Choosing Lifeļ¼ A constitutional history of Abortion - Carter Snead
Episode Stats
Length
1 hour and 16 minutes
Words per Minute
170.90565
Summary
In Roe v. Wade, the Supreme Court ruled that a woman's right to choose her unborn child was a fundamental right under the United States Constitution. Carter Sneed, a professor of law at the University of Notre Dame, takes a look at Roe s impact in the context of American history and the Western legal tradition.
Transcript
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and people on the abortion rights side of the equation is,
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and Planned Parenthood versus Casey and Roe v. Wade say,
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what the moral standing of the unborn child is.
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as a matter of constitutional law in this country,
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I'm the director of the DeNicola Center for Ethics and Culture here at the University of Notre Dame,
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where I'm also a professor of law and concurrent professor of political science.
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Before joining the faculty at Notre Dame in 2005, I served as general counsel to President Bush's counsel on bioethics.
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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.
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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.
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So which of the, which of the lies that you have in mind?
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So first one, um, the pro-abortion movement promoted the idea that abortion is purely a medical issue instead of a moral issue.
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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?
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So Harry Blackman had a deep connection to the Mayo Clinic.
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Um, he was deeply attached to physicians and physicians' rights.
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And in his conception and execution of the opinion in Roe v. Wade, that really comes through.
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It comes through almost as a pro-doctor opinion more so than even a pro-woman opinion,
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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.
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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
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about the sociological realities of abortion, about the safety of abortion, about the history of abortion,
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both as it's practiced in Western culture, but also in terms of the way abortion was treated in American law from the founding
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or even the common law before the founding up until 1973, none of that information was ever presented at the trial level,
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which is where in the law, in the United States at least, we, we have, uh, we sort out the contested disagreements over facts.
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In fact, there's a truth finding process of the trial in American law and American courts that's an adversarial nature.
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You have two parties, uh, presenting their competing vision of the facts.
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You have expert witnesses, you, you, uh, and you have a jury usually, or a judge sitting as a trier of fact
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who resolves these factual disputes, uh, by a pretty, you know, compelling standard of, of evidence
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so that when you get up to the Supreme Court or even the lower appellate courts,
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you can have confidence in the truth of the factual assertions that are part of the record.
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There was no factual record in Roe v. Wade for unusual procedural reasons.
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It came up through, uh, through the trial courts and it was resolved by the trial courts in Texas
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They said, well, we think that Texas's laws restricting abortion, uh, implicate the Ninth Amendment.
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Uh, the Ninth Amendment's, um, guarantee or reservation to the people, uh, of rights that
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are not here enumerated or not to, you know, I'm not, I'm, the exact language of the Ninth
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Amendment is, is somewhat mysterious and had been thought of as a pretty inert part of the
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Constitution until the 1965 in a case called Griswold v. Connecticut involving contraception.
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In a concurring opinion by Justice Goldberg, he cited the Ninth Amendment as a possible source
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of authority in the Constitution for a right to privacy that included the right of married
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So the trial court in Texas simply said, we don't need to find any facts here.
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We don't need to resolve any questions about history or science or sociology or medicine
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We're just going to, we're just going to look at the law and say, well, it violates the
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right to abortion, which is part of the right to privacy.
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No one had ever really seriously made that case before.
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And so it comes to the Supreme Court directly from the, from the trial court without any factual
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So Justice Blackmun goes on and on in the opinion about the safety of abortion versus childbirth,
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about the history of abortion, about the history of the law of abortion, none of which was tested
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for accuracy or, or, or validity in the trial court below.
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It's all just his own rank speculation based on his research, which by the way involved re relying
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on a handful of larvae articles written by the former general counsel of NARAL, uh, in spinning
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out a completely tendent, tendentious and false account of the history of the way abortion had
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been treated in the law, falsely stating that there was a generalized liberty, interest in abortion
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prior to the middle of the 19th century in the United States.
