The End of a Grievous Error

Published Jan 9, 2022, 12:15 AM

After 48 years, will the United States see the end of a grievous error? Following the oral arguments in Dobbs v. Jackson Women's Health Organization, our resident legal expert, Senator Ted Cruz, joins Michael Knowles and Liz Wheeler to discuss the fate of one of the worst decisions in Supreme Court history—Roe v. Wade. Where is abortion in the Constitution? What the are all of these penumbras and emanations? What about stare decisis? And, most importantly, do we actually think the conservative justices will overturn Roe?


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After forty eight years, the United States may be coming to the end of an error, a grievous error, one of the most grievous errors, if not the single most grievous error, in the history of the United States. The Supreme Court has just heard oral arguments in Dabbs versus Jackson Women's Health Organization, and in the coming year could very possibly overturn Row versus Wade. This is Verdict with Ted Cruz. Today's episode of Verdict with Ted Cruz is sponsored by American Hartford Gold. I'm sure I'm not the only one who's noticed everything is getting expensive. We are in the biggest economic crisis since two thousand and eight, with a government that's printing trillions and trillions of dollars. Consumer prices are the highest we've seen in thirty years. Inflation is certainly here to stay, and if the government continues it's out of control printing and spending, the dollar could continue its free fall and lose its coveted role as the world reserve currency. 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Today's episode is also brought to you by stamps dot Com. If you've got a small business, you know that there's nothing more valuable than your time, so stop wasting it on trips to the post office. Stamps dot com makes it easy to mail and ship right from your computer. Save time and money. With stamps dot com, send letters and packages for less with discounted rates from USPS UPS and more. Since nineteen ninety eight, stamps dot com has been an indispensable tool for nearly one million businesses. Stamps dot Com brings the services of the US Postal Service and UPS shipping right to your computer. Stamps dot Com will make your life easier. All you need is a computer and a standard printer, no special supplies or equipment. Within minutes, you're up and running printing official postage for any letter, any package, anywhere you want to send, and you'll get excoolsive discounts on postage and shipping from USPS and UPS. Once your mail is ready, you just schedule a pickup or drop it off. No traffic, no lines, so cut the confusion out of shipping. With stamps dot COM's new Rate Advisor tool, you can also compare shipping rates and timelines to easily find the best option, so save time and money. With stamps dot com, there's no risk and with our promo code Verdict, you get a special offer that includes a four week trial plus free postage and a digital scale. No long term commitments or contracts. Just go to stamps dot com, click on the microphone at the top of the homepage and type in Verdict Welcome back to Verdict. I'm Michael Knowles, and we are going to get into the legal arguments and the precedent and Roe and Doe and Casey and all of the law stuff that I don't really know anything about. But something I do know a lot about is personality. And frankly, I think what a lot of this case is going to come down to are the justices. So last month we heard the oral arguments where the lawyers made their case. Senator, since you're the one who actually knows some of these people, you have argued cases before the Supreme Court, what is your take on the questions and reactions from the justices? Well, listen, the short answer is, I'm quite optimistic and I am very pleasantly surprised going into argument. I was worried about this case, and I'm still worried, but I'm much more optimistic today than I was before the argument. If you look at the court right now, we've had nine justices on the court, there are only two that I am absolutely confident going into argument. We're going to Number one vote to uphold the state law in question, the ban on abortions after fifteen weeks. But number two, even more Fundamentally, there are only two justices that I was certain we're going to vote to overturn Roe versus Wade. Coming out of the argument. I'm much more optimistic than that. The two that I'm confident about are Justice Thomas on Justice Alito, both of whom have been clear and explicit that they believe Roe was wrongly decided and should be overturned. The justices that I was far less confident about are Chief Justice Roberts, and then the three Trump justices, Justice Gorsus, Justice Kavanaugh, and Justice Barrett. Those are the justices really that are in play. The remaining justices on the left, their votes are clear. They're going to vote to strike down the state law. They're going to vote to reaffirm roversus Wade. There's no doubting where their votes are coming out of the