Roe and Casey Are Overruled

a wedding. You are in Milwaukee, and we said we need an emergency bonus verdict to discuss and to celebrate the Supreme Court's overruling of Revuewade. Well, Michael, it's truly extraordinary and right. This has been forty nine years in coming. You have never lived a day on planet Earth without Roe versus Wade being the law of the land. I was two when Roe was decided, and for forty nine

years that was unshakable and unstoppable. And today we've returned to what the country was for the first one hundred and eighty five years, which is the elected people, the elected representatives of the people. The voters now have the right to decide questions of life. That that's how the Constitution was designed in the first place. But but I got to just pause and reflect on the extraordinary efforts

that led to yesterday's decision. Millions of activists, an entire movement, millions of young women and old women, and people marching in the March for Life every year, millions of grassroots activists who mobilized, who mobilized but behind the campaign of Ronald Reagan, who mobilized behind the campaign of George Herbert Walker Bush, who mobilized behind the campaign of George W. Bush,

who mobilized behind the campaign of Donald Trump. This is the culmination of forty nine years of work, of organizing, of mobilizing, of incredible and fervent prayer. And it's truly an extraordinary moment because a lot of us in the pro life movement have wondered would this ever happen, would Row ever be overturned? Was this feudal? Was this a waste of time? I can't count how many times I've

heard people raise those questions, This will never happen. These you know, these damn politicians are just they're just lying to us. They're just pretending and this will never happen. It there aren't words to scribe. It is the most consequential Supreme Court decision of the last fifty years, since Roe in nineteen seventy three that started us on this journey. It is. I have to say, I didn't I didn't expect it, even I didn't want to allow myself to

hope that it could actually happen. Even after the leaked opinion, I still sort of thought it was fifty fifty. I didn't know if the people who showed up outside the justice's homes and the attempted assassination of Brett Havanon and all the craziness, if that would succeed in in bullying

the justices. It obviously did not. And so now i'd like your take, not just as someone who's been in the pro life movement for a very long time, not even just as a US Senator, but as an expert on the constitution, someone who has argued cases before the Supreme Court, someone who clerked for the Chief Justice. What does the opinion say and do? Because there's the opinion, there's the opinion of the Court on the pro life law that brought this issue to the four that was

the Mississippi pro life Law six three. All the Conservatives, joined by Chief Justice Roberts, vote to uphold the Mississippi law. Then the Chief Justice splits off. He does not vote to overrule Row and Casey. So that's a five four decision. You've got Thomas, Alito, Barrett, Kavanaugh, and Gorsage vote to overrule Row and Casey. But then it gets even more complicated because Kavanaugh files his own concurring opinion, which seems

somewhat modest. Justice Thomas files his concurring opinion, which seems perhaps more ambitious, and then you've got the dissent from the liberals. I'm sorry. Chief Justice Roberts has his own concurring opinion. So anyway, what does it all mean. Well, let's walk through it, and let's walk through it systematically. So let's turn to the decision itself. So I would encourage Look, many of you, presumably are not lawyers, I would encourage you to sit down and read this opinion.

Justice Alito wrote this opinion for the ages, and yes it is a legal opinion and a Supreme Court opinion, but it is designed to be accessible for a reader to walk through. Not why Row was wrong, but it also explains how constitutional law is supposed to work. So the opinion begins the first paragraph. Justice Alito talks about

their three different groups in America. There's one group that are convinced passionately that an unborn child is a human life that is precious, that needs to be protected, that has full rights. He acknowledges, There's another group that is justice passionate, they're justice heartfelt that are convinced an unborn child is not a human right, that abortion is about the liberty of a woman to control her body and

her life. And then he points out there's yet a third group that is in neither of the two camps, but thinks that abortion should be allowed in some circumstances, but there should be significant restrictions on any points out where those restrictions are run. The gamut, I like that opening observation. One of the things that the majority opinion does a good job of doing is not denigrating those

who have different views. The majority opinion, I think it's fair to say, is not necessarily a pro life opinion. It's a pro constitution opinion. It's saying, we're judges, we don't know any better than you do. How to answer questions that are fundamentally moral questions or scientific questions or philosophical questions about whether an unborn child is entitled to the same rights as the rest of us. I think

