Advisory Opinions - Supreme Court Overturns Roe and Casey

Episode Date: June 25, 2022

The outcome might not have been surprising, but the official release of the Dobbs v. Jackson opinion on Friday was still earth shaking, as it overturned Roe v. Wade and a half-century of precedent on abortion. Sarah and David convened an emergency podcast, diving headfirst into the details of the majority opinion written by Justice Samuel Alito, the concurrences by Justice Clarence Thomas, Justice Brett Kavanaugh, and Chief Justice John Roberts, and the liberal dissent. What does this case mean for us and where do we go from here?   Show Notes: -Dobbs v. Jackson Women’s Health Organization -Sarah in Politico:“What Alito Should Have Written” -David in The Atlantic: “The Pro-Life Movement’s Work Is Just Beginning” Learn more about your ad choices. Visit megaphone.fm/adchoices

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It's poutine mixed with kimchi, maple syrup on halo-halo, Montreal-style bagels eaten in Brandon, manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to an emergency advisory opinions podcast. Wow. I'm David French with Sarah Isker. And of course,

we're talking about Dobbs and nothing but Dobbs today. The opinion is out. I was wrong about what day it would come out. You're wrong about what day it was out. Very wrong. But you were right about it was going to be Alito's opinion and substantially the same. Not just substantially, David. So I did the red line. Remember, I literally,

last night's pod, said that that was the number one thing that I was looking for. I found, this is not a joke, so obviously he responds to the dissent.

He responds to the concurrence from Roberts that we'll get to, and he adds a section on rational basis review about three paragraphs at the end. But in terms of the draft itself and what changed, I found three words. Really? There was no change. The three words did not change the meaning of the sentence at all, really. Wild. Yeah. And in a way, I'm not surprised by that because the reality is there's only so many ways you're going to overrule Roe. I guess, but wouldn't you just... I don't know. When I edit,

I'm a pretty hard editor. I change things a lot. But yep, that is not what happened here. And in some ways, I would say the leak probably did lock in some of that. You know, you have to think to yourself, would I change this? Maybe. Is it worth changing? No. Which is a different editing process that you would go through if people had already read your draft.

The other big thing that I think the leak did is I think this was going to be a 5-1-3 opinion. Right. be a 5-1-3 opinion. It is a 6-3 opinion with Roberts concurring in the judgment. Now, we've seen plenty of those in the past of a justice concurring in the judgment, meaning the final outcome upholding Mississippi's 15-week ban, but not agreeing with the reasoning. I think that we could have seen a concurring in part or dissenting in part version of that. But I think the leak had the effect of making this essentially from a 5-4 to a 6-3 with Robert saying, you're not going to bully my people. Yeah.

That's what. So let's just let's start there with it. Was this 5-1-3 or was this or was this 6-3? was the 6-3. So your interpretation of the Roberts concurrence is, I wouldn't have necessarily overruled Roe and Casey, but that's how I voted. Well, and an interesting distinction he makes is that he says that the majority is treating Roe

as if it has one holding, the right to an abortion. He's saying that Roe actually had two holdings, a viability line and a right to an abortion, and that he would only overturn the viability line. Now, it's important that Casey said that the viability line was the core of Roe's holding. And he addresses that. And he's like, just because they said it doesn't make it true. So he divides Roe into two parts, overrules one part of Roe and not the other. It's interesting because I was asked before whether, in fact, this was a 5-4 decision to overturn row, you know, a 6-3 decision on Mississippi. And my answer to that is, well, actually, like a lot of things with the

Supreme Court, that's kind of nuanced. Roberts did vote to overturn row in part. He wanted to overturn the viability line. I don't know. Should we dive into all of the pieces of this? So we have the Alito majority. We have a Thomas concurrence. Which is, wow. Okay. I thought the Thomas concurrence was going to be the 14th Amendment actually protects life. No. No, No, no, no, no. We'll hold that. Let's just hold that as a nugget. You have a Kavanaugh concurrence that I will lovingly title from,

what's the movie with Tom Hanks? The Somali pirate ship movie, Captain Phillips. Yes, Captain Phillips. Basically, an extended Captain Phillips line. I'm the captain now. I'm the median justice now. And then you have this Roberts concurrence that again is almost more of a concurrent part dissent in part. And then there's the dissent, a joint dissent by justices Breyer, Sotomayor, and Hagan. Well-written, smart. It's exactly what you're expecting from three people

who knew they were going to lose this. But we'll get to that. So let's start with the majority opinion. And we don't need to actually spend a whole lot of time on this because we spend a ton of time on the draft. And the draft is basically the majority opinion. But I don't want to just sort of make you go back and listen to the whole thing where we talked about it. if you make you go back and listen to the whole thing where we talked about it, let's just, the basic, the sort of the fundamental reasoning goes like this, which is, look, there is not an enumerated right to an abortion, but just because there is not an enumerated right does not mean

that the right doesn't exist. The Constitution allows for, if you're going to talk about text history and tradition like we did yesterday in the New York State Rifle and Pistol case, text history and tradition allows for unenumerated rights. So we know it's not enumerated. Is it unenumerated? And what Alito says is, well, if an unenumerated right is not just whatever right you want and you can persuade the court exists, an unenumerated right is not just whatever right you want and you can persuade the court exists, an unenumerated right, if you're going to use the substantive due process analysis, has to be part of a broader entrenched right, or it's got to be something that is rooted in the tradition of the United States, the legal tradition of the United States at the time

of the passage of the relevant amendment. And what he's basically saying here in the 14th Amendment, and then what he says is, look, there was no conception that abortion is a deeply rooted American right. In fact, abortion, there was a long history of democratic regulation and even prohibition of abortion, even dating back to the mid-19th century. And so, what you're talking about here is truly, when you're talking about the right to abortion in Roe, is something that was not rooted in history and tradition. It was created by the court functionally in 1973. So therefore, it's an illegitimate judicial creation and is therefore struck down. It's not enumerated.

There's no history that it would be considered an unenumerated right in American legal tradition. It was an invented right in 1973, and it goes away. Fair enough? I think that's pretty fair. You know, I talked about what was added aside from responding to the dissent and concurrence, interestingly, only responding to the Roberts concurrence, which he says from here forth will be the concurrence. Okay. The rational basis section.