argument, though I'm actually quite encouraged. The questions seem to lean quite heavily in the direction of affirming the state law. So the good news is, at this point, having listened to the argument, I would be shocked and even astonished if the Supreme Court struck down the state law prohibiting abortions after fifteen weeks. So that's a big deal. That's a major victory. And I think there is a very real possibility that this Court would will do what the Court has been unwilling to do for nearly fifty years, which is overturned Row versus Wade, and returned the authority to make decisions and determinations and laws concerning abortions, returned them to the states, and returned them to the people. And it's worth noting at the outset the consequences of overturning Row are not that abortion is suddenly illegal. A lot of people don't understand. They here overturn versus way, it kind of startles them. That sounds like a sounds like an extreme and shocking thing. For most of our country's history, abortion was a matter that was regulated at the state level, and different states could adopt different laws, and they did. And in nineteen seventy three and Row versus Wade, the Supreme Court changed all that and it struck down it actually struck down Texas's law that protected the life of an unborn child, and it issued a decision that I believe was lawless, that that was wrong, that was not tethered to the Constitution. As we've talked about a lot on this pod. The book I wrote last fall, One Vote Away, How a single Supreme Court seat can change history. There's an entire chapter on that book focused on life, and it begins with ro versus Wade. I think that decision profoundly and perhaps irreparably politicize the Supreme Court, and it brought us into this world of deeply political, nasty Supreme Court confirmation fights, because if you have nine unelected lawyers decreeing the law for three hundred and thirty million Americans and determining what they can make rules about and what they can't, that significantly compromised the independence and the integrity and the judicial nature of the Court. I hope they overturn Row, and I've got some real sense of optimism that they're going to Senator. Before we get into it, I tell you, I know that you're a constitutional scholar, you've argued before the court, you're a senator. Me you know, I'm just some guy. I've listened to the oral arguments, read the history, but I am reliably informed. We are not allowed to have an opinion on this matter because this is a woman's issue, and all women love abortion, and all women totally love Roe v. Wade. So, Liz, since you are the only woman that we have for miles around here, that's all true. We got to uphold row abortions great and women need to shut up. Well, I can reliably inform you, as a woman, Michael, that that is fake news, that all women do not, like Roe v. Wade, do not need abortion to succeed. But you actually bring up an interesting point because listening to these arguments in front of the Supreme Court, I was frankly surprised at how weak the arguments from the pro abortion side was. They essentially focus on two things. They focus on the very unscientific argument I guess if you even want to call it an argument, that this was about a woman's body, instead of differentiating that, of course, the unborn child is a separate body, that there are competing interests between that child and that mother. But also in Senator, maybe you can speak to this a little bit. They kept categorizing Rowe as being the super precedent, that because it is quote unquote settled law, that it simply cannot be overturned. This is not true in the history of our nation. Well it's not, and the Supreme Court has overturned a lot of precedents over the two hundred plus years of our nation's history. The justice that leaned in the hardest on saying that was Justice Brier and Listen. He was trying to find a way to save Rowe, and his argument, his argument really really stemmed from the decision in Casey. So a little bit of the history Rowe was nineteen seventy three. It struck down essentially all the laws across the country that banned abortion. It was a seven two decision. It was written by Harry Blackman, who had been an appointee of Richard Nixon and a Republican appointee. And Blackman had previously been general counsel of the Mayo Clinic. And Blackman was not a distinguished jurist. He was one of the least distinguished members to ever serve on the Court. And the Roversus weight opinion is a terrible opinion. It doesn't derive from the Constitution, it barely purports to. And Roversus Wade set up this this trimester formula. In the first trimester, the state had almost no leeway regulating abortion, and the second trimester they had more, and in the third they had significantly more. That's that doesn't come from the Constitution, doesn't come from the Bill of Rights, but it was invented in roversus. Wade. Fast forward to nineteen ninety two. Nineteen ninety two, You've had twelve years of Reagan Bush. You've had multiple Republican