00:12:45.540They wrote it together as a joint opinion because they were, I think, really trying to hide from accountability for what they were saying.
00:12:53.500And they threw out Roe's trimester system.
00:12:57.000And they replaced it with a new standard called undue burden.
00:13:00.500And we'll talk about that more in a minute.
00:13:01.700But Casey talked a lot about how Roe was a super precedent, that it had a high threshold to be overturned.
00:13:10.860And so, Justice Breyer kept repeating the portions of the Casey opinion, saying Roe was a super precedent because he's trying very hard to preserve it.
00:13:22.900I'm not sure his arguments were very persuasive to his colleagues, though.
00:13:26.380We actually have a lot of great questions about this case specifically from our Verdict Plus subscribers.
00:13:32.540People are very interested in the nitty-gritty, the legality of this, not just the cultural aspect of abortion.
00:13:37.940Before we get to that, we've compiled a bunch of video clips, or not video clips, audio clips, from the Supreme Court oral arguments to address some of these questions.
00:14:43.780It's the textual protection in the 14th Amendment that a state can't deprive a person of liberty without due process of law.
00:14:51.260And the court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.
00:15:00.080So, simple question from Justice Thomas, what right are we talking about?
00:15:04.340If I talk about the right to have a gun, I can point to the Second Amendment and say, there's my right to have a gun.
00:15:51.160Um, the reason he asked that question is because if you look at the Constitution, if you look at the Bill of Rights and you go look for the word abortion, you don't see it.
00:16:02.380Um, if you look for pregnancy, you don't see it.
00:16:06.480Uh, if you look for any authority for restricting and restricting and preventing states from, from protecting unborn life, you don't see it.
00:16:19.440And there's a reason for that, which is that many of the states did so, that that had been the case for 150 years of our nation's history, that the states had the authority, uh, to prohibit abortion.
00:16:30.260You know, the Hippocratic oath, you know, the oath that doctors take, every doctor takes, says, I will not help a woman procure abortion.
00:16:37.100Um, so there had been centuries of, of legal precedent that the states had the authority to do this.
00:16:48.300Well, to, to understand how we get to Roe, you have to get to a, you have to start with a decision called Griswold versus Connecticut, which was one of the precursors to Roe.
00:16:59.320It actually came out of Yale Law School.
00:17:00.780Your alma mater teed up Griswold versus Connecticut.
00:17:03.240And, and it was a, a woman who went to purchase contraceptives, was denied the, the, the, the ability to purchase contraceptives pursuant to a state law that was rarely, if ever, enforced.
00:17:16.440But they went and found someone to enforce it so that they could tee up this test case.
00:17:20.680The Supreme Court in Griswold versus Connecticut struck down the prohibition on contraceptives.
00:17:27.680Um, look, I think a prohibition on contraceptives is incredibly stupid.
00:18:49.860So, within that right to privacy, Justice Blackmun wrote, the right that came from a penumbra from an emanation that, mind you, that rights in the Bill of Rights are casting, is where the right to an abortion came from.
00:19:03.680It's one of the reasons why Roe versus Wade, even when it came down, was almost universally ridiculed as just, almost incoherent.
00:19:13.240Just, just bad legal writing, not tied to the Constitution, even liberals, you know, Ruth Bader Ginsburg was actually quite critical of the reasoning in Roe versus Wade.
00:19:59.340But they also protect life and, and liberty.
00:20:02.320You're free to do what you wish, but that restriction always has limitations when it impacts the rights of another.
00:20:09.740And, and so, the, the, I, I think it is a too cute by half argument to say it is within the liberty interest.
00:20:18.680And, and, and, and, but that, I would say is the more modern liberal argument for the right to abortion is to the extent they're trying to ground it anywhere.
00:20:31.680Um, they, they, they, they, they, they, they try to ground it within, uh, a liberty interest.
00:20:39.880Although autonomy, uh, was the, the basis that Justice Kennedy found for striking down Texas's law, uh, criminalizing, uh, homosexual sodomy.
00:20:54.860And, and, and he talked about the right to autonomy.
00:20:57.700And, and, and in fact, there's a passage that, that Justice Scalia ridicules as the sweet mystery of the universe passage, where he says, and I, I, I, I can't quote it exactly, but for each of us, the, the process of defining ourselves, our existence, and the sweet mystery of the universe is at the core of humanity.
00:21:32.060And please, I would appreciate it if you would address me as such.
00:21:34.660Well, and Michael, baseball has been very, very good to me.
00:21:40.140And that's from a Saturday Night Live before, probably before you were born.