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We have indictments for abortion stretching back for the, to the founding era, before the
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It was always a common law crime, uh, and abortion restrictions were codified in the middle
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of the 19th century in statutes. But Justice Blackmun completely took hook, line, and sinker
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this, this entirely made up and falsified history of abortion and, and relied on that to find the
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proposition that, uh, there was that, that, that, that a right to abortion was in some ways consistent
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with the history and tradition of the American constitutional system, which is false.
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And so, you know, just for the audience, can you give us a sentence on, you know, who was
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Justice Blackmun was, uh, was a justice appointed to the, to the, uh, Supreme Court of the United
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States. He, um, he, uh, was on the U.S. Court of Appeals for the Eighth Circuit, which is, which
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is part of, uh, which is included the geographic region of Minnesota, where he was from. He wasn't
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especially distinguished, uh, I don't think as a jurist. And, um, and looking at his papers
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now, actually, the archives from his time on the court have been, uh, have been opened. And the
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story of Justice Blackmun as a justice is, is, I don't think a very positive story. It's a story
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of someone who was very insecure, who relied heavily on the work of his clerks, which are
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recent law school graduates, uh, in some cases quite ideological in their orientation. And, um,
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and the, and the, and the papers that we see from around the time of Roe v. Wade show that Blackmun
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was really grasping around for some kind of a theory about how to justify, uh, a right
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to abortion. Even though, of course, it said, there's nothing like that mentioned in the
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constitution, not even concepts that are related to abortion in the constitution, given the
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fact that it is not merely a medical procedure, uh, which by the way, medical procedures are,
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are routinely regulated by the states. It's entirely the purview of state law to regulate the practice
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of medicine under the, what's called the police power of the state to regulate for the health,
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welfare, and morals of the people inside of that state. The federal government doesn't regulate
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the practice of medicine, uh, virtually at all. So it's a very strange thing to constitutionalize
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the regulation of medicine, to claim that somehow a right to privacy is implicit in the due process
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clause of the 14th amendment that entitles, uh, essentially no regulation of abortion at all
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in the first trimester, only very minor regulation of abortion in the second trimester that Roe v.
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Wade says in the second trimester of pregnancy, the only state interest that supports regulation
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is the state trying to make abortion safer for women. And then third, in the third trimester
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of pregnancy, the, the justice Blackman said in Roe, um, that, um, that, uh, the state can regulate
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or restrict abortion, but it must always make an exception for the life of the mother, which
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of course the Texas law already did, or the health of the mother, which it didn't really define,
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but the reasoning of Roe points to very broad conception of health, including not just physical,
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not just even emotional health, but also financial health and familial health. And then in the
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companion case decided on the same day as Roe v. Wade called Doe v. Bolton, uh, the court
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is even more explicit. Justice Blackman says, uh, in making medical judgments about health,
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practitioners take into account not merely physical or, uh, emotional health, but also any
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aspect of a woman's wellbeing, which is essentially an exception so broad that it swallows the rule.
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And if that weren't bad enough, the case also reposes the authority and the abortionist
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to decide whether or not such a health interest is implicated. So, uh, the, the, the Fox is guarding
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the hen house, uh, in Doe v. Bolton and Roe v. Wade such that, uh, when you put those two cases
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together, you end up with a right to abortion that's more extreme than any right to abortion almost
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anywhere in the world with the exception of a handful of other countries that allows essentially
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abortion on demand up to the moment of birth. Uh, and the Washington post, uh, did an interesting
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fact check a few years ago and confirmed that that in fact is true. That is, that is the effect of,
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of, of, of Roe and, uh, and, uh, and, uh, why was justice Blackman delivering the decision for the
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court? Uh, the, the chief justice of the Supreme court assigns the opinion, uh, to be written to,
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uh, a justice who is in the majority. And so, uh, chief justice Berger, um,
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assigned the opinion to justice Blackman in that case. And that's why he had the authority to write
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the opinion in Roe v. Wade, which is a seven to two decision to dissenting justices were chief,
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uh, justice Rehnquist later chief justice Rehnquist and, uh, justice white who was appointed by a John
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F. Kennedy. So Democrat appointee. And you mentioned NARAL, uh, and justice Blackman in, in the, uh,
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opinion quoted NARAL a lot. In fact, quoted, quoted the, uh, the author, he quoted several
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law review articles, law review articles written by a man named Cyril Means, who was counsel for
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NARAL. Although he didn't, as I understand it, identify himself as counsel for NARAL in the
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articles themselves. These articles were entirely fanciful histories of American law concerning
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abortion, um, that completely inverted and disregarded volumes and volumes of scholarship
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by people who'd actually focused on these questions. And it was a piece of advocacy.