justices appointed to the Court. You had Sandra Day O'Connor appointed to the court. You had Justice Scalia appointed to the court. You had Anthony Kennedy appointed to the Court. You had David Suitor appointed to the Court. And in nineteen ninety two, the decision that everyone thought was going to overturn Roe versus Wade was a decision called Casey. And at the time, you know, it's a little bit like where we are now. It's part of why conservatives are wary even though the argument seems good. The argument seemed good, and Casey Casey concerned. The state of Pennsylvania had a whole series of laws they passed that were some fairly modest restrictions on abortion. So, for example, Pennsylvania required parental consent for a minor to get an abortion. Pennsylvania required informed consent before a woman could get an abortion. Pennsylvania required a twenty four hour waiting period. Pennsylvania also required spousal note of vacation, and when the case went up there, almost every observer said, rovers's way, it's going to be overturned. Well what happened. It wasn't overturned Casey. Casey reaffirmed row and it upheld most of the different Pennsylvania laws. So it upheld the parental consent aspect, it upheld informed consent, it upheld the twenty four hour waiting period, but it struck down spousal notification. And in Casey, you had three Justices O'Connor, Kennedy and Suitor who wrote this joint opinion, which is very strange. Normally an opinion is signed by one justice. None of them signed it. They wrote it together as a joint opinion because they were I think, really trying to hide from accountability for what they were saying. And they threw out rows trimester system and they replaced it with a new standard called undue burden. And we'll talk about that more in a minute. But Casey talked a lot about how Rowe was a super precedent, that that it had a high threshold to be overturned, and so Justice Bryer kept repeating the portions of the Casey opinion, saying Rowe was a super precedent because he's trying very hard to preserve it. Um. I'm not sure his arguments were very persuasive to his colleagues, though. We actually have a lot of great questions about this case, specifically from our Verdict plus subscribers. People are very interested in the nitty gritty the legality of this, not just the cultural aspect of abortion. Before we get to that, we've compiled a bunch of video clips or not video clips, audio clips from the Supreme Court oral arguments to address some of these questions. So I want to toss this to Michael Great, all right, Liz, we'll get back to you a little bit with the mailbag. And Senator, you've what you've laid out here has actually it's made me even more confused. It's not your fault. It's just the history of the way these decisions have gone on at the Court. So we've got Row, we've got Doe, which is different than Row, I take it, and then later on we've got Casey. And all of this affirms some right to an abortion, but the justification for the right to an abortion kind of changes, I guess. Actually, Justice Thomas, now in the Dabbs questioning, gets to the heart of this question. He says, what right is this really about? Take a lessen What constitutional right protects the right to abortion? Is it privacy? Is it autonomy? What would it be? It's liberty, your honor, It's the textual protection in the fourteenth Amendment that a state can't deprive a person of liberty without due process of law. And the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a previability pregnancy. So simple question from Justice Thomas, what right are we talking about? It? If I talk about the right to have a gun, I can point to the Secondmendment. I say, there's my right to have Again, what is the right is abortion? And she says, no, it's it's liberty. In the fourteenth the men men maybe applied differently depending on the case you're talking about. So what, Senator, please help me? What is she talking about? So let me say at the outset that that I love Justice Thomas's voice, the deep, gravelly voice, And I'll tell you I've I've been blessed. I know Justice Thomas fairly well and spend time with him. When he laughs, it is like Santa Clause. It is the most unbelievably deep that that that is just spectacular, and he is he is a true American hero. Um. The reason he asked that question is because if you look at the Constitution, if you look at the Bill of Rights and you go look for the word abortion, you don't see it. Um. If you look for pregnancy, you don't see it. If you look for any authority for restricting and restricting and preventing states from from protecting unborn life, you don't see it. And there's a reason for that, which is that many of the states did so that that it had been the case for one hundred and fifty years of our nation's history that the states had the authority to prohibit abortion. You know the hippocratic oath, you know the oath that doctors take. Every doctor takes says I will not help a woman procure abortion. So there had been centuries of legal precedent that the states