00:21:44.220When I was, uh, just a glint in my father's eye, that's true, but, uh, but about as coherent, by the way, as Justice Kennedy's argument.
00:21:52.740And it, so the case you were just citing is Lawrence v. Texas, which strikes down laws against homosexual activity.
00:22:00.020And, and by the way, to be, to, to be clear, I think laws against homosexual activity are every bit as asinine as laws against contraceptives.
00:22:09.840I, I would emphatically vote against those laws as a state legislator, as a, as a member of the Senate.
00:22:16.520I don't think government has any business regulating in, in that instance, the, the conduct of consenting adults.
00:22:23.000I think you ought to be able to do what, do what you wish.
00:22:26.120But the reason Justice Thomas asked that question is there's sort of three different buckets from which different people have sought to try to derive, uh, a right to abortion.
00:22:38.700Well, and to, to your point on, on Lawrence v. Texas, Senator Scalia made this point.
00:22:43.740He said, there are plenty of things that are bad.
00:22:46.260There are plenty of things that I don't like, plenty of things that I do like and that are good, that are just simply not in the Constitution.
00:22:51.660He said there, there can be things that are SBC, stupid, but constitutional.
00:22:56.840And, and so as you're describing, this right to an abortion would appear to be a conclusion in search of an argument, a conclusion in search of evidence.
00:23:05.880And the evidence keeps changing and the arguments keep contradicting each other sometimes, but they, they come down and they, they say there's a right to an abortion and they reaffirm it.
00:23:13.780So then the question is, and this was a question that, that the judges and the justices are dealing with, is what about stare decisis?
00:23:31.080Justice Kavanaugh listed a number of landmark cases in the court's history that were not exactly settled law.
00:23:37.620Take a listen and history helps think about stare decisis as I've looked at it and, uh, the history of how the courts applied stare decisis.
00:23:46.460And when you really dig into it, um, history tells a somewhat different story, I think, than is sometimes assumed.
00:23:54.220If you think about some of the most important cases, the most consequential cases in this court's history, there's a string of them where the cases overruled precedent.
00:24:06.620Brown v. Board, uh, outlawed separate but equal, uh, Baker v. Carr, which set the stage for one person, one vote, West Coast Hotel, which recognized the state's authority to regulate business, Miranda v. Arizona, which required police to give warnings when the right to, about the right to remain silent and to have an attorney present to suspects in criminal custody, Lawrence v. Texas, which said that the state may not prohibit same-sex conduct.
00:24:36.620Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment.
00:24:46.480Gideon v. Wainwright, which guaranteed the right to counsel in criminal cases.
00:24:52.140Obergefell, which recognized a constitutional right to same-sex marriage.
00:24:55.820In each of those cases, and that's, uh, a list, and I could go on, and those are some of the most consequential and important in the court's history.
00:25:08.060And, um, it turns out, uh, if the court in those cases had, had listened and they were presented in our, with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, uh, and West Coast Hotel, adhere to Atkins, and adhere to Lochner.
00:25:26.960And if the court had done that in those cases, uh, you know, this, the country would be a much different place.
00:25:36.240So, Justice Kavanaugh is asking, okay, you're, you're, you don't have much of a legal or constitutional argument for abortion.
00:25:43.500You're staking a lot of your argument on stare decisis, on the idea that precedent, even a, even a badly decided case should, should carry some weight.
00:25:53.040Well, what about all these other cases that overruled precedent?
00:25:58.460Are we going to celebrate cases that overrule bad precedents, or are we going to just deal with precedents, even if they were egregiously decided?
00:26:06.800Well, that, that question that you just played from Justice Kavanaugh is probably the single most encouraging thing that happened at the oral argument.
00:26:16.000Um, I wrote at length in, in my book, One Vote Away, that, that I was quite concerned, uh, about Justice Kavanaugh and how he would rule on, on a challenge to Roe.
00:26:28.460And I was quite concerned, uh, about Justice Gorsuch as well.
00:26:33.120Uh, and, but, but especially Kavanaugh.
00:26:36.680And basically, let me step back for a second.
00:26:39.600What played out at the oral argument, as I listened to it and read through the transcript, was, I think there are six votes to uphold the state law, the ban on abortions after 15 weeks.
00:26:53.280All but the three liberals are going to vote, I believe, to uphold the law.
00:26:56.740Chief Justice Roberts, I believe, does not want to overrule Roe.
00:27:01.580And at the argument, he was spending much of his time casting about for a way, can the court do something smaller?
00:27:11.900Uphold the state law, but not overrule Roe versus Wade.
00:27:17.340And so he's trying to find, you've got three votes on one side.