So this is at the very end. That is interesting that this wasn't included in the draft opinion, but added after. So under our precedence, rational basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such right has no basis in the constitution's text or in our nation's history. You know, it follows states can do this on a rational basis, meaning if they have any legitimate interest, that respect for a legislature's judgment applies even when the law at issue concerns a matter of great social significance. He cites Gluckberg, the assisted suicide case for that as a rational basis case. A law regulating abortion like other health and

welfare law is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on what the legislature could have thought it would serve a legitimate state interest. Then says, obviously, there's a legitimate state interest in Mississippi's Gestational Age Act. And then it goes, we end this opinion where we we began and that's literally the last paragraph of the opinion uh and then he still has the appendices which is what makes it so long it's 79 pages on its own uh and again what that initial one was 63 or so so not that much added even to respond to the dissent and concurrences um you know clearly he wanted to make sure that we understood we're going to have no discussions

on, for instance, the Thomas, we're getting rid of tiers of scrutiny. It's now just history and tradition from the gun case. Nope. That seems to be a Second Amendment special, maybe a Thomas special. We'll get to the Thomas concurrence in a minute. He's like, no, no, no, we're keeping tiers of scrutiny. This is rational basis. And if you described it, David, rational basis means the state wins. Based on the Kavanaugh, I'm the captain now concurrence. I'm not totally sure that all laws could pass state muster. And in fact, Kavanaugh mentioned some specific laws that would not pass that test. So, but it's, I mean, it actually is, I think, helpful that Alito added that because otherwise you are left saying, okay, well, how are we even determining these future laws? They're just all legal no matter what. Nope. Okay. Rational basis. Got it.

no matter what. Nope. Okay. Rational basis. Got it. Yeah. Um, Thomas. Okay. This is where things get a little more exciting. Um, let me just read you the part. This is the money line for that reason. In future cases, we should reconsider all of this court's substantive due process precedents, including Griswold, remember that's right to contraception, Lawrence, that's the criminalizing of homosexual behavior, and Obergefell, same-sex marriage. Okay. Now, the Alito majority, I want to read now, it didn't change, remember, but I want to read it again anyway. But we have stated unequivocally that nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized

in those other cases or by appeals to a broader right to autonomy. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores. Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider, like reliance and workability, are different for these cases than for our abortion jurisprudence. Very smart for him to mention those two, of course, because when you think of Obergefell reliance interest, millions upon millions of people married, started families believing they could get married because the Supreme Court said so. Workability,

no one's had a problem figuring out how you do marriage at the state level between two men or two women. Now, Brett Kavanaugh in his concurrence also responds to that Justice Thomas line. I emphasize what the court today states. Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents. Wait, what? Like one justice didn't just cast doubt. He said he would vote to overrule them. And you're saying that nothing here cast doubt. That to me is the line where he's like, yeah. And you know why it doesn't cast doubt? Because I'm vote number five. Yeah. Well, and what Thomas, I think, is also because he's concurring, he's basically saying, wait, Alito's not casting doubt, but I am.

And not just doubt, I'm saying all now, to be fair to Justice Thomas, he's not saying that cases, all of those cases would ultimately come out differently. What he's saying is that you cannot locate the underlying right in substantive due process. He is saying that substantive due process is not a thing. That due process is a process. That's like, do I have a right to cross-examination? Do I have a right to a hearing? Do I have a right to see the evidence against me? Do I have a right to counsel? And when this 14th Amendment is saying you can't be deprived of life, liberty, and property without due process of law, what it's simply saying is all of these things that I believe to be a liberty or I believe to be a property interest or a life interest, they're just subject to a state process before they can be deprived.

And the substantive due process thing is not a thing that's just judicially made up and it doesn't exist. Therefore, if you're going to locate a right to same-sex marriage or contraception, or if you're going to find it in the Constitution, it has to be in a different provision than the 14th Amendment Due Process Clause. He throws out privileges and immunities. He does throw out privileges and immunities, which is something that Thomas has talked about before. He does throw that out. But... But there's no way he thinks, for instance,

gay marriage is found in privileges or immunities because he dissented the only cases that we can really even think about are the ones where he wasn't already on the court he's on the court for Lawrence he's on the court for Obergefell Griswold fine let me read a portion of his

substantive due process part which again I find persuasive in the sense that substantive due process is, which again, I find persuasive in the sense that substantive due process is insane. It like makes no sense when you try to explain it to a lay person. They're like, I don't get it. What is substantive due process? So here's Justice Thomas. As I have previously explained, substantive due process is an oxymoron that lacks any basis in the Constitution. Yeah, fair. The notion to process. Yes, I get what you say. The notion that a constitutional provision that guarantees only process before a person is deprived of life, liberty or property could define the substance of those rights strains

cajolity for even the most casual user of words. The resolution of this case is thus straightforward because the due process clause does not secure any substantive rights, is does not secure a right to abortion. He goes on, by the way, to say the court today declines to disturb substantive due process jurisprudence generally or the doctrine's application in other specific contexts. Cases like Griswold, Lawrence, specific context. Cases like Griswold, Lawrence, Obergefell, the court's abortion cases are unique. But he says, but how can you say the substantive due process doesn't work in Dobbs and then say it's still working in those cases? Here you have Thomas at his best in terms of his most consistent. He's right. This was my beef with the Alito draft. How can you say on the one hand that I'm going back and looking at the full history of abortion jurisprudence and law

and culture for a thousand years, basically, but also we're definitely not going to do that for these other cases. Now, again, I'm so glad he added the response to the dissent about, yes, but the stare decisis analysis would be different because that's the true difference. Alito's still, of course, making the point that he made in the draft about there's a difference because this one involves a potential life. I just find that to be still,

I mean, nothing's changed, totally unpersuasive as an actual distinction on why you can use substantive due process in Obergefell when, again, Alito didn't think so seven years ago. Right. Because Obergefell doesn't involve a potential life, we can use substantive due process instead of history and tradition? That makes no sense. Again, as I wrote in Politico of what Alito should have written, it should have all been about stare decisis, not about this trying to distinguish through the potential life aspect. That may be why it's more important to Justice Alito, but it has no legal distinction to me.

Yeah, I'm actually interested in this question, Sarah. Why write this concurrence? For Justice Thomas? Well, he's nearing the end of his career. He has written repeatedly about substantive due process being bonkers town.

He's written repeatedly about privileges and immunities. However, it is hard for me to read this as anything other than a little bit angry. And that might be the wrong word because I actually think Justice Thomas is a very joyful warrior.

Jovial person, yeah. So I don't mean it in the way that maybe it sounds. I mean more sort of indignation about what the court has been put through in the last two months. By the way, worth noting, there is not a single reference to what has been going on,

to the draft opinion, to the assassination attempt on Justice Kavanaugh's life. Nothing. And so, you know, it's like, well, if I didn't know about all of that, but I still read in some indignation to this Justice Thomas concurrence,

hard to say. But to your point about like, you don't need to do this right now, like isn't this strained and heightened and passion enough? Well, yeah, unless you're like, oh, you didn't want me to do that? Okay, well, I'm going to tell you

exactly what I think about all of this. You're worried this will touch Obergefell? Well, I think it should. Yeah. Because the interesting thing about this is Justice Thomas could deliver a speech. He could write a Law Review article. You know, he could do any number of things.