had the authority to do this. So how did we get to row. Well, to understand how we get to row, you have to get to it. You have to start with a decision called Grizzwold versus Connecticut, which was one of the precursors to Row. And it was a manufactured case that actually came out of Yale Law School. You're alma mater to teed up Grizzwold versus Connecticut. And and it was a woman who went to purchase contraceptives was denied the ability to purchase contraceptives pursuant to a state law that was rarely, if ever enforced, But they went and found someone to enforce it so that they could tee up this test case. The Supreme Court in Griswold versus Connecticut, struck down the prohibition on contraceptives. Look, I think a prohibition on contraceptives is incredibly stupid. It is very bad policy. I don't know any rational person in this country who believes contraceptives should be illegal. Well, we'll get into it lab. Sorry, we'll get into it later. Senator. Let's go on. Even Michael Knowles, I don't think believes that depends on what year you ask me, you know, as a young man. Yes, but Griswold actually the reasoning it it said, and this is where the Court got a little metaphysical. It said, it was the first major decision that created what's called the right to privacy, and Justice Thomas in that clip refers to the right to privacy, and the word privacy doesn't appear in the Constitution either. But what the Court said is is the Court said, well, the protections in the Bill of Rights have emanations. Basically, they glow, and those emanations cast panumbras a pannumbras a fancy word for a shadow. Now and within the pannumbras from the emanations we find the right to privacy. Okay, all right, fast forward to row. Within that right to privacy, Justice Blackman wrote, the right that came from a pannumbra, from an emanation. That, minds you, that rights in the Bill of Rights are casting. Is where the right to an abortion came from. One of the reasons why roversus Wade, even when it came down, was almost universally ridiculed as just almost incoherent, just just bad legal writing, not tied to the Constitution. Even liberals, you know, Ruth Bader Ginsburg was actually quite critical of the reasoning in roversus Wade. She agreed with the outcome the reason. Justice Thomas asked that as in Row Harry Blackman says, it comes from the right to privacy, that's coming from the numbers of emanations. Subsequent liberals have defended it as an autonomy interest and a liberty interest. So these are all different ideas that have been cast forth. Because abortion is not in the Constitution, they're trying to find another way to find it in there. And so, look, is there a liberty interest protected in the Fifth Amendment and fourteenth Amendment? Absolutely, but they also protect life and liberty. You're free to do what you wish, but that restriction always has limitations when it impacts the rights of another. And so I think it is a too cute by half argument to say it is within the liberty interest. And and but that I would say is the more modern liberal argument for the right to abortion is true to the extent they're trying to ground it anywhere um that they they try to ground it within a liberty interest. Although autonomy was the basis that Justice Kennedy found for striking down Texas's law criminalizing homosexual sodomy, and he talked about the right to autonomy. And in fact, there's a passage that that Justice Scalia ridicules as the sweet mystery of the universe passage where he says, I can't quote it exactly, but for each of us, the process of defining ourselves, our existence, and the sweet mystery of the universe is at the core of humanity. It's this like poetic gibberish. That's right, the right to define our own concept of existence. And which if that is the case, I do define myself as a professional Major League baseball player. That is my right, Senator, and please, I would appreciate if you would address me as such. Well, And Michael Baseball had been very very good to me. And that's from a Saturday Night Live before probably before you were born, when I was just a glint in my father's eye. That's true, but but about as coherent, by the way, as Justice Kennedy's argument. And it's so the case you were deciding as Lawrence v. Texas, which strikes down laws against homosexual activity. And by the way, to be clear, I think laws again homosexual activity every bit as assinine as laws against contraceptives. I would emphatically vote against those laws as a state legislators, as a member of the Senate, I don't think government has any business regulating in that instance the conduct of consenting adults. I think you ought to be able to do what you wish. But the reason Justice Thomas asked that question is there sort of three different buckets from which different people have sought to try to derive a right to abortion. Well, and to your point on Lawrence View, Texas Senator Scalia made this point. He said, there are plenty of things that are bad. There are plenty of things that I don't like, plenty of things