that modesty is important. And the opinion goes through systematically points out for the first one hundred and eighty five years, those questions were decided by electedgislatures. That's how the Constitution operated. And it points out, and we've talked about this before. On the second page, Justice Alito says, after cataloging a wealth of other information having no bearing on the meaning

of the Constitution, he's talking about roversus way. The opinion concluded with a numbered set of rules, much like those that might be found in a statute enacted by a legislature. And it's Harry Blackman's opinion in row is really one of the worst judicial opinions ever written, and it's universally criticize it. In fact, the majority opinion here then quotes John Hardelet, who was a revered liberal constitutional scholar, and

here's what he says. One prominent constitutional scholar wrote that he quote would vote for a statute very much like the one the Court ended up drafting. If he were a legislator. So he agreed with abortion as a policy matter. But he then describes Row and says Roe quote was not constitutional law at all and gave quote almost no sense of an obligation to try to be This is a liberal talking about Justice Byron White, who was one

of the original dissenters in Row. He was appointed to the Court by President John F. Kennedy was on many issues a liberal, but Justice White in Rowe described the opinion as quote, the exercise of raw judicial power. Yeah, it's powerful. And then Rowe was the law until nineteen ninety two. And nineteen ninety two the Supreme Court decided Casey. And one of the reasons so many conservatives felt frustrated is a lot of us thought Casey would overrule Row.

You'd had the ragged revolution, you had justices, you had justices put on by presidents who had campaigned against Row. And what happened is that three of them, Justice Kennedy, Justice O'Connor, and Justice Suitor shocked everyone and together wrote a joint opinion in Casey, reaffirming Row. And look, the Casey opinion is another terrible opinion. It is an opinion. It doesn't attempt to defend Rowe. It doesn't attempt to go through and say Rowe was right. Roe is based

on the Constitution, Rowe was well reasoned. Well, it actually overrules parts of Row, significant parts of Row. Instead, it just says, under the principle of starry decisive starry descisi is a very important principle in law, which is that you respect precedents. The court was not going to overturn it,

and it created a new standard. So instead of Row drew lines during the pregnancy of the first trimester, the second trimester, the third trimester, and it laid out the different standards, and it said only in the third trimester does the state have an interest in protecting what it called potential life. Well, Casey came in and said, all right, don't don't use the Row standard anymore. Instead, what is permissible. What is impermissible is a law that imposes an undue burden, Yeah,

on a woman's right to access an abortion. Now, the problem is, what the heck is the difference between a due burden and an undue bird And nobody knows. This is magic. And so the majority opinion in Dabbs describes says the decision provided no clear guidance about the difference between a due and an undue bird. But the three justices who authored the controlling opinion quote, and this is one of the more grandiose, condescending statements in it. Here's

what Casey said. Quote called the contending sides of the national controversy to end their national division by treating the Court's decision is the final settlement of the question of the constitutional right on abortion. So, like philosopher kings on High, they say, you stupid people, stop bickering. We have decided. And you might think you have a right to vote, you might think you have a right to engage, but

you are wrong. Well, their assessment that suddenly after Casey people would say, okay, never mind, we accept that is not what played out. The operative paragraph of the opinion, found on page five weld that Rowan Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Rowan Casey now chiefly

rely the due process clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, But any such right must be deeply rooted in this nation's history and tradition and implicit in the concept of ordered liberty. Now there's a lot of substance there, so let's try to unpack that a little bit. And actually the court does a very good job of that. What is the source of the

right to abortion? Well, Rowe doesn't say, and in fact, as Dobbs says, Rowe was egregiously wrong from the start, that phrase is used a couple of times. The source though, I want to flip over to the discussion because it's so Alito is particularly withering, saying, okay, well, what part of the Constitution are you finding this this new found right? And the dab's opinion says Rowe expressed the quote feeling that the fourteenth Amendment was the provision that did the work.