There's nothing that requires him to lay out there that these, in his mind, these precedents should be up for grabs. Now, in some ways, savvy court observers are going to know this already. I mean, has Justice Thomas cast out unsubstantiated due process before? Yes, absolutely. Or maybe he just says, wait a minute, I think Alito gave away too much there and I don't want people to think that I've signed on to giving away too much. But on the other hand,

I do wonder about the decision to add this. But I also think it might have spurred the Kavanaugh, been part of the Kavanaugh concurrence sort of calculus as well, to sort of say, whoa, wait, hold on. It'd be interesting to know what order those were circulated in. Yeah, that would be interesting. Thomas or Kavanaugh. There's an interesting, so people have noted, by the way, in that list

of Griswold, Lawrence, and Obergefell that Loving v. Virginia, that's the interracial marriage case, isn't on the list. Well, it is interesting because Loving v. Virginia does mention substantive due process or its equivalent, but it is so much more firmly based in the Equal Protection Clause. I think putting loving on the list would have been bizarre just from a legal standpoint. Of course, as other people are more inclined to point out, they're saying that Justice Thomas is threatening rights of others, but not his own marriage, because he, of course, has a marriage that is protected by Loving v. Virginia. Again, I'm not that persuaded by that.

Equal protection does the vast, vast majority of the lifting and would be totally on its own the place to find that right. But he has this footnote. Griswold v. Connecticut purported not to rely on the due process clause, but rather reasoned, this is a famous Supreme Court quote, warning, warning, quote, that specific guarantees in the Bill of Rights, including rights enumerated in the first, third, fourth, fifth, and ninth amendments,

have penumbras formed by emanations that create zones of privacy. He says, since Griswold, the court, perhaps recognizing the facial absurdity of Griswold's penumbral argument, has characterized the decision as one rooted in substantive due process. My question to you, David, is did you also only learn of the word penumbra and emanation from that Supreme Court opinion when you first heard of it? word penumbra and emanation from that Supreme Court opinion when you first heard of it? No, I knew about penumbras from like solar, you know, from science class. Really? Yeah. I think, I mean, emanations, I guess I knew like, oh, that is emanating from the room over there. But I just remember hearing for the first time the penumbras formed by emanations and being like, what are these words? Yeah. Now, I mean, I'm going to betray here.

I'm going to I'm going to do live Googling to try to remember like 10th grade science. Isn't it a solar phenomenon? Are you thinking of the corona of the sun? Penumbra in astronomy is the outer part of a conical shadow cast by a celestial body where the light from the sun is partially blocked. As opposed to the umbra, the shadow's darkest central part where the light is totally excluded. Okay. I think the legal application of that is totally clear. Obviously.

As Justice Thomas recognized, of course. Yeah. So it's part of the phenomenon of an eclipse. So if you have the sun and the earth,

where that part of there's a part of lighter of shadow on either side of the spot of darkest shade. So here's a chart. We'll include this in the show notes. Okay, so the chart is very clear that, yeah,

the penumbra is darkened light. Yes, darkened light. So how that applies, a penumbra from a, that's kind of weird. Well, yeah, the light is emanating from those amendments. And this is the penumbra.

It is a darkened light from those amendments because the light would be the text. Ah, so the penumbra is the thing that only the judge can see through. That's right. Okay. It's the shadowy. Got it. Not text. Ah, so the penumbra is the thing that only the judge can see through. That's right. Okay. It's the shadowy. Got it. Not text. So Sarah, let me ask you this before we get to the dissent. Whoa, whoa, whoa. We have so many more concurrences to go through. Oh, I'm sorry. Okay. Whoa, whoa, whoa. We're just getting through Justice Thomas. All right. I'm sorry. By the way, before we go, I thought this was from Justice thomas i mean um you know we have talked i have written

a lot about how the pro-life movement and conservative legal scholars really see overturning roe as the legacy of plessy. Not Justice Thomas. Very interestingly, Justice Thomas sees it as the legacy of Dred Scott, which was a really fascinating read, actually. So I want to read you what he said. Third, substantive due process is often wielded to disastrous ends.

The court, sorry, for instance, in Dred Scott, 1857, the court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. While Dred Scott was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, that overruling was purchased at the price of immeasurable human suffering. Now today, the court rightly overrules Roe and Casey, two of the court's most notoriously incorrect substantive due process decisions.

The harm caused by this court's forays into substantive due process remains immeasurable. Comparing the losses on the battlefield in the Civil War that was needed to overturn Dred Scott to the losses in the 50 years of Roe. I mean, that is a strong statement and analogy I had not ever heard before. Yeah. Yeah. That is interesting. I've heard that analogy before, but to see it in a Supreme Court opinion overturning Roe is not something that I thought I would see in my lifetime, to be honest. with a spicy history. Thornton Prince was a ladies' man.

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Kavanaugh? A lot of words. I get this is hard. I respect both sides of this, but the Constitution is neutral on the issue of abortion. This court also

must be scrupulously neutral. The nine unelected members of this court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or pro-choice abortion policy for all 330 million people in the United States. Talks about some of the amici. To be clear then,

the court's decision today does not outlaw, that is in italics, abortion throughout the United States, and says today's decision does not prevent the numerous states that readily allow abortion from continuing to readily allow abortion. This, of course, a concern that, for instance, what if Congress, under Republican control and a Republican president passes a law that says that you cannot ship abortifacients over state lines. Something to that effect. He doesn't really speak to that. On the other hand, he does speak to the travel question. He says, for example, may a state bar a resident of that state from traveling to another

state to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel. May a state retroactively impose liability or punishment for an abortion that occurred before today's decision takes effect? In my view, the answer is no, based on the due process clause or the ex post facto clause. Normally, I would say in a concurrence, well, that's one vote. But in this case, again, really Justice Kavanaugh making clear, it's not one vote, it's the fifth vote. Don't try it. Right, right, exactly.

So as I read Kavanaugh, I read Kavanaugh in much the same way that I read Kavanaugh and Roberts in Kavanaugh in much the same way that I read Kavanaugh and Roberts in the Bruin case. Very similar. Yeah. Hold your horses, everybody. This is where I'm articulating how limited this is. And it sounds weird to say that overturning Roe is limited, but he's very clear in articulating and the way he ends this, in my judgment on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this court likewise must be scrupulously neutral. The court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to

the people and their elected representatives in the democratic process. Now, interesting he does not say returns the abortion to the people and their elected representatives in the states. It's true. So there is going to be a federal role, and we're going to probably see various attempts to legislate limits or protections for abortion rights through Congress. Gosh, I have questions I want to ask you, but we have to wait until we get through all of the concurrences.