that I do like and that are good that are just simply not in the constitution. He said, there can be things that are SBC stupid but constitutional. And so as you're describing this right to an abortion would appear to be a conclusion in search of an argument, inclusion in search of evidence. And the evidence keeps changing, and the arguments keep contradicting each other sometimes, but they come down and they say there's a right to an abortion, and they reaffirm it. So then the question is, and this was a question that the judges and the justices are dealing with, is what about starry decisives? What about precedent. Let's say you've got a really bad decision. Well, what if it's been on the books for fifty years, doesn't it have to remain there? A Justice. Cavanaugh listed a number of landmark cases in the Court's history that we're not exactly settled law. Take a listen, and history helps think about stary decisis as I've looked at it, and the history of how the courts applied star decisis, And when you really dig into it, history tells a somewhat different story I think than is sometimes assumed. You think about some of the most important cases, the most consequential cases in this Court's history, there's a string of them where the case is overruled. President Brown v. Board outlawed separate butN equal. Baker versus car which set the stage for one person, one vote, West Coast Hotel, which recognized the state's authority to regulate business, Miranda versus Arizona, which required police to give warnings when the right about the right to remain silent and to have an attorney. President to suspects and criminal custody Lawrence fee Texas said that the state may not prohibit same sex conduct. Map versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment Gideon versus Wainwright, which guaranteed the right to counsel in criminal cases, or burgha. Fell which recognized a constitutional right to same sex marriage. In each of those cases, and that's a list, and I could go on, and those are some of the most consequential horton in the Court's history. The court overruled precedent. And it turns out if the court in those cases had had listened and they were presented in with arguments in those cases adhere to precedent in Brown v. Board and here to Plessy on West Coast Hotel, adhere to Atkins, and adhered to Lochner. And if the Court had done that in those cases, uh, you know, the country would be a much different place. So Justice Kavanaugh is asking, Okay, you're you're you don't have much of a legal or constitutional argument for abortion. You're staking a lot of your argument on starry decisive, on the idea that precedent, even even a badly decided case, should should carry some weight. Well, what about all these other cases that overruled precedent and so so which is it. Are we going to celebrate cases that overrule bad precedents or are we going to just with precedence even if they were egregiously decided. Well, that that question that you just played from Justice Kavanaugh is probably the single most encouraging thing that happened at the oral argument. I wrote at length in my book One Vote Away that I was quite concerned about Justice Kavanaugh and how he would rule on a challenge to Row. And I was quite concerned about Justice Course which as well, and but especially Kavanaugh. And basically, let me step back for a second. What played out at the oral argument is I listened to it and read through the transcript. Was I think there are six votes to uphold the state law, the ban on abortions after fifteen weeks. All but the three liberals are going to vote, I believe to uphold the law. Chief Justice Roberts, I believe does not want to overrule Row. And at the argument he was spending much of his time casting about for a way can the Court do something smaller uphold the state law but not overrule Roe versus Wade. And so he's trying to find you've got three votes on one side Roberts just needs one. He needs to get Kavanaugh or Gorsuch or Barrett. So Roberts is hunting for one additional vote. If Roberts gets one additional vote, Rowe won't be overturned. And so the entire argument. And John Roberts, as you know, is someone I know very very well. He liked me clerk for Chief Justice Rehnquist. He was an extraordinarily talented Supreme Court argument advocate. And so he's casting about for essentially, don't we can just uphold this law and we don't have to go so far as overturning Rowe. That question from Kavanaugh is really encouraging because because he's going through being landmark decisions of the Supreme Court. Most of those decisions I talk about in the book One Vote Away. I go into the history of a lot of those different decisions and how they overturned precedent. The biggest one, Brown versus Board of Education. Brown versus Board of Education decided nineteen fifty four struck down segregated public schools, and it overturned a decision called Plessy versus Ferguson and Plessy. It's one of the most disgraceful decisions in the history of the Supreme Court. The Court upheld something called