But its message seemed to be that the abortion right could be found somewhere in the Constitution, and that specifying the exact location was not a paramount importance. It could be this amendment, it could be that amendment. It's the emanation of the pnumbra of the invisible inc They say, it's it's there and find it wherever you want to

find it well. And in fact they drop a footnote quoting from Rowe of a provision that is just really so, here's what Footnote sixteen says the court's words, whereas follows quote this right of privacy, whether it be founded in the fourteenth Amendments, contup to personal liberty and restrictions on state state action, as we feel it is. No, this is not reasoning, This is not thinking, this is feelings

we feel it is. Or as the District Court determined in the ninth Amendments, reservation of rights to the people is broad enough to accompass encompass a woman's decision whether or not determinate her pregnancy. What the majority opinion does as systematically dismantles the reasoning and row it's not explicitly protected in the Constitution and then says, Okay, just because it's not explicitly protected, that doesn't mean it's it's not there.

It might be implicitly protected, but if it's implicitly protected, there's got to be something implying in So the court systematically goes through where does this come from? And the principal basis that the defenders of Row and Casey allege it that it comes from as the fourteen Amendment to the Constitution, and in particular, in particular the due process Protection. The due process protection prohibits states from depriving people of life, liberty,

or property without due process of law. And it is liberty in particular. And so the argument is, what is the liberty you cannot be deprived of without due process of law? And how do you determine them? Now, there are two different legal questions that let's walk through for a second, because they also highlight a disagreement that then comes up with Justice Thomas in his dissent. There's a notion called substantive due process and there's a notion called

procedural due process. Procedural due process is what the actual provision in the Fourteenth Amendment and also the Fifth Amendment protects due process against the federal government. The Fourteenth Amendment protect next due process against the states. Procedural due process says the state can't take your life from you, can't take your liberty from you, can't take your property from you without due process of law, which means without illegal proceeding,

without notice, without opportunity to be heard. There's got to be. They can't just come in and seize your stuff and say ha ha. There's got to be a process. It protects procedural rights, which you would think call it something saying we're protecting due process would protect process right. So that's the ordinary understanding of due process. But the Supreme Court has created a second category that is called substantive

due process. And the idea is that there are some things that are just protected in substance that it doesn't matter what the process is, the government can't do them. There have been many constitutional scholars and some justices that have argued substantive due process is nonsense, it's made up. John Hardilier, i quoted before, had a great phrase also about substanti due process. He said, that's like saying green pastel redness, because substantive and process are the opposite of

each other. Like, it doesn't mean anything to say, but what the majority opinion does, it doesn't do anything significant in changing substant of due processes. And look, we've had lots of decisions that we've found things are protected by substant of due process. But they fall into two categories. One are rights that are explicitly enumerated in the Bill of Rights that the Court has incorporated against the States.

And we've talked about this before, how the Bill of Rights only applies to the federal government by its terms, but over the years, the Supreme Court has interpreted the due process clause to apply them against the states as well. So that's one mechanism, and virtually every right in the Bill of Rights has now been incorporated and applies against the states and against local governments as well. That's a

fairly straightforward way of determining. And what the Court is essentially says is they're all packed into the word liberty in saying, no staial deprive you of life, liberty, or

property without due process of law. In addition to that, there are some unenumerated rights that are not in the Bill of Rights that the Court has incorporated in but it has required pretty strict and the test it is laid out is whether or right is deeply rooted in our history and tradition and whether it is essential to our nation's scheme of ordered liberty. So that's the test. And look, part of the reason is if you're just saying,

what does liberty mean? If judges are allowed to define what they think liberty means you can have lots of different definitions of liberty, and very quickly judges become legislators saying here's what I think you ought to be able

to do. And so part of the reason the Court over the centuries has adopted this test, it's a way to constrain judicial power to say, okay, there will be implicit protections, and so for example, on page twelve of the opinion in Dabbs, it talks about one example of incorporating an express right against the states, and it says Justice Ginsburg's opinion for the Court in Tims is a recent example in concluding that the Eighth Amendments protection against

excessive finds is quote fundamental to our scheme of ordered liberty and deeply rooted in this nation's history and tradition. Her opinion traced the right back to the Magna cartam, Blackstone's commentaries, and thirty five of the thirty seven state constitutions in effect at the ratification of the Fourteenth Amendment. So that's an example of what looking to those texts means as well. Right has this right been protected for centuries? Was it protected throughout law? Was it deeply rooted in

our history. So this applies some limits, which obviously you would need because, as you say, otherwise, you would have these philosopher kings on the Supreme Court defining liberty however they would like. But this issue of substantive due process does seem to me to be the point where all of the liberals, all of the I shouldn't even say liberals, all of the pro abortion advocates are focusing their fire,