Okay, one last note on Kavanaugh. He, of course, at the top addresses whether the Constitution says anything about abortion. He says, no, it says it's neutral. And he says, but the difficult question is stare decisis, whether we overrule a case that has been decided. Then he goes through the stare decisis factors he says, but the difficult question is stare decisis, whether we overrule a case that has been decided. Then he goes through the stare decisis factors and says, yes, you can overrule a case that every member of this court has voted to overrule a past precedent. It says the last 40 years, every member of the court, yada, yada. And then he says, but the really hard question

is what to do about Casey, because it's not just a precedent. It's a precedent that has been upheld by another precedent, double precedent, super precedent. He says that makes it really hard. The stare decisis analysis here is somewhat more complicated because of Casey. I have deep and unyielding respect for the justices who wrote the Casey plurality, his justice, Justice Kennedy. And I respect the pluralities good faith effort to locate some middle ground or compromise that could resolve this controversy for America, but has become increasingly evident over time. Casey's well-intentioned effort did not resolve the abortion debate. And so he says it's not enough. In sum, I agree with the court's application today of the

principles of stare decisis and its conclusion that Roe v. overturned. This is the most Kavanaugh opinion ever. I would say the gun case is the second most Kavanaugh opinion ever. It reminds me of some of the opinions we were seeing in the pandemic. Right, right. And interestingly, it reminds me of Kennedy in a way. Very, well, very Kennedy. It really is the next generation Kennedy. Yeah. A Kennedy more rooted than who grew up in the conservative legal tradition. This is like reading, I don't know, like Kennedy's son, you're like Steve Irwin's son is now out there doing animal stuff at the Australia Zoo. It's like a next generation. He's different. He's doing it on TikTok. He's less about sticking his head in alligators' mouths, crocodiles' mouths. But he's his father's son. This is a little bit Justice Kavanaugh's,

again, a more conservatively, ideologically grounded Justice Kennedy. But the language is Kennedy. To be sure, many Americans will disagree with the court's decision today. That would be true no matter how the court decided this case. Both sides on the abortion issue believe sincerely and passionately in the rightness of their cause, especially in those difficult and fraught circumstances. The court must scrupulously adhere to the Constitution's neutral position. Well, and, you know, that reminds me very much of some of the passages in Obergefell where Justice Kennedy goes out of his way to say that there's people of goodwill on both sides.

And this imply it implicates deeply held religious and other opinions. And there's sort of this can we please try to get along element of it and stop inferring bad faith on the part of people you disagree with. So after he sort of respects and genuflects to the people on both sides of the debate, he says since 1973, more than 20 justices have now grappled with the divisive issue of abortion. I greatly respect all of the justices past and present who have done so amidst. And this, by the way, the only even potential nod to what's been going on. the way, the only even potential nod to what's been going on. Amidst extraordinary controversy and challenges, all of them have addressed the abortion issue in good faith after careful deliberation and based on their sincere understanding of the Constitution and of precedent. I have endeavored to do the same. Yeah. Well said. Well said. He's a beautiful writer. At this point, it goes without saying. All right. That leads us to the Roberts concurring in the judgment.

Yes. Roberts trying to find a middle ground. So as we discussed at the top, saying, we could have decided this only on the Mississippi 15-week ban, get rid of the viability test and simply ask if there's a constitutional right to an abortion recognized in Roe, did you have a reasonable opportunity to exercise that right? 15 weeks is plenty of time. Look internationally, just look at common sense. The viability line is what's causing all these problems. And it's unworkable. It's proven unworkable. And it's irrelevant to the right to an abortion. And his case on how irrelevant it is, he was making that during the oral argument. I hadn't ever considered it. Is

that weird? I never thought about it because viability to me, I'm like, well, yeah. But then I thought, yes, but it would be totally relevant if at the point of viability, we let the woman give birth to the child so that she is no longer pregnant. That would make viability a really important line. But we don't do that. You don't get to give birth to a 24-week old baby to induce labor. We make you carry that baby to term if abortion is illegal after viability in your state. So yeah, actually, legally, that is totally irrelevant. He, sorry, Justice Alito responds to his concurrence, not, by the way, to Thomas or Kavanaugh's little asides. He says, Alito here,

when the specific approach advanced by the concurrence was broached at oral argument, He says, Alito here, viability. The Solicitor General argued that abandoning the viability line would leave courts and others with no continued guidance. The concurrence would do exactly what it criticized Roe for doing, pulling out of thin air a test that no party or amicus asked the court to adopt. That felt a little harsh. Of course, neither side wanted that middle ground. They both wanted to win. Yeah, exactly. Outright. But Alito, I thought, was even more persuasive as he made the very practical case that it simply was going to punt the ball. Fine, you uphold Mississippi's 15-week ban under this reasonable opportunity. Because yeah, 15 weeks is a reasonable opportunity. What about eight weeks? Is that reasonable? Because you're going to have to decide that

next term. And it's interesting to me because in every other part of the court's jurisprudence, the answer to that question would be absolutely. That's what we do. We decide only the question in front of us. And then we let versions of that future question percolate in the circuits, have very smart other judges write their opinion, do that historical analysis, get all these brains together. And then we look at it a few years later. But Alito basically saying again, yep, and that's a good way to do this most of the time. But at this point, the court has to get out of this now. Right, right.

And what's, you know, one thing that with Roberts, when you're talking about when he talks about viability isn't really this rational line, it still completely leaves open, well, what is the line? Which he says we don't decide. We only decide the 15-week line. That's our only job today. That's our only job. But there has to be a reason why you're, and I guess if you're saying, well, viability isn't rational, and so the 15-week line is fine because?

Reasonable opportunity. Reasonable opportunity. But what about if a specific woman only found out she was pregnant at 16 weeks? So she, her specifically, did not have a reasonable opportunity. But what, I mean, does that, how does that factor? There's a lot of those what ifs. What Jalito points out. But what I mean, does that how does that factor? There's a lot of those. Right. What ifs? Well, and what I think Alito points out, I think his opinion demonstrates how hard the middle ground was because, you know, one of the fundamental criticisms of Roe was, hey,

all this was made up. And then you go to Casey. Well, to the extent that you changed Roe through Casey, you just made something else up, this undue burden standard. And then the critique of, look, if you uphold Roe and Casey, well, you've got a reason why, stare decisis. If you reverse Roe and Casey, you've got a reason why because you say Roe and Casey didn't rest on a firm constitutional foundation anyway. If you create, here's Roe 3.0, what you've got is another made-up standard. So it's not really stare decisis because you've departed from Roe and Casey,

and it's not repudiation of the underlying reasoning. It's just, here goes made-up standard 3.0. Here's judicial supremacy 3.0. Just because, and why? I get it. I get it because it's really tense in this country and things are really difficult right now. And there's going to be sort of a volcanic reaction to this decision. I totally get it, but that's not, that's kind of tough to say that's what the judge's role is here. I don't know, but it is what they do in every other. You decide only the issue in front of you.

That's judicial humility. That's the Berkey and minimalism that conservatives purport to believe should apply in cases, big or small. Rod Rosenstein, I will tell you, he said this thing to me at DOJ one time that has just rattled around in my brain since. And he says, because especially during the Russia investigation, there were constantly calls of, well, that might be DOJ's practice most of the time,

but this should be the exception. This is too unique. This is too big. He said, you don't have practice and policy for the easy cases. You have them for the things that you feel are so crazy and unique. And so like, yeah, I know this feels crazy, but isn't that what Burkean minimalism is for? And the court, so let me just read from Roberts real quick. The court's decision to overrule Roe and Casey is a serious jolt to the legal system, regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly

less unsettling. Nothing more is needed to decide this case. And then he says, in support of its holding, the court cites three seminal constitutional decisions that involved overruling prior precedent. Brown v. Board of Education, which of course is overruling pluses separate but equal. West Virginia State Board of Education versus Barnett. This is the free speech, First Amendment rights of students being forced to salute the flag or say the Pledge of Allegiance. And West Coast Hotel versus Parish upholding the constitutionality of state minimum wage legislation. He says the opinion of Brown was unanimous and 11 pages long. This one is neither. I don't know why that's relevant.

