision. Um, but, uh, unfortunately

01:11:58.020 that's not where we are and our justice, we have justices, um, who will, who will, um, succumb

01:12:05.360 to the temptation of reading into the constitution, their own policy preferences.

01:12:09.360 So I guess the last question I would have is, you know, for a lay person who doesn't understand

01:12:15.120 constitutional law, the history of, you know, constitutional arguments in, in cases and the

01:12:21.420 precedents that they've set, what is the one thing that a lay person should understand?

01:12:26.940 Lay people should understand that there is no right to abortion in the text of the constitution.

01:12:33.020 There's no right to abortion in the constitutional tradition of this country. There's no right to 1.00

01:12:37.660 abortion in our, on our legal history or our legal practices. Quite the opposite. Abortion was a crime 0.90

01:12:44.620 at common law. Abortion was a codified, very serious crime in the 19th century. It was only

01:12:50.700 in 1973 when seven justices decided that the right to abortion was so important as a policy matter

01:12:58.900 and as a philosophical matter that they grafted it onto our constitution and fanned into life

01:13:04.940 the most toxic, um, zero-sum political dispute and arguably in modern history. Um, they took to

01:13:15.600 themselves the authority to settle the question of abortion about which people strongly disagree

01:13:19.480 and prevented the political branches from government from even deliberating in a way

01:13:23.720 to find a solution that the losers of that deliberation could live with. Imagine the court taking the most

01:13:30.440 hot-button issue possible, declaring an absolute victory for one side when the country split down

01:13:36.400 the middle and saying, go home, we've settled this question by virtue of our interpreting a constitution

01:13:42.180 that says nothing about the issue at all. That's what Roe v. Wade is. That's what Planned Parenthood

01:13:46.500 versus Casey is. It's a stain on our law. It's a stain on our nation. And, um, truthfully,

01:13:52.140 uh, we shouldn't rest until it's overturned.

01:14:00.440 The abortion industry uses women for their own profit. These lies are pervasive. They're not 1.00

01:14:13.400 difficult to refute, but it can be difficult to penetrate that culture of lies to get the truth

01:14:20.240 out there. We have to do it. We have to do it because it's right. We have to do it for the victims

01:14:28.120 of abortion. We have to do it for the women who are taken in by this industry, who are used for 1.00

01:14:35.260 dollars, even to their own detriment. If you enjoyed this conversation with Carter Sneed,

01:14:42.820 you'll want to check out our Daily Wire original documentary, Choosing Death, The Legacy of Roe.

01:14:48.840 In it, we take a wrecking ball to the four fallacies keeping the abortion industry alive. 0.94

01:14:53.940 To watch it right now, go to dailywireplus.com.

01:14:58.120 Today, if you join, you will see not only this full movie, Choosing Death, The Legacy of Roe,

01:15:05.620 but you will have access to The Daily Wire's entire catalog of content, which we can only

01:15:10.460 produce and distribute because of you, with your support. I'm Michael Knowles. This is the

01:15:18.180 Choosing Life Podcast. We'll see you next time.

01:15:21.160 The Choosing Life Podcast is a Daily Wire production produced in association with Outer

01:15:29.620 Limits. Our technical and support team includes Ian Reed, Jesse Eastman, Ryan Moore, Mariah

01:15:35.580 Cormier, and Jim Wirt. Copyright Daily Wire 2022. Thanks for listening.

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The Michael Knowles Show - September 24, 2022

Choosing Life： A constitutional history of Abortion - Carter Snead

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