because you even see this in the descent. They're not even so much making a substantive argument for abortion rights rights, quote unquote, as they are saying, if we get rid of this, we're going to have to overrule Griswold, which which finds a constitutional right to contraception. We're going to have to overrule Lawrence fee Texas, which finds constitutional right

to homosexual sodomy. We're going to have to overrule a Berghafel which finds a redefinition of marriage to include same sex unions, all of which rely on substantive due process. And so then this question that the disagreement here between the Court's majority opinion and then Thomas's concurrence, which goes further, this does seem to be the biggest point that the liberals are going to focus on. Well, that's right, and I think it's worth reflecting on what that tells us.

It tells us that even the far left thinks abortion is not a winning issue for it. Like they're not arguing many of them, they're not arguing the substance of this decision because they recognize that the vast majority of Americans favor at least some significant restrictions on abortions, that the positions of the left of unlimited abortion on demand up until the moment of birth, partial birth abortion with no restrictions is a fringe view. Less than nine percent

of Americans support that view. And so smart liberals, which may be oxymoronic, but smart liberals and smart Democrats they don't actually defend their view on this issue because they know it's unpopular. What they say is, well, what this means is all of these other decisions are going to be struck down. And I got to say the majority, and Dabbs says, I think four separate times, No, it doesn't. We're not overruling those opinions. We're not calling question into

those opinions. Those opinions are totally different. Like it at one point, they say, we don't know how we could be any clearer, and the majority opinion points out says, so the ones they focus on, they focus on contraception, and you have two decisions, Griswald and Eisenstatt. Griswald was a right to access contraceptives for married couples. Eisenstatt was a right to access contraceptives for single people. They also focus on Loving versus Virginia, which it was a right

to marry regardless of race, so interracial marriage. And then they focus on Lawrence the right to homosexual sodomy and consensual sexual acts between adults, and then berger Fell gay marriage. And what the court says repeatedly is, look, those are all completely different decisions. Why because none of them involve ending a human life. Abortion is fundamentally different. Ending a human life is a big deal, even rowe called it

potential life. And so repeated the majority goes jumps up and down and says, we are not calling into question these decisions. This has nothing do with it. The left keeps saying, oh, but these other issues, I think they're telegraphing. Listen, if you had a referendum on should we ban contraceptives in America, nobody would vote for I mean, Michael, you might, but the rest of us would. The rest I don't think there's a majority for it. That's certainly the case.

And it also I've talked to friends of mine who are gay, for instance, and who support gay marriage. You know if they if they went out to vote, they would vote to redefine marriage to include same sex unions. And many of my gay conservative friends will say, yeah, all of that notwithstanding, Oh, Berghafell is a crap decision by the Court that the Court actually it doesn't make

a ton of sense. And So while I support this issue and I support it in the legislature, and I would vote for people who are going to vote for this kind of thing, I don't think that's the role for the Supreme Court. So one can be in favor of all sorts of outcomes of certain Supreme Court cases and still oppose a principle that was made up in the twentieth century that seems bogus from a judicial perspective. Well, that's exactly right. And you talked about so Justice Thomas

wrote a concurrence. He joined the majority in full. So the majority opinion is a majority opinion of the Court, it is binding law. Justice Thomas wrote a concurrence in which he said he would go further and the Court should reconsider. He actually didn't say overrule. He said reconsider all of its substantive due process cases, basically. And he said, for a long time, substantive due process as gobbledygook, and

we ought to reconsider it all. If you look at like he's referred to, let's say, the contraceptives law, so Griswold versus Connecticut was a Connecticut law that restricted the sale of contraceptives. Justice Thomas is referred to that as quote an uncommonly silly law. He's record saying this is a stupid law. I don't support this law, but he says the Constitution doesn't prohibit silly laws. It's up to the voters to get rid of that. I think that

is a right and principled legal distinction. But I also think it speaks volumes that Justice Thomas's concurrence was alone, that the other justices have no interest in going down that road, and the number of times the majority opinion says no, no, no, no, no, And it's worth look. The distinction the majority opinion makes is abortion ends a