But fair enough. This is going to stretch just over 200 pages. Barnett was decided only three years after the decision it overruled, three justices having second thoughts. Again, not totally sure why that's relevant. And West Coast Hotel was issued against a backdrop of unprecedented economic despair that focused attention on the fundamental flaws of existing precedent. Well, isn't that actually pretty, I think they would argue, similar to this? It was also part of a sea change in this court's interpretation of the Constitution,

signaling the demise of an entire line of important precedent. Justice Thomas certainly is like, yeah, that's, uh-huh, I like that. So look, I mean, again, the Chief Justice, when he got confirmed, said that two things were going to sort of be his lodestars. Can you have two lodestars? You can now. Yeah. two things were going to sort of be his lodestars. Can you have two lodestars? You can now. Yeah. One, having as many unanimous opinions or large majorities as possible and related as narrow as possible, because that's what gets you the unanimous or as large majority as you can. Here he is toiling away. Nobody wants to join him. So I think the issue I have here, and I'm trying to

put my finger on the issue because in a lot of other contexts, you know, look, for example, the Fulton decision we talked about last term, this 9-0 decision that was super narrow for this Catholic social services in Philadelphia that even Justice Sotomayor joined. And the court expressly declined to overrule Employment Division v. Smith. And do I want Employment Division v. Smith overturned? Yes, I do. Was I mad at the court for not overturning employment? I mean, was I terribly mad about the court not doing it? Not really. But I think the thing that I keep getting stuck on here is what is the source of continuing the abortion right? What is the reasoning behind it? And if it's just,

what is the reasoning behind it? What is, and if it's just, look, it's been around for a while and it's stare decisis, and, but you can chip away at it. I mean, I get, I get it, but I think that what Alito is essentially saying is, look, this thing was just made up. This, this was,

this was totally made up constitutional law here. And how stabilizing are you if you keep part of it by making up something else? And I get the argument that it's stabilizing to some extent, but I also know, and this is something that I think a lot of people don't fully comprehend, this was going to earthquake either way. It's earthquaking the left that Roe is gone. I shudder to think some of the reactions on the right, if you have a 6-3 Republican majority

and they had upheld Roe under a new, a new made-up constitutional doctrine, that would have been earthquake-y. I just don't think there was a non-earthquake option here. I disagree. I think this is, again, it was absolutely an option. The only question before the court was whether Mississippi's 15 week ban was constitutional. Right. That was the cert grant. They didn't need to get to Roe and Casey unless I mean, unless they reject the chief justice's approach, which they do, in fairness. They say that the the reasonable opportunity thing is totally made up and also a constitutional fine. the reasonable opportunity thing is totally made up and also a constitutional fine.

But the chief justice, again, I think is following that correct conservative ideology of the Berkey and minimalism. If he believes that you don't need to get to row, then the only reason to get to row is the practical problem of the court continually getting dragged into abortion and it lowering the court's approval rating and Gallup polls. And as you said, that the right would have been really pissed instead of the left being really pissed and that we might as well rip the bandaid off and just make one side really pissed off. Because if the chief had gotten a majority for this opinion, obviously the right would have been angry that Roe wasn't overturned and the left would have been angry that Roe was clearly on the chopping block next. It's like the first step, you know. Absolutely.

As we, you know, have seen repeatedly. Dead man walking, yeah. But I don't know. I just think Roe is so inherently unstable. Inherent because it was so thoroughly concocted that it's difficult to apply a conventional incrementalist approach to it's like my, I want to get this tattooed somewhere. I have no tattoos, listeners. No time like the present.

It would be a long tattoo. Both the court's opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after 15 weeks. A thoughtful member of this court once counseled that the difficulty of a question, quote, admonishes us to observe the wise limitations of our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case. And then says, I would therefore only decide on the Mississippi thing. I just love that. They display a relentless freedom from doubt.

I think that is my beef with the Alito majority and the Thomas opinion yesterday on guns. with the Alito majority and the Thomas opinion yesterday on guns. The relentless freedom from doubt when so many people in the history of the Supreme Court, justices who were brilliant people getting questioned that wrong, according to history's eyes, just wrong, real wrong, that for you to then sit there as one of the nine and say, ah, but I am infallible. sit there as one of the nine and say, ah, but I am infallible. So I feel the chief justice on that. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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Use code ADVISORY at checkout to save. Terms and conditions apply. I'm curious your thoughts on the dissent. There was one line that stood out to me more than any other, because for the most part, the dissent's exactly what you think it is. It's incredibly well-written case from a group of three people who knew they were going to lose this. But there's this one line that I was like, what? It says, so too after today's ruling, some states may compel women to carry to term a fetus with severe physical anomalies. For example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth. example, one afflicted with Tay-Sachs disease, sure to die within a few years of birth.

Well, are you saying that because you'll only live for a few years that you don't, like you would otherwise have a personhood, right? If you were going to live a full expected life expectancy. But if for instance, we knew that a baby was going to drown in a well at two years old, that that would mean you could abort the baby before it was born. That's a weird thing to say. It'd be one thing. And it actually, I think is a little different to me. If you're saying the fetus is incompatible with life outside the womb. And there are absolutely many, by the way, medical conditions, many, by the way, medical conditions which you can continue carrying the fetus, but

they'll live for, they basically will not live outside the womb at all. But to say they'll only live for a few years is a weird way to think about this. Yeah. That is a weird way to think about this. Oh, and by the way,

I've been saying kagan as it like it's all three it's justice briar justice sotomayor and justice kagan right and i look it reads kagany to me as well so and there's this provision in here i want our provision this paragraph in here that i want to talk about because it is one of the best short summaries of a progressive view of constitutional jurisprudence that I've read, because we get a whole lot of listeners who are mainly originalist or textualist in their view, and they want to know more about what is the progressive view of constitutional rights and how you interpret the Constitution. Let me read this paragraph. The answer is that

this court has rejected the majority's pinched view of how to read our Constitution. The founders, we recently wrote, knew they were writing a document designed to apply to ever-changing circumstances over centuries. Or in the words of the great Chief Justice John Marshall, our Constitution is intended to endure for ages to come and must adapt itself to a future seen dimly, if at all. That is indeed why our Constitution is written as it is. The framers, both in 1788 and 1868, understood that the world changes, so they did not define rights by reference to the specific practices existing at the time. Instead, the framers defined rights in general terms to permit future evolution in their scope and meaning.

And over the course of our history, this court has taken up the framers' invitation. It has kept true to the framers' principles by applying them in new ways responsive to new societal understandings and conditions. And then she, I keep doing it, they then go on to say, nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the 14th Amendment, the guarantees of liberty and equality for all. And nowhere has that approach produced prouder moments. So essentially what they're saying is the Constitution articulates a series of general

principles. And the general principles are going to, your meaning and your understanding of what these general principles mean is going to evolve over time. And that the Constitution was intended to evolve in some ways because the rights that were expressed were expressed in general terms. So the expression in general terms does not lend itself to very specific, narrow readings. And so I think, look, if you want to know how progressives both honor the words of the Constitution and believe in evolving meanings of the Constitution, that's your paragraph right there.