separate but equal. It concluded that even though the Constitution gives everyone equal protection of the laws, that it was consistent with a constitution for the government to say one school for black children, one school for white children, one water Fountain and Brown overturned Plessy. It was absolutely the right thing to do. Plessy was an abomination. You know, Justice Kavanaugh began with Brown and went through a whole litany of big, major cases that were overturning precedents. And the reason that's encouraging as you listen to that question, it suggests pretty strongly that Justice Kavanaugh is open to and leaning towards, overturning Row. That's a big, big deal, particularly because the questioning from Gorsten and Barrett was encouraging as well. So if I were counting noses right now, we may well get to five on getting the Court out of the business of legislating on questions of abortion, and we may well send that back to the States instead, which is where where it has always belonged under the Constitution. Well, that is that is what I want to get into, beyond the legal arguments which I think you have done as good a job as anybody possibly can to helping me to understand what the pro abortion side is arguing here, and it's it's not very coherent, and even many people who support abortion have agreed that the way the cases were decided doesn't make any sense and the legal logic is not really there. But now we're talking about people, we're talking about votes. Who actually is going to have the guts to do this? Thomas, he's going to overrule Row one hundred percent. Alito, he's going to overrule Row. Almost. Yeah, you've got the three liberals, they're certainly not. Then you've got maybe a fourth liberal, chie Chief Justice John Roberts, who probably, as you think, does not want to overrule Row. Kavanaugh you like his arguments. So you're also saying then that Barrett and Gorsets, you liked what they were asking. You felt that the way they were approaching the oral arguments showed that they were leaning toward overruling. I did that they're questioning was quite good. One of the things that they emphasize as the point I made that if Row is overturned, it doesn't immediately ban abortion nationwide. It instead leaves it to the states. And by the way, there are a bunch of blue states in which abortions will still be widely of ailable, you know, New York, California. Nobody thinks the state legislatures in those states are going to suddenly wake up tomorrow and ban or even significantly restrict abortion. You and I would hope and pray that they would, But as a political reality, that's not happening, even without Rovers's weight on the books. What we would see instead is each state adopting different standards, and there would be a variety of them. And you know, Justice Gorsuch one of the reasons I was very encouraged Gorsuch. Gors It's a very smart lawyer, and he pressed the lawyers on. Okay, so to uphold the state law, rowe had a standard it made up of viability that basically said, before the unborn child is viable can live outside the womb. Before the unborn child is viable, the state can do very very little to protect life of the unborn child. After viability, the state can do more. Okay, Justice Blackman made that up, And in fact, there's an interesting exchange where Chief Justice Roberts notes that in the Blackman papers. So this is after he retired as a justice, he released his papers, his notes on writing Roversus Weight, and he admits in his notes that viability was just a concept he made up from when he worked at the Mayo Clinic and had nothing to do with the Constitution. It just he pulled it out of his rear end and invented it. And it's it's it's a funny little exchange because Roberts is like, wow, this is sort of an odd source, the Blackman papers, but I guess they're there, and he admits it's made up. And what Roberts is pushing for so he's to uphold the state statute. Here you have to reject viability because viability is twenty four to twenty six weeks, not fifteen weeks. And right now, scientifically a fifteen week unborn child can't live of outside the mother's womb. And there's another issue, which is that viability does move, Yes, he moves with scientific advancements. So whereas a baby could previously could not survive before twenty four weeks, now babies can survive at twenty one or even twenty weeks. And what's the argument that's being made for the Mississippi law is that the baby cannot survive at fifteen weeks. But he looks like a baby. The baby's got all his little baby parts, He's got his little fingers and his little toes. He he seems to have all the features of what we would call a baby. But because he doesn't meet that standard, you have to you have to change the standard. The standard that you observe was just pulled out of thin air. Rovers's way to establish the trimester system, which Justice Black been made up in Casey. The joint opinion, the opinion that was written by Kennedy and O'Connor and Suitor throughout the trimester system said it's made up. It's