human life. But there's another distinction, which is those opinions, unlike Row, Row, created enormous societal divisions, deep long felt people didn't listen to Casey's admonitions of just accept that you're wrong and put it behind you. Millions of people care passionately about this issue. None of these other issues have created that kind of long lasting, multidecorate decade division that there are not. There's a march for life every

year in DC. There's not a march against condoms every year. Yeah, but like the rights at issue have not prompted the kind of massive societal disagreement the way that that that abortion uniquely has. And so points Some commentators will leap on Justice Thomas's concurrence, but I think the chances that the Court goes down that road are zero. And I think even Justice Thomas knows that he's arguing this would

be the most principled way to interpret the Constitution. But I don't think even Justice Thomas thinks that other justices are going to agree with that, or that any of these decisions are going to be revisited. You know, it seemed clear to me reading his concurrence, which I thought was brilliant and marvelous. It seemed clear to me he's writing this for his principal stance and for law students. You know, this is not this is not to persuade

people right now in this moment in American politics. Before we get to the mailbag, I do think we have to touch on the Kavanaugh concurrence and the Roberts concurrence. Roberts basically says, yes, I vote to uphold the pro life law, but command, guys, do we really have to deal with rowe? I really don't want to do this.

Can't we do this at a later date? And then Kavanaugh's concurrence here doesn't seem all that different from the opinion of the Court, but he it seems almost as if that concurrence is taking aim at one of the amicus briefs that was submitted by the Oxford professor John Finnis and by your old professor, Senator Robbie George, which argued that the Supreme Court actually does not need to send the abortion question back to the legislatures. The Supreme

Court can outlaw abortion based on the Fourteenth Amendment. Kavanaugh seems to just spend most of his concurrence rejecting that idea outright, although he doesn't call it out by name. Yeah, look, I think that's right. Let's start with the Roberts concurrence. So Chief Justice Roberts concurs in the judgment. Now, what is concurring in the judgment means it means he agrees with the outcome of the case. And the judgment of the case is whether the decision below is affirmed or reversed.

And in this instance, the judgment was that the Mississippi law banning abortion after fifteen weeks is upheld. Roberts agrees with that. So he concurs in the judgment in the conclusion that that law is valid, but he did not join the majority opinion, and he doesn't agree with the majority opinion. And what he says is, we should just conclude that this law is okay. We should abandon Rowe versus Wade's viability standard, which in Casey they referred to

as the core holding of Rowe. He said, we should abandoned the viability standard. I agree, that doesn't make any sense. They made that up. But we should have a new standard that says, does a woman have a reasonable chance to get an abortion? And if she has a reasonable chance, then it's okay. And you know, I gotta say the majority opinion in Dobbs. It's interesting. One of the things I'm very glad about. Much of the majority opinion is word for word identical to the leak draft. I'm really

glad Justice Alito changed very little. I think it really is a statement from the Court that lawlessness, that leaking an opinion, that rioting that attempted murder is not going to change the operation of our judicial system. And virtually all of that leaked opinion is still in this draft. The main changes he did was responding to the other opinions. So there are passages that are responding to for example,

Chief Justice Roberts, and I think Alito eviscerates. Roberts says, well, gosh, you say you want to do this for Starry decisis, but then you're overruling Row, the core holding of Row. How exactly is that a decision for starry deciss If you're overruling the core holding a Row and the test you're putting out a reasonable chance, He points out, none of the parties advocated for it, none of the Amiki

advocated for it. Roberts is just making this up. And in fact, both sides in this litigation and said, no, you've either got to overturn row or uphold it entirely. Both of them agreed this is the whole enchilada. And he points out, you know, gosh, the Chief Justice has proposed standards, So how is a reasonable chance different from an undue burden or a due burden or an unreasonable stance And this is all just you're just making this crap up. Yeah, And I think Aldo does a very

effective job. Robert's instincts are caution that he wants to proceed incrementally, and I think Aldo makes the case that this has been forty nine years is too long and the opinion is wrong. By the way, I do want to go back to something Aldo said. We were talking about different kinds of liberty, and like if you just said, well, you can say liberty means whatever you want it to mean. He has a quote that I've never heard before, but

it's a very very good one. It's from Abraham Lincoln who says, we all declare for liberty, but in using the same word, we do not all mean the same thing. And he goes on to say, in a well known essay. Isaiah Berlin reported that quote historians of ideas, By the way, that sounds like a cool profession. Historians of ideas had cataloged more than two hundred senses in which the term

had been used. The term liberty, So I just thought that those were very interesting points in Alito's majority opinion. I'm quite confident I can't come up with two hundred senses in which liberty has been used. But then again, I'm not an historian of ideas. I'm not so Look, I think Roberts's opinion was derived from political caution rather than legal fidelity to the Institution. I just don't understand the political caution. I agree with your assessment of his motivations.