Yeah, and you know, it's funny. I think they truly probably did draft portions of this together. And so this is actually all three writing at various points. But there's certainly some Breyer-esque moments in here. The word balance appears a dozen times in this dissent. And boy, is that a briar word. And at one point, they even talk about this word balance. The majority scoffs at the idea castigating us for repeatedly praising the, quote, balance the two cases arrived at with the word balance in scare quotes. To the majority,

balance is a dirty word as moderation is a foreign concept. The majority would allow states to ban abortion from conception onward because it does not think forced childbirth at all implicates women's rights to equal equality and freedom. Today's court, that is, does not think there is anything of constitutional significance attached to a woman's control of her own body and the path of her life. And then repeatedly talks about the court striking a balance. The constitutional regime we have lived in for the last 50 years recognized competing interests and sought a balance between them. The constitutional regime we enter today erases the woman's interest and recognizes only the state's parentheses or the federal federal governments. You know, what's interesting about this view, if I'm answering, if I'm trying to answer the dissent on its own terms, and even if I'm saying,

okay, I want to grant you, and I think it's actually quite true that the Supreme Court speaks of rights in sometimes pretty general terms, especially the 14th Amendment, equal protection of laws, privileges, or immunities. Even the First Amendment, Congress shall make no law abridging the freedom of speech. That's phrasing free speech in some pretty general terms. And so I get it. I absolutely get it. One of my key questions here is, what is the source, and even if you're phrasing in general terms, of the right to terminate another life? And that's where this abortion question gets so, in my view, irreconcilable with the idea that the core issue here is that there's not in the

core dispute here. And this is why the Alito history is important is that, no, we're not just talking about the woman as the only life that is relevant to be considered here. And if you're going to say that the woman's sort of life and health and well-being and autonomy is the only thing that's considered here, what's the source of that? There's got to be a source of that. I can get the argument that as a political matter, if I'm making a moral argument and as a legislature you're trying to draft laws, If I'm making a moral argument as a legislature, you're trying to draft laws. I totally get the argument from a legislative matter, but the constitutional source of that, that's what I just keep getting hung up on. Where's the right to travel?

Well, you know, that's if you're talking about a historical, again, you go going back to the Alito analysis. But then it's just how broad you do it. Fine. There was a right to travel historically. There was not a right to have an abortion procedure in 1791 or 1868. I think that's pretty clear. And in fact, they were prohibited. Fine.

But that's one level of generality. What about a higher level of generality? A right to get medical attention, a right to have autonomy over your own body. You define the level of generality and then you look at that history. And that's the problem with the historical, one of the problems with the history and tradition. Yes, if you ask about abortion, that's the case. But we saw it, and maybe it'll be more clear if I use marriage. If you say, did you have the right to marry someone of the same sex in 1791 or in 1868? No. But if you say, did you have the right to marry who you wanted? Yes.

Mostly. the right to marry who you wanted? Yes. Mostly. Well, yeah. Fair. But you see, like, the level of generality can really matter to that historical analysis. But, you know, even on going to, say, for example, marriage law, I think you had a lot better argument under equal protection, which does articulate a regime of legal equality that was, for example, much more potent in argument and loving than substantive due process, much more potent in argument in Obergefell than substantive due process. So here you have a general statement of legal equality, of equal protection under the laws. Even a general statement of privileges or immunities is more, I can look at that and I can say, okay.

But the problem with, and I think this is one reason why Alito is saying abortion is different. Because the issue with abortion is it's not just the one life. That's the issue. I found that part pretty unpersuasive. I will say, here's the problem for the dissent. I found that part pretty unpersuasive. I will say, here's the problem for the dissent. A, they don't have a great constitutional theory for the right to an abortion. I get it. As I said, I think it does matter on the level of generality you take. That's why the right to privacy exists,

right? Because if you use that level of generality, then of course there's a history and tradition of it. If you use the right to an abortion, there's not. So the question is, is it a privacy issue or an abortion issue? Fine. That I think is actually their strongest argument. However, when they start talking about how stare decisis should apply to this, that is to me their weakest argument because they are unable, in my view, to distinguish this from Plessy. Plessy was on the books for 50 years. You know, as Justice Alito writes, does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half century of state sanctioned segregation and generations of black schoolchildren had suffered all its effects? Another example, on the dissent's view, it must have been wrong

for West Virginia v. Barnett to overrule Gobitis, a bear three years after it was handed down. In both cases, children who were Jehovah's Witnesses refused on religious grounds to salute the flag or recite the Pledge of Allegiance. The Barnett court did not claim that its re-examination of the issue was prompted by any intervening legal

or factual developments. So if the court had followed the dissent's new version of stare decisis, it would have been compelled to adhere to gobitus and countenance continued First Amendment violations for some unspecified period. As he said, precedents should be respected, but sometimes the court errs.

It's not a straitjacket. I just think there's no way to get around that. It's like stare decisis is important, but to borrow the dissent language, it is a balance. And their last point is, of course, that by overruling Roe, you're calling into question Griswold, Lawrence, Obergefell. Again, that's a really strong argument to me in the sense that I agree that it does. It's just not a legal one. If you agree that Roe was wrongly decided and that stare decisis doesn't affect overturning Roe,

then all you're doing is pointing out that those other, you're agreeing with Justice Thomas. So I find that to be a weaker part of the dissent's argument I just think they're at their strongest when they're saying abortion is an unenumerated right in the constitution because it's a right to privacy you don't get into the specifics of

whether you have a right you know to use your right foot to start your trip across state lines and then try to find history and tradition and say nobody ever talked about starting with your right foot therefore it's not unenumerated. I'm being a little glib, but you get the point. Yeah, yeah. No, the stare decisis point, I agree with you, not strong. And when you're going to talk about stare decisis, as Alito pointed out, every single justice has voted to overrule cases. Every single one.

Including these. Because of Obergefell. Yes. Yes. Right. Distinguish Obergefell. And look, publicly, we've seen people distinguish it by saying this is the first time in history that a right has been taken away from Americans.

I don't know. I find that really unpersuasive because, again, it's just a framing question. First time in history a right has been so again dred scott granted a right to some americans yeah so when that was overruled um did that take away a right to have chattel slavery yikes yeah like that that's again so again you know that's why i'm more i think i'm more persuaded by Alito than you when we're talking about, hey, look, we can't look at this situation as only involving one person. And so if you're saying, well, that you took away a right from the mother to abort a child, well, aren't you granting the possibility of a right

for another person? Because again, it's only a possibility of a right. There's not a right to life granted by Roe, but you're granting the possibility of a right to another person, the unborn child. And that's where this abortion issue just gets different from everything else. And where it doesn't map neatly with some of these other,

like Obergefell, like Loving. Except at that point, you're saying that the fetus has an interest in life, liberty, and property, in which case then you can ban abortion. Like then there's a constitutional interest that the fetus has that you could have a constitutional recognition to ban abortion, which is what K a constitutional interest that the fetus has that you could have

a constitutional recognition to ban abortion, which is what Kavanaugh explicitly rejects. Right. So that's why I guess I don't go in with Alito because he doesn't take it to its logical conclusion, just like he doesn't take the history and tradition analysis to its logical conclusion vis-a-vis Obergefell or Griswold. the side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. All right, should we do a couple potpourri points that have come up? The president spoke today. Yeah, let's do a couple potpourri and then ask some questions. Okay. So Susan Collins says that Gorsuch and Kavanaugh votes to overturn Roe are inconsistent with their past statements during their confirmation hearings where they said it was settled law.