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It was a piece of advocacy written by literally an advocate for abortion of the most, one of the
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most important abortion advocacy organizations in the country. And justice Blackman relied on them
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as if they were scholarly publications by a disinterested professor.
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Right. And I think NARAL is interesting specifically because NARAL was one of the
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founders of NARAL was Bernard Nathanson who plays, you know, a significant role in the history of
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abortion. Can you talk about, uh, that tie between, you know, a lot of the materials used by the court
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kind of the facts and then Nathanson and who he was? So it's a great, a great question. And there's
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an interesting connection, especially along the theme of dishonesty. So Cyril Means' so-called history
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of American law regarding abortion is completely made up. It's fanciful. It's false, probably
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knowingly false, um, and relied on by Justice Blackman and as if it were true. And that creates
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devastating effects for American jurisprudence and, and the, and the law and everything else that
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abortion has touched and corrupted since then. Um, but, uh, the author of the, the articles that
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Justice Blackman was relying on was a man named Cyril Means who was affiliated with, with NARAL,
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the National Abortion Rights Action League, later called NARAL just, and in fact, I think it had a
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previous name as well, which is different from NARAL and the National, but it was the same, always the
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same letters, but different, different, um, different, uh, meaning assigned to the letters.
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Anyway, the founder, one of the co-founders of NARAL is a man named Bernard Nathanson, who was a
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OBGYN who performed tens of thousands of abortions, but then had a change of heart, had a kind of
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conversion experience and realized that he had to spend the rest of his life making up for the fact that he
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had taken so many lives and contributed to abortion as a policy matter. And one of the things Bernard
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Nathanson said in his memoir, um, was, was that the, the, the organizers of NARAL understood they
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needed some powerful narratives to try to change people's minds. And so they simply started making
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things up. And one of the things that, that they made up, uh, was the proposition that there were tens
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of thousands of women who would die every year from so-called back alley abortions, illegally performed
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abortions in those jurisdictions where abortion wasn't available. Bernard Nathanson said that is
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simply made up. It's simply a made up number. They sat around a table and just from whole cloth made up
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that information, which of course has become a central talking point in the abortion rights
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discourse community. Namely that if we ban abortion, abortion will be driven underground and women will
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die. Uh, you may recall Susan Collins during, I think it was during the Kavanaugh hearings. And this is
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true, probably was true during, uh, Justice Gorsuch and Justice Barrett's hearings as well. Uh, you
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know, thousands of coat hangers sent to congressional offices, Senator offices, uh, including Senator
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Collins to try to convince them that they have to vote against these justice, these, these nominees to
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be justices because Roe v. Wade hangs in the balance and women's lives hang in the balance. But Bernard
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Nathanson said, that's simply a lie just in the same way that serial means of history was a lie. And, uh,
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and, and one can say, I think, uh, fairly that the, the sort of abortion rights advocacy, the abortion
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rights movement, the law of abortion is built on a, on a house of lies. And, you know, that brings us
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to, you know, you perfectly covered, you know, that second lie, which is that thousands of women a year
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would die from abortion. That's, you know, the second point that we kind of are organizing the film
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under, uh, you know, the third is, uh, depicting the pro-life movement as a group of religious
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zealots who just want to force their religious beliefs on, you know, an unwilling
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country. Uh, can you, can you talk about, you know, did that work its way into the court?