My only thought was, if he's seeking to preserve the integrity and credibility of the Supreme Court, wouldn't a six three ruling accomplish that much more likely than this sort of six three ruling on the case, but five to four on the over rule of Row and this gobbledegook concurrence that he presents that says it's going to get rid of this certain viability standard but doesn't really do for I mean to me, it just it seemed to have the opposite political effect of the one he might

have intended. You know, I think that's right, and a couple of things. Number one, I do think it's worth pointing out that the opinion that came out yesterday is almost identical to the opinion you and I predicted the week after the oral argument. If you go back and listen to the Verdict podcast, we told Verdict listener, the decision will be six to three. Roberts will up will support upholding the Mississippi law, but not overturning Row. And we'll try very hard to get someone to join him,

but five justices will stand together and overturn Row. And it's exactly what happened. I think this was evident at the time of the argument. I will say this, I was somewhat surprised after the league. I put the odds that maybe thirty to forty percent. This is just my own kind of internal odds making that Roberts would turn around and join the majority opinion, and it I could have seen. What's interesting is they don't refer to the league,

which I was. I was quite curious if they were going to I could have seen Roberts joining the majority and writing an opinion something to the effect of I had concerns and would not go as far as this majority opinion did in this case. But given the historic and unprecedented leak designed to change the outcome, I believe the best way to protect the Court is to say our opinions will not change based on leaks. I could

see him doing that. He didn't do that, but I thought there was some chance that he might have decided to, and ultimately he did. So that's the Roberts concurrence. Senator, what's your take on the Kavanaugh concurrence. Well, the Kavanaugh concurrence, Justice Kavanaugh joins the majority opinion in full, so he is supporting every word in the majority opinion, and that's

what gives it the force of law. For it to be a majority opinion, five justices have to join it in full, and in fact, the way it becomes a majority opinion typically is the opinion will be circulated to the justices, and each justice that joins will say in writing, I join this opinion, and that is you are essentially adopting all of the words and the majority opinions saying those are my words too. So Alito's opinion. He is speaking for all five justices, and it is as if

they have said exactly those words. Now Kavanaugh's concurrence, he's just speaking for himself, and he adds some additional thoughts. In particular, what he says he says on the question of abortion, the Constitution is therefore neither pro life nor

pro choice. He is defending the proposition that we've explained on this podcast multiple times, which is the consequences of rob being overturned are not that abortion is suddenly illegal everywhere, but rather that it returns to elected legislatures to make the decisions, and different states will make different decisions. But as you note, he takes on an argument advanced by Amiki.

In particular, he says, some amicust briefs argue that the Court today should not only over rule Row and return to a position of judicial neutrality on abortion, but should go further and hold the Constitution outlaws abortion throughout the United States. I respect those who advocate for that position, just as I respect those who argue this Court should hold that the Constitution legalizes pre viability abortion throughout the

United States. But both positions are wrong as a constitutional matter. In my view. The Constitution neither outlaws abortion nor legalizes abortion. That point, I think is clearly where all nine justices are. One of the things Kavanaugh says, and he's right, no justice of this Court has ever advocated that position. So the idea that the Court should prohibit abortion nationally, there's never been a Supreme Court justice advocate that, and kavanon as now on record saying that would be wrong to

do so. The legal argument, there's always been an interesting academic legal argument, and you mentioned the amicus brief from from my old professor, Robbie George. Robbie George amicus, Yes, yeah, indeed. And by the way, amicus is short for amicus curii, which is Latin for friend of the court. And so that amicus brief or amiki, if there are multiple of them, are filed to urge the court to give someone another perspective.