I forget whether we've addressed this before, but again, Plessy was settled law. Now, I think that is very misleading to say because most people think settled law means you're not going to overturn it. That's sorry to say this would apply, but that's not technically what settled law means you're not going to overturn it, that stare decisis would apply. But that's not technically what settled law means. Roe was a thing decided by the Supreme Court. There was not an ongoing circuit split. It was not stuck in a district court trial on the one hand. On the other hand, it had also been upheld by the Supreme Court a second time. It was settled. But so were a lot of these other cases, Barnett obviously being an exception. I think that three years later, maybe you wouldn't have called that settled. But certainly, I mean, certainly Plessy. And I think there's some

other ones I could point to. What say you on the, were they misleading at their confirmation hearings? I think if you're talking about in the American vernacular, yes. Like if you're just, I'm a normal person. Yeah. And somebody says, yeah, that's settled law. Then you interpret it. Not changing.

Not changing. Okay. In the legal, as a matter of legal technicality, no. You're just sort of saying like that wall is beige. You could paint it. You can paint it. You know, it's just a statement as of this moment, it is settled law. It's settled law until it is not settled law. I mean, that's, and so you're kind of, it could adjust to say, no, I never lied. As a technical legal matter, you did not lie. Will you say, did I mislead Americans with clever legalese language?

Yes, you could say yes to that. But I find it interesting that Susan Collins wouldn't know what was up here. I don't. I don't mean that as an insult to Susan Collins I think if you had said that to a Ted Cruz or a Mike Lee, someone who has really practiced at that level, fine but no, I think Susan Collins just took it

the way most Americans would take it but there's also a lot of commentary along those lines at the time, like all they're saying so telling pro-life Americans who suddenly get nervous when they hear a judge who's up for a nomination saying, no, Rose settled law. You'll have a whole bunch of people going, that just means like the wall is beige.

This is grayish, right? Grayish? Grayish. No, I'm saying that I would say it's grayish. That's a color. Oh, fascinating. I did not know that. Yeah, I think this is a color that women know about and men don't.

Okay, yeah, I've never heard of grayish. Legendary producer Caleb also saying he's never heard the word greige. Yeah. So there was a lot of commentary about this, but it's popping up. And I just got an email, a couple of emails from people saying, didn't they lie? From pretty smart, savvy people. To me, it's the circuit split issue.

Once the Supreme Court has decided something, that is the settled law of the land until and if the Supreme Court decides something else. Yeah. OK, second potpourri. The Department of Justice has put out a statement saying the FDA has approved the use of medications at these abortifacient medications. States may not ban it based on disagreement with the FDA's expert judgment about its safety and efficacy. Well, the Department of Justice can say that, but saying it does not make it so. The state of Louisiana signed a law in June making it illegal for anyone to mail abortion pills punishable by up to five years in prison and a $50,000 fine.

The Department of Justice saying they can't do that, that's going to be a court case. Right. Right. Oh, that's going to be a court case. I was going to ask you about other court cases. Here's a court case. Yes. So as we've talked about and it's written about, there is a abortion abolitionist movement emerging. So criminalizing, would criminalize women who receive abortions and also eliminate any exceptions. Including for the life of the mother. Including for the life of the mother. Would that pass rational basis review? No. Rational, sorry, the life of the mother in particular

is the easiest example because a state does not have a rational, a legitimate interest in the fetus's life versus the mother's life if only one can live. Right.

You're picking one life versus one life. It's a one-to-one. So I think that, not a legitimate state interest. Some of the other ones get harder. Yeah, the other ones get harder. Yeah. So health, physical health.

So, you know, that's where it gets tough. I think mental health, different. One that defines it as not including physical health, harder. I actually still think that is if that were drafted poorly enough that it would not pass rational basis review, but drafted well, I think it could. And so you agree with Kavanaugh? Well, I guess you have to agree with Kavanaugh. Travel. I definitely agree on the travel. There's no legitimate interest that the state has to prevent a woman from traveling out of the state. You don't get to know the reason.

Like it's none of your damn business. Now, here's the other question that's going to be interesting. Like what if I'm traveling for multiple purposes? Like I live on the border and I'm going to go to the grocery store. I'm going to visit my cousin and I'm going to get an abortion. Right. A lot of this, so this is something that I think is worth thinking through a bit. There again, for this is for the pro-life

the side of the pro-life movement that is basically taking the position we're going to end abortion through force of law um yeah and you've said this repeatedly like even if you tried you wouldn't be able to do it and by the way and I'm not comparing the two morally but rather the trying to ban anything through the force of law, how did prohibition go? Right. Anytime you have something that is easy to obtain, be where there's proof problems, even if you wanted to prosecute. So how are you going to prove that so-and-so person had an abortion? Somebody comes forward and I said, I heard a rumor that Jane was pregnant. And well, wait, no, what? Are you going to go execute a search warrant and see if that there's a prescription or that she traveled to Illinois? And then, you know, so there's huge problems when it comes to sort of proving the existence of the underlying offense.

And don't forget these other constitutional protections. existence of the underlying offense. And don't forget these other constitutional protections. I actually think a law banning a woman traveling across state lines to receive an abortion fails under rational basis. But Justice Kavanaugh's point is there's a separate constitutional right, the right to travel, that protects that. And it supersedes the state's interest here. Right. Because then it would be under strict scrutiny on the right to travel. So you also have to then look for the constitutional right to do some of these other things.

For instance, the right to save your own life under the life of the mother. And that's where the physical health thing could get interesting too. Again, I think some of those would fail under rational basis.

But separate, if you're saying, for instance, again, I think this is the difference between mental health and physical health, that in order to carry this baby to term, they're saying that, again, let's just go with my hypo here. You will lose a portion of your liver and a kidney. You can live, but you're going to need to be on dialysis and you can't eat certain foods. You may well have a constitutional right to some amount of like health and well-being and normalcy in your health that that would implicate. I'd want to think through it more, but there's not,

this is not, the check is not filled in.'s pretty blank but it's not empty right right exactly exactly but it's the other thing that i think is um the other the other wild card here there's there's two other wild cards back in 2018 gutmacher did a big study late either late 2018 early 2019 where they're talking about okay rose overruled what happens to abortion in the united states what they found is that about 87 to 90 of abortions would still happen um which is something that i think a lot of pro-life folks don't fully grasp because everyone is right so many people right now are thinking overturning Roe bans abortion, upholding Roe legalize,

you know, maintains legality when the reality is where most people live in the United States, abortion is still going to be legal. And then most people who live in places where abortion is not going to be legal live within driving distance of a place where it is.