00:29:00.580You know, Justice Kavanaugh began with Brown and went through a whole litany of big major cases that were overturning precedents.
00:29:08.700And the reason that's encouraging is you listen to that question.
00:29:11.780It suggests pretty strongly that Justice Kavanaugh is open to and leaning towards overturning Roe.
00:29:20.260That's a big, big deal, particularly because the questioning from Gorsuch and Barrett was encouraging as well.
00:29:28.360So if I were counting noses right now, we may well get to five on getting the court out of the business of legislating on questions of abortion.
00:29:39.680And we may well send that back to the states instead, which is where where it has always belonged under the Constitution.
00:29:47.160Well, that is that is what I want to get into beyond the legal arguments, which I think you have done as good a job as anybody possibly can to helping me to understand what the pro abortion side is arguing here.
00:29:59.860And it's it's not very coherent. And even many people who support abortion have agreed that the way these cases were decided doesn't make any sense.
00:30:06.480And the legal logic is not really there. But now we're talking about people.
00:30:10.440We're talking about votes who actually is going to have the guts to to do this.
00:30:15.860Thomas, he's he's going to overrule Roe 100 percent.
00:30:19.660Alito, he's going to overrule Roe. Almost. Yeah.
00:30:22.620You've got the three liberals. They're certainly not.
00:30:24.940Then you've got maybe a fourth liberal chief chief justice, John Roberts, who probably, as you think, does not want to overrule Roe.
00:30:32.160Kavanaugh, you like his arguments. So you're also saying then that Barrett and Gorsuch, you liked what they were asking.
00:30:38.400You felt that the way they were approaching the oral arguments showed that they were leaning toward overruling.
00:30:44.840I did that their questioning was quite good.
00:30:47.980One of the things that they emphasize is the point I made, that if Roe is overturned, it doesn't immediately ban abortion nationwide.
00:30:57.580It instead leaves it to the states. And by the way, there are a bunch of blue states in which abortions will still be widely available.
00:31:06.580Nobody thinks the state legislatures in those states are going to suddenly wake up tomorrow and ban or even significantly restrict abortion.
00:31:15.260You and I would hope and pray that they would.
00:31:19.460But as a political reality, that's not happening even without Roe versus Wade on the books.
00:31:25.500What we would see instead is each state adopting different standards and there would be a variety of them.
00:31:32.520And, you know, Justice Gorsuch, one of the reasons I was very encouraged, Gorsuch, Gorsuch is a very smart lawyer.
00:31:40.920OK. So to uphold the state law, Roe had a standard it made up of viability that basically said before the unborn child is viable, can live outside the womb.
00:31:57.900Before the unborn child is viable, the state can do very, very little to protect the life of the unborn child.
00:32:05.800After viability, the state can do more.
00:32:11.120And in fact, there's an interesting exchange where Chief Justice Roberts notes that in the Blackman papers.
00:32:16.820So this is after he retired as a justice, he released his papers, his notes on writing Roe versus Wade.
00:32:22.920And he admits in his notes that viability was just a concept he made up from when he worked at the Mayo Clinic and had nothing to do with the Constitution.
00:32:31.560It just he pulled it out of his rear end and invented it.
00:32:35.820And it's a funny little exchange because Roberts is like, well, this is sort of an odd source, the Blackman papers, but I guess they're there.
00:32:43.640And he admits it's made up and what Roberts is pushing for.
00:33:26.480The baby's got all his little baby parts.
00:33:28.240He's got his little fingers and his little toes.
00:33:30.080He he seems to have all the features of what we would call a baby.
00:33:34.920But because he doesn't meet that standard, you have to you have to change the standard.
00:33:40.280The standard that you you observe was just pulled out of thin air.
00:33:43.920Roe versus Wade established the trimester system, which Justice Blackman made up.
00:33:48.380In Casey, the joint opinion, the opinion that was written by by Kennedy and and O'Connor and Souter throughout the trimester system said it's made up.
00:35:32.200Like, how do we draw and what was interesting is the defenders of abortion, the Biden administration said, yeah, it's basically unworkable.
00:35:42.020There's no ways courts are just making it up to draw those lines.
00:35:46.580And what's fascinating about that, look, Gorsuch is pushing on that because if they admit there's no workable legal standard, that is one of the major factors under stare decisis.
00:36:01.620Stare decisis is the Latin word for respecting precedent.
00:36:05.420That's one of the major factors for overturning a precedent.
00:36:08.360So when Gorsuch is asking, without viability, is the legal rule unworkable, what he's saying is, and therefore, shouldn't we overturn Roe versus Wade?