So they are briefs that are separate from the parties, but lots of amiki will file briefs, typically in Supreme Court cases. Robbie George was my thesis advisor at Princeton. He's a brilliant sky he is a brilliant lawyer. And the argument we talked about before the Fourteenth Amendment protects says no States shall deprive any person of life, liberty, or property without due process of law. The argument is pretty straightforward that for an unborn child who is being aborted,

you are being denied life. Your life is taken away from you, and there is no due process of law. You don't have the ability to challenge that in court, you don't have the ability, you don't have notice, you don't have an opportunity to be heard. There's a Supreme Court decision called Caroline Products, and footnote four of it described the equal Protection clause protects what it called discreet

and insular minorities. In other words, if you're small and limited and politically powerless, unable to defend yourself, then equal protection protects you from the majority. And the argument goes, it is difficult to think of a more discreet and insular minority than unborn children, who by definition are not able to speak out and defend themselves, don't have a voice, don't have an ability to engage in the political process, or an ability to engage in the legal process. That's

the argument. I think Justice Kavanaugh is right that there is not a single justice who has ever suggested the Court should adopt it. And I will say, if the Court were to issue such a ruling, just as Justice Alito walked through the over two centuries of our nation's history, at no point has any justice ever intimated such a right, At no point as the Court ever issued such a ruling. A ruling like that would be a dramatic break from our constitutional history. And I think that's one of the

reasons why why Kavanaugh says what he does. So I have an aw concurrence as putting the legal academic debate aside, He's just also making a sort of historical point, which is, if you look throughout our tradition, it's not there. And so I just want to be crystal clear I'm not I'm not with Robbie George and John Finnis. Before before we get to the mail back too, I suppose we have to touch on the liberals in the Descent. I

am not a lawyer. I did not go to Harvard Law School, and yet when I read the Descent, I was not impressed. What little I can make sense of, you know, in these legal arguments, I just thought they weren't really making a whole whole lot of constitutional or legal arguments, and am I being too harsh? You're not. And I think the majority opinion eviscerates the descent, I mean, just just shreds it. The Descent doesn't try to defend

row Row on its own is indefensible. I mean, the reasoning, there's nobody that defends row Um, the reasoning of it, and the defect. The Descent doesn't even really try to defend casey other than to say, start decisis, start decisis, star descisis that that you can overturn it. You know. The majority opinion explicitly addresses uh, star decisis and points

out that, yes, star descisis is very important. But the Court has many, many times overturned precedent and and and there's a two page footnote outlining the many landmark cases that were overturning precedents and and many, if not most, of the biggest cases of the Supreme Court are cases that are overturning precedent. And what the majority says is, on many other occasions, this Court has overruled important constitutional decisions. And they have the two page footnote, and then they

say something that is really powerful. They say, without these decisions overruling precedent American constitutional law as we know it would be unrecognizable and this would be a different country. I think the Majority does a tremendous job of refuting the Descent and in particular taking its task for You don't defend Roe. You can't point to any constitutional provision this comes from. You can't point to any laws before

the late twentieth century that reflected what you said. You can't point to any Supreme Court decisions, you can't point to any judicial decisions. I mean, it just systematically goes through and the Descent has no response to that. The Descent can't say anything other than other than they do what we talked about a few minutes ago. They say, well, gosh, this is gonna undermine contraception, and the Majority says, no, no, no,

it's not. But the Descent can't defend the position on the merits, so they've got to find other issues to press instead. There's one mail bad question that came in thought offered a really interesting perspective, and this is kind of zooming out now from the nitty gritty of the

opinion itself. Questions from Laurel, who asks, do you think the language shift from safe, legal and rare to shout your abortion helped people really wake up and fight against abortion or do you think the left started to shift their narrative once they saw the hostility toward abortion start to become more vocal. I think the cause of the shift of the language is the Democratic Party became radicalized on it that in many ways, today's Democratic Party, on

issue after issue, is captured by their extremes. I do think some of that language probably helped move public opinion. You know, some of the most interesting polling we see is that young people are getting consistently more pro life, and that's different from historically. Look, you think historically young people usually you think of as big being more liberal on issues. That that that that you know, those crazy

youth that's like that. And by the way, our parents said that, and their parents said that, like that's that this is we're dealing with millennia of human development. That that that young people often are more liberal in one sense or the other. But it is mark, It is really striking that that younger voters today are significantly more more pro life than than than my generation, then than jen x Um. And I think the extremes of the Democratic party has certainly played a part. I also think