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Yeah, absolutely. So I, I would say, well, so there are certainly justices on the court,
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later justices, Justice Stevens, for example, John Paul Stevens. And there's some other commentators
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who take this position, that the pro-life position is a religious position and therefore cannot
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consistent with principles of separation of church and state be a basis for legislation or any
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kind of state action. Now it may sound like a good talking point, but a moment's reflection realizes
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how, how bankrupt that idea is because the pro-life position rests on the same proposition
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that homicide laws rest on. In fact, prior to Roe v. Wade, unborn children were protected by homicide
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laws. In fact, to this moment, unborn children are protected by many homicide laws with exceptions
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carved out for abortions. You can, you can be sent to prison for life for killing, uh, an unborn child
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against a mother's wishes in many jurisdictions in this country and unborn victims of violence act
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statutes, for example. Um, and so, um, what I would say then is that, uh, is that the, it's a basic
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principle of law that any libertarian would even embrace that the role of law and government is to
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protect individuals from private violence. So it assumes, um, it assumes what it sets out
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to prove to say that the pro-life position is no more religiously based than homicide laws are
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religiously based because they're connected to the fifth commandment that thou shalt not kill.
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It is, it is just because a law, uh, the goods that a law aims at correspond to goods that are
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embraced by religious people or religious traditions doesn't make the law invalid. Otherwise, all of our
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laws would be invalid. Anti-poverty laws would be invalid since we, they seek to care for the poor.
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Laws against theft, uh, would be invalid. Um, there's, it's simply a category mistake to suggest
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that a law aimed at a good that also is shared by religious. Now it is true that a lot of, a lot of
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religious people, uh, are pro-life, but it's certainly not limited to religious people. Anyone
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who cares about protecting the weak from the strong, especially from lethal private violence,
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uh, can be pro-life. And we see that even now in the, in the modern, uh, pro-life movement,
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we have a, a great diversity of points of view. We have atheists for life. We have libertarians for
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life. We have, of course, we have religious people for life. We have, uh, and, and, and on and on and
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on. It seems to me that it's a very diverse movement at the core of which is the proposition
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that everybody counts, that everybody is entitled to the basic protection of the law and moral concern.
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And, uh, and yes, that's, that's a position that corresponds to many religious traditions,
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but it's certainly, it's not limited to that. And, um, and I would say further that, um, there's
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been an effort to paint pro-lifers, not merely as religious zealots, but most recently the,
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the rhetorical move, which is also false and, and, and dishonest is that somehow it's connected
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to white supremacy, that pro-lifers became, and there's a very strange history of evangelicals
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in public life that, uh, involve appeals to segregation, which weren't working. And so
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somebody else said, maybe if we appeal to abortion, we can motivate these evangelical voters. Well,
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the truth of the matter is that evangelical Christians, uh, originally in the 1970s,
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Protestants were not, were not supportive of the pro-life position. In fact, there were a lot of
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very prominent Protestants who were pro-choice. It was really the Catholic church traditionally that
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has held, that carried the banner, the pro-life banner. Since then, evangelical Christians have
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become very strong supporters of the pro-life movement, um, and, uh, important allies in that
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effort among the coalitions that fight for, for life. But, um, but there's a historian named Daniel
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Williams who wrote a very important book several years ago, tracing the right to life movement into
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the, the more conventional civil rights movements, rights for workers, rights for, uh, uh, minorities that
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experience discrimination, rights for women, uh, and, and, and so on. So it is, it is a, it is a movement
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that has its roots in, in social action and on behalf of the weak and the voiceless. And he
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demonstrates that with respect to, uh, voluminous historical record. It's a very useful book and it's
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important to put the lie to the false and scurrilous slander that pro-lifers have something to do with
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white supremacy. Now I'll tell you somebody who did have something to do with white supremacy.