00:36:23.900In other words, is there not a middle ground?
00:36:45.880So before we get to mailbag, as always, we're running late.
00:36:49.540I have to touch on what I think was the most persuasive argument made on the pro-abortion side.
00:36:55.880It was not made by one of the lawyers.
00:36:57.640It was made by one of the judges, Sonia Sotomayor, who said, if you overrule Roe versus Wade, how will we ever get the stench of politicization out of the court?
00:37:11.800Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
00:37:30.040Senator, how are you going to get the stench out of the court?
00:37:32.920Well, you know, they're the ones that put the stench there.
00:37:37.120It was – and Roe played a big part in putting the stench there.
00:37:41.100Ever since that day, the court has been deeply political, and it is why – and I got to say, you listen to the argument.
00:37:50.720Justice Sotomayor was relentless defending Roe, defending Casey.
00:37:58.300She was fighting – to be honest, she was a better advocate than either of the two lawyers standing at the podium arguing for abortion.
00:38:10.400Breyer does it more as a law professor, more in the abstract, and you saw Kagan.
00:38:15.100Kagan is the best litigator of the three liberals.
00:38:19.220And so she was trying to find ways to push, and she recognizes – I think Kagan recognizes – this law is going to be upheld.
00:38:29.880But I think Kagan is quite interested in who can we pick off – Kavanaugh, Gorsuch, Barrett – to join with Roberts and don't overturn Roe.
00:38:44.400And so Kagan was very focused on that.
00:38:47.660Do one of the three go for the middle ground or not?
00:38:51.200Sotomayor gave a speech that frankly is not all that different in her questions from what would be given by Elizabeth Warren or Maisie Hirono in the Senate.
00:39:02.900It was a political speech because with Roe, the court jumped emphatically into the political sphere rather than the legal and judicial sphere,
00:39:13.500which is one of the biggest reasons why I think the court should return it to the political sphere and let the people decide.
00:39:21.720And by the way, one of the reasons abortion is so contentious, so angry is because there's no outlet.
00:39:30.460Listen, we disagree, and abortion is a personal – it is an emotional – it is – the feelings on both sides are genuine.
00:41:05.220Go to verdictwithtedcruise.com slash plus.
00:41:08.880So, Senator, the first question I want to ask is from someone whose username is Twinsister.
00:41:14.320She says, why hasn't anyone on the pro-life side argued a fetus is a person and therefore entitled to due process as the Fifth and Fourteenth Amendments mandate before depriving him of life?
00:41:27.500Shouldn't the unborn child be given the equal protection under the law?
00:41:31.000So, look, that is a very good question, and it is a question that is debated in legal circles.
00:41:38.020You are right that the Constitution, the Fifth and Fourteenth Amendments, both protect the rights to life, liberty, and property, that you can't be deprived of any of the three without due process of law.
00:41:50.420There's another decision of the Supreme Court called Caroline Products, and in Caroline Products, footnote four, and lawyers are weird because footnote four of Caroline Products is actually a thing that lawyers refer to.
00:42:02.860It describes that the protections of the due process clause and of equal protection are more significant for what discrete and insular minorities.
00:42:17.840So that's the phrase in footnote four of Caroline Products.
00:42:20.840Discrete and insular minorities mean minorities that are readily identifiable, that are insular.
00:42:26.940In other words, they're weaker and can't protect themselves, and what Caroline Products said is, look, they can't use the democratic process to protect themselves because they're discrete and insular minorities, and so the constitutional protections are more robust concerning them.
00:42:40.620And there have been legal scholars who have pointed out it is difficult to imagine a more discreet and insular minority than an unborn child who, by definition, cannot protect herself or himself in the political process.
00:42:54.920You know, Reagan famously quipped, you know, I notice all the people in favor of abortion have already been born, and the unborn children are not given a voice in this.
00:43:05.980That is certainly a legal argument one can make.
00:43:09.740It is not an argument the court has ever gone so far as to embrace or suggest.
00:43:16.520And look, the consequence of that argument would be a Supreme Court decision protecting the right to life across the country.
00:43:24.480There are none of the nine justices on the court who have suggested they would go that far.
00:43:29.140Each of them has said the Constitution is silent on this.
00:43:32.920And so it is left to the states and to Congress to regulate it.
00:43:37.940And by the way, even the pro-life lawyers did not make this argument.
00:43:43.020They actually specifically stayed away from this argument, perhaps to try to appeal to some of those justices who are on the fence.
00:43:49.300Michael, the next question is less of a legal question and more of a cultural-legal hybrid question, so I want to focus on you for this one.