the advance of scientific knowledge has played a part. Uh seeing a sonogram, Uh, that plays a part. I think. I think the pro life community and the pro life movement was very smart and savvy in in waging a political campaign against extremes. And for example, I think focusing on partial birth abortion was a smart decision because the act was so gruesome that people who were not really closely engaged with the issue not paying attention when they

confronted how gruesome it was. I think that helped change people's minds. No, I totally agree with what you've said, and in particular on the advance of modern medical science. And I think it applies to the language too, which is that ideas have a habit of coming to their logical conclusions. Knowledge has a habit of this, and so when we're talking about the language of safe, legal and rare,

it never made a lot of sense. If the baby is a baby, then it shouldn't be legal, and if the baby is not a baby, then there's no reason why it should be rare, and so there was always an unstable slogan that collapsed into I think it's logical conclusion which is abortion on demand without apology. And it's the same with the advance of science babies and on pregnancy.

The more that we know about this thing, the more people can see it, as you describe, Senator, the more we see, oh yeah, it's it's a baby, and you don't need to have your nose in the philosophy books or the bioethics books to realize that it's a baby and that there's just something wrong about killing that baby. And so, you know, part of it was this natural progression of these ideas. And then of course that comes

with the courage of these justices on the court. Courage is a virtue, it's the prerequisite of all of the other virtues, and they exhibited that. And now we're we're experiencing this truly historic moment, so historic, of course, that we can't leave it. We've we've run late here as usual on the show. But there's so much more to say, which is why people ought to go check out the cloak Room with our friend Liz Wheeler. Liz, what are you going to talk about? Hi, Michael High, Senator, I

really enjoyed this was such a phenomenal episode. Listening to the words of the majority opinion, and particularly actually the concurrence Thomas's opinion. It's like listening to classical music. It's what's good and what's true, and what's beautiful, and what's logical, and it's phenomenal. There is a really interesting aspect of this, though. There have been very few people who have praised Robert's concurrence or Robert's writing where he upholds the finding but

not doesn't want to overturn review it. There is one person, though, Alan Dershowitz, Harvard law professor Alan Dershowitz, says that Roberts is right on this and actually slams the rest of the courts, saying that they engaged in judicial activism. I do, and I think it should never be done under any circumstances. But I do think the Supreme Court should never have had to reach beyond the fifteen weeks. That's what was before the Supreme Court, and everybody on this show seems

to think that fifteen weeks is reasonable. Senator Rubio thinks fifteen weeks. The Europeans think fifteen weeks. Why did the Supreme Court have to jump into this and say we're not going to decide the case be for us, we're gonna ban, We're gonna ban ro versus Wade overrule it and allow states, allow states to be sure, allow states

to abolish abortion completely. That was judicial activism overreaching. And Sean, you oppose judicial activism, you should join me and agree with Justice Roberts that judicial activism was at play here and it was unnecessary. I would take issue with you, sippy case. Okay, So the question is was this judicial activism? Did the justices abandoned judicial restraint? Or is Roberts as nutty as we all think? Is That's what we're going to talk about on Cloakroom. You can join us at

Verdict with Ted Cruise dot com slash Plus. If you use my promo code, which is obviously Cloakroom, you can get your first month free on your annual subscription. That is Verdict with Ted Cruise dot Com slash plus promo code Cloakroom. Leave it to Alan Dershowitz to have the single least popular opinion on this ruling. It sounds very interesting, though. I look forward to ring the episode. You know, we had already taped an episode on another wonderful ruling from

this Supreme Court term. We had already pre taped that the night before this ruling came out, so that that episode is going to be released this coming week, just more to celebrate, and so I will be sitting back listening to this wonderful discussion that will follow this episode, probably with a cigar and maybe a drink to real a toast and celebrate this historic and wonderful turn of events.

I'm Michael Knowles. This is Verdict with Ted Cruz. This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security Pack, a political action committee dedicated to supporting conservative causes, organizations, and candidates across the country. In twenty twenty two, Jobs Freedom and Security Pack plans to donate to conservative candidates running for Congress and helped the Republican Party across the nation