And then there's the possibility of receiving chemical abortions, you know, maybe through the mail or otherwise. And so about 90% of abortions are still going to happen. So in a lot of ways, the pro-life movement in sort of this on the ground way that it's existed since 1973, it's going to really be surprised to find out how little has changed and how much it's sort of going to be a process of person by person changing the culture. And it's going to be a tough task. And how do we know that?

Because we know, as we talked about in the Trump administration, Trump's the first president since Carter that abortion went up under his presidency. And that was when abortion was more restricted than during any other presidency since Roe and abortion went up. And so to my pro-life friends out there, I tend to phrase the pro-life movement like this, if you're going to boil it down to just a couple of sentences, that the holistic ethos of the pro-life movement is a just society protects all life, a moral society values all life. And if the society isn't moral, even the better justice of the end of Roe isn't going to end up ending abortion, much less maybe even decreasing abortion. So that's sort of, I think, a necessary

word to say to pro-life listeners who are justifiably, justifiably grateful for the reversal of Roe. In my last potpourri, the president gave short remarks from the White House today. Most importantly, by far, he said, I call on everyone, no matter how deeply they care about this decision to keep all protests peaceful, peaceful, peaceful, peaceful, no intimidation. Violence is never acceptable. Threats and intimidation are not speech. We must stand against violence in any form, regardless of your rationale. A good statement from the president, A good statement from the president. Because we don't know what's coming next in D.C. already, one of the three major bridges into the District of Columbia has been shut down due to protests. We don't know what the rest of the day will look like. Police are in full force around the Supreme

Court and throughout D.C. right now. But another thing that the president said that is interesting and something we've touched on plenty, David, this fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality, they're all on the ballot. And he says, until then, I will do all of my power to protect a woman's right in states where they will face the consequences of today's decision. But he doesn't say anything that the president can do. No executive action announced. Not surprisingly, I can't think of anything the president can particularly do on his own without Congress. And he knows that Congress isn't going to do anything, which to me, again, goes kind of to the whole point of Roe. If you don't have the political

will to do it, then all of these people saying, ah, but Roe is so politically popular. If that were true, then you would have the political will to, that's how representative government works. But set that aside. This fall, Roe is on the ballot, he says. We'll see. I actually still maintain that I don't think it will be in the sense that I don't think Democrats will run on this. I think it will be a base issue for Democrats. I think the fall will be spent almost exclusively on the economy, on gas prices, on defending Biden's economic record. And as I have said multiple times, there's two ways to change the outcome of election. Get someone to come vote who was otherwise going to stay home and have someone switch their vote from one candidate to another. Since the Dobbs draft leaked, we had that special election

in Texas with the last pro-life Democrat. Democratic primary voters in Texas had the choice between a pro-life Democrat and a pro-choice Democrat. They chose the pro-life Democrat. I'm not saying they weren't voting on other things. That's my point. They were. This didn't turn the abortion issue. The Dobbs draft did not turn out voters who were otherwise going to stay home to vote on that issue. And it didn't have people change their vote from the pro-life guy to the pro-choice woman on that issue in any meaningful number. It was a runoff election. It was just the two of them. If it's not doing that in a Democratic primary where we know the majority of this energy will be when you

look at Gallup saying it's the most pro-choice that people have been. And then it turns out it's just that that identification is really increased by 10, 15 points for those who vote Democrat. I don't see how it's going to turn out more people in November than it would two weeks ago. Right, right. No, I agree with you. I agree with you. I think that the, and this is something that is, I think, tough for both pro-life and pro-choice Americans, which is the number of people who really care about this issue is pretty small as a percentage of America. So if you're pro-choice and you're wanting to activate millions upon millions to throw the bums out, the Republican bums out in 2022 and pass legislation protecting the right to an abortion. I don't think there's that many of you.

If you're pro-life and you think now at long last we have swept away the Supreme Court's barrier against us enacting the will of the people to protect unborn life, I think you'd be surprised that there's not as many of you as you might think. Doesn't mean in any given state that you can't accomplish that. But sort of this national move towards one direction or the other, I don't think it's going to be there because the people who feel intensely about this issue tend to be a pretty small minority of the electorate. And with that, any parting thoughts? We've been expecting this day now. I mean, we knew we'd get an opinion in Dobbs for over a year when they took the case. We listened to the oral argument early December.

The leaked draft now a couple months ago. Here we are. Yeah. What do you think? You know, it's interesting. I feel like it feels more anticlimactic than I thought it would because of the leaked draft. For sure.

It really does. So in some ways, you know, on the one hand, I'm very grateful for this day. It's the product of really, you know, this is the culmination in some ways of 30 to 40 years of conservative legal movement, thinking, planning, work, et cetera, arguments. And it's not just legal. It's been political and social and cultural as well. And so I think from that standpoint, I'm incredibly grateful for the day. But just like you were talking last night at our live podcast, I'm also apprehensive for the future. I'm not quite

sure what's going to happen next because there are few times in recent American history where I can think that we are a few times where we've been more vulnerable in recent American history to additional strains on the system. Yeah. And of course, we still have quite a few more opinions to come, including three big ones, the climate change case, the coach Kennedy prayer football case, the migrant protection protocols case. What else am I missing? I'm sure I'm missing some that we will need to talk about. And we will next week, Monday, another hand down day. Yeah. And I think that, well, I don't want to speculate too much, but there will be enhanced anger

at the predicted outcomes in some of these cases because of Dobbs. Just I think there is an enhanced anger in some of the cases decided before Dobbs because of Dobbs. Interesting. Yeah. Well, I'll be discussing it all on the ABC Roundtable this week on Sunday. I never actually get the chance to say when I all on the ABC Roundtable this week on Sunday. I never actually get the chance to say when I'm on the Roundtable because of the timing of our pod,

and people always are slightly annoyed. So if you're hearing this and it's before Sunday, tune in to ABC on Sunday morning. Yeah, absolutely. And I'll be writing about this in The Dispatch and The Atlantic. You can subscribe, by the way, to David's Sunday French press newsletter. It is the highlight, and just because I know David, but like truly, I get so much out of that Sunday French press. I really, really love it. Oh, well, that's kind of you to say. Yeah. It's like one of those in my inbox, you know, where even if I don't get to read it on Sunday and like three or four days go by and I'm like, oh, I'm an inbox zero person.

I will never delete it. I will always, it's like, I will take the time even a week later. Well, it never gets a week old. I'll say that. But even three to four days later, I will take the time to read it. Well, I appreciate that. I value your endorsement a great deal. All right. Well, you know what I'm going to say now? This is a good pod. All right. Well, you know what I'm going to say now? This is a good pod. This was good podcasting right here. So if you agree, please go rate us on Apple Podcasts or wherever you get your podcasts. Please subscribe wherever you get your podcasts and please check us out at thedispatch. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye. Bye.

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