00:43:56.920It's from John Bennett. He says, during the Supreme Court case, Dobbs v. Jackson, the leading pro-abortion argument was the negative economic impact childbearing or childrearing is on women or has on women,
00:44:08.820which poses the question that doesn't it also have an economic impact on fathers?
00:44:12.780If fathers don't have a say, then why are they responsible for child support?
00:44:16.560If they are responsible for child support, shouldn't they also have a say in the termination of their child's life?
00:44:21.260And given the option to keep the child and release the mother of her responsibility?
00:44:25.420Well, I think certainly a father should have the say in whether or not a child will live or die and be killed through some obscene pseudo-medical process.
00:44:35.040But I don't think that we need to make an economic argument.
00:44:37.980I think the observation is really quite good that the pro-abortion side is now nakedly making a money argument.
00:44:47.320They're saying, well, look, you might decide to keep your kid or give up your kid, but if you keep your kid, it's going to cost you money.
00:44:54.640And if you give up your kid, you can sacrifice him to the idol of lucre and mammon.
00:45:24.760So it's a clever argument to try to make some economic argument on the right.
00:45:28.480But I just think it's completely missing the point.
00:45:30.920It is simply wrong and there's no amount of mammon or lucre that could convince me or I think any reasonable person otherwise.
00:45:39.980Well, and Michael, let me jump in on this also because this was a point that Justice Barrett engaged in where she pointed out that now states all across the country have enacted so-called safe haven laws.
00:45:53.020Where if a mother gives birth to a child and that mother does not feel she can care for that child, that you can go and hand over the child and the child will be cared for.
00:46:02.580And so it's just a protection in law if for whatever reason, whether economically, if the mother is destitute and can't afford to provide for the child or for whatever reason, there is an option to hand over the child to be cared for another.
00:46:17.000And so Justice Barrett asked about that and said, look, doesn't one of the arguments that was used by the majority in Roe and used by the majority in Casey was this economic argument that it could be a financial burden on a mother who is not – doesn't want to have a child at that point.
00:46:35.240And Justice Barrett said, well, look, hasn't this changed now that at least the economic consequence, if you don't want to bear it, the states have enacted laws to enable an alternative that protects the child's life without imposing a financial burden on you.
00:46:51.600And she also pointed out in the second line of questioning, adoption, which is obviously another avenue of that, and adoption – I think it was her question's point out that it was mentioned only in like brief passing in Roe but not really considered at any level that with adoption that is another avenue.
00:47:14.300That if you have a mother who does not believe that if you have a mother who does not believe she is in position to raise the child, that she has an option that can still preserve the life of the child.
00:47:26.220And this is such a great point, Senator, and it's one that very few people seem to understand the reality of because what the pro-abortion side will say is that there are so many orphanages and the foster system teaming with children who are not being adopted and therefore adoption is not a viable alternative.
00:47:44.840But it's really hiding the ball. It's really misrepresenting what's going on. It's true. It's very difficult for older children to be adopted and there are lots of problems in the foster care system.
00:47:53.720And of course, one could speak for hours about that sort of thing. But when we're talking about babies who are being put up for adoption as newborn babies, there are an estimated 36 couples for every newborn baby in the United States who is put up for adoption, 36 couples who want to adopt that baby.
00:48:10.120So there is absolutely no shortage of demand, to put it in economic terms. There's no shortage of loving homes. If a woman feels I am not at a place in my life where I can care for this baby, there are so many avenues, adoption and as you say, laws that will enact these safe havens. So the economic argument just does not carry water.
00:48:30.680There's also some kind of glorious poetic justice, I think, in Justice Amy Barrett or Amy Coney Barrett sitting up there, the mother of seven children, this woman who is just so distinguished, her career, she has achieved the pinnacle of what you can achieve when you are, you know, a lawyer the way that she is and her children have empowered her and not held her back.
00:48:49.940So there's some kind of, like I said, poetic justice in that. On that note, anybody who wants to submit a question for next week's episode of Verdict, you can do so at verdictwithtedcruise.com slash plus, become a subscriber on Verdict Plus, and you'll have behind the scenes access to Senator Ted Cruz to ask questions that we will answer right here on the show.
00:49:09.320So often we're talking about how everything is just going to hell in a handbasket and, you know, the news is all terrible, but this is really, you have convinced me, Senator, that there really is a concrete reason to hope here, specifically when it comes to this case, to the end of a grievous error, but we'll have to hold it there.
00:49:27.300Thank you, Senator. I'm Michael Knowles. This is Verdict with Ted Cruz.
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