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And that was Margaret Sanger, the founder of Planned Parenthood. Now I'm, I'm not going to say that
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she's a racist. I don't know if she's a racist or not, but I will tell you the historical record
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shows that she addressed in the late 1920s, the women's auxiliary of the Ku Klux Klan in Silver Lake,
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New Jersey. Now she may say, or her supporters may say she's not a racist, but she at least thought
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that her message would be welcomed by a profoundly white supremacist organization. Uh, so I, I'll just
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leave that there. I mean, that's, that's a kind, and moreover the kind of eugenics that she was an
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open proponent of obviously have racial overtones and others who were more deeply connected to the
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pro-choice movement were openly racist and their eugenic embrace of trying to eliminate, um, not
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just the poor and the disabled, but also certain minority groups. And, you know, finally, I'm curious
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to hear how, uh, arguments about, you know, abortions impact on welfare and, uh, you know, the wellbeing of,
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you know, mothers, you know, how that played into arguments in the court and decisions of the court.
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So, so the fundamental source of the right to abortion as articulated by Justice Blackmun really
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came and arose from his normative balancing of what he took to be the burdens of an unwanted or
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unplanned pregnancy on a woman versus the interest on the other side of the ledger, namely the state's
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interest in protecting nascent human life in the womb. Now, very early on, he says, I'm not going to
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take a position on the moral status of the unborn child, but then he zeros out the moral status of
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the unborn child by saying that the interests of the unborn are not weighty enough to overcome the
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interest of a woman whose, whose life and liberty and future and happiness is threatened by this
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unplanned pregnancy. It's not just the woman's life, liberty, future, and happiness, but also the
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entire community and family in which the unborn child emerges. And so he says, it's that balancing
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of interests and priorities that leads him to say, well, given the overwhelming interests of a woman in
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that context, we, we have to read into the 14th amendment, a right to abortion. It's essential that
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that be there. It has to be there for our nation to be just. We have, women have to have recourse to
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abortion to avoid the, the, the burdens and harms that come with an unplanned pregnancy or an unwanted
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pregnancy, unwanted, and, but not just an unwanted pregnancy, I should say, but unwanted parenthood.
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The burdens that he talks about are not merely the physical burdens or psychic burdens of pregnancy,
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but the burdens of raising a child that you don't want or, or you can't care for. And one can
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immediately see that, well, abortion, um, is not the only way of avoiding having the problem of raising
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a child that you don't want or don't care for. There are many non-lethal alternatives, including
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obviously adoption, uh, or strengthening the social net safety net to help women care for their own
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children. Um, but the assumptions of Justice Blackmun, again, based on his own rank speculation,
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uh, without any trial record to rely upon, social science evidence to rely upon, was that the burden on
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women is so great that there must be a right to abortion that is grounded in privacy. And then in 1992,
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in an opinion called Planned Parenthood versus Casey, uh, Justice Kennedy writing for a three
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judge plurality, uh, uh, set doubles down on that proposition shifts from the concept of privacy to
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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
00:25:33.780
of the nation being threatened by an unplanned pregnancy, such that in order to be equal to men,
00:25:39.280
in order to live their dreams in the way that men can, they have to have recourse to abortion.
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
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
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
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
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
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
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
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
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
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
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
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
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
00:38:54.060
persuasive reasoning of Roe v. Wade. Probably for obvious reasons, abortion rights advocates really
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
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
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.
00:44:37.600
They will not be able to express themselves sexually as men do, and at the same time participate in the
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
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
00:46:40.340
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
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
00:50:46.400
So to what extent are you comfortable talking about the societal changes and shifts that were
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
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
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,
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
00:58:26.000
in the social and economic life of the country. That's it. Women can't be free without abortion.
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
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
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
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
01:00:10.700
don't have, and therefore they have to use the lethal violence of abortion to even the playing
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
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
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
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
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
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
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
01:12:37.660
abortion in our, on our legal history or our legal practices. Quite the opposite. Abortion was a crime
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,
01:14:00.440
The abortion industry uses women for their own profit. These lies are pervasive. They're not
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
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.
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,
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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
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Cormier, and Jim Wirt. Copyright Daily Wire 2022. Thanks for listening.
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