no longer the law, and so it actually overruled part of Row. It reaffirmed Row, but it throughout part of ROW, and it invented a brand new test. And the brand new test was that states can have restrictions on abortions, but they cannot have an undue burden on the right to abortion. So they can apparently have a due burden, but not an undue burden. And undue burden is not a term found anywhere in the Constitution. It's not a term that means anything in law. It's just something they made up. No undue burdens, which puts the court due burdens fine in the business of measuring how much of a burden is due. So Roberts was basically arguing at the oral argument, well, viability was an arbitrary, made up line. Even the Blackman papers tell us that, so if we jettison viability, we can uphold the Mississippi law. Right, yes, so we don't have to overturn Row or Casey because if we jettison viability, we can simply say this is fine. Gorsitch was pressing hard on the defenders of abortion, saying, Okay, if viability is not the line, how do we draw a line? How do we draw a workable line? This is a fifteen week prohibition, how about twelve weeks? How about ten? How about nine? Like, how do we draw And what was interesting is the defenders of abortion the Biden administration said yeah, it's basically unworkable. We can't draw those lines. There's no ways. Courts are just making it up to draw those lines. And what's fascinating about the look Gorsitch is pushing on that because if they admit there's no workable legal standard. That is one of the major factors under starring decisive star decisis is the Latin word for respecting precedent. That's one of the major factors for overturning a precedent. So when Gorseitch is asking without viability, is the legal rule unworkable? What he's saying is and therefore, shouldn't we overturn Row versus Wade? In other words, is there not a middle ground? Don't we have to go all the way? And gorse was pretty aggressive on that, and Barrett was pretty good on that, and so that combination led me. I was quite skeptical going into arguments that there were five votes to overturn Row. I'm pretty hopeful right now. So before we get to mailback, as always we're running late, I have to touch on what I think was the most persuasive argument made on the pro abortion side. It was not made by one of the lawyers. It was made by one of the judges, Sonya Sodomyor, who said, if you overrule Row versus how will we ever get the stench of politicization out of the court and take a listen, will this institution survive the stench that this creates in the public perception that the Constitution and it's reading are just political acts. Senator, how are you going to get the stench out of the court, Well, you know, they're the ones that put the stench there. It was, and Row played a big part in putting the stench there. Ever since that day, the court has been deeply political, and it is why. And I got to say, you listen to the argument. Justice Sotobayor was relentless defending Rowe, defending Casey. She she was fighting, to be honest, she was a better advocate than either of the two lawyers standing at the podium arguing for abortion. Sodomayor was relentless. Now you also saw Briar. Briar does it more as a law professor, more in the abstract. And you saw Kagan. Kagan is the best litigator of the three liberals, and so she was trying to find ways to push and she recognizes. I think Kagan recognizes this law is going to be upheld. But I think Kagan is quite interested in who can we pick off Kavanaugh, Gorsich, Barrett to join with Roberts and don't overturn Row. And so Kagan was very focused on that, and that's the question to one of the three go for the middle ground or not. Sodomayor gave a speech that frankly, is not all that different in her questions from what would be given by Elizabeth Warren or Maizie Harrono in the Senate. It was a political speech because Withrow, the Court jumped emphatically into the political sphere rather than the legal and judicial sphere, which is one of the biggest reasons why I think the Court should return it to the political sphere and let the people decide. And by the way, one of the reasons abortion is so contentious so angry is because there's no outlet. Listen, we disagree, and abortion is a personal it is an emotional it is the feelings on both sides are genuine. They're not making it up that you know, both sides really really believe it. Normally, in the democratic process, there's a safety valve to work that out because you can argue back and forth, and you can try to persuade each other, and sometimes you can reach middle grounds, and all of that makes our democracy work. But when you have nine unelected judges say I don't give a damn what you think about it. I'm smarter than you are, and we know better, and we're going to take it away from you. It produces the kind of intense division that we've seen, and based on this oral argument, I think we have a real chance of seeing the end of an era that was, as you put it, a grievous error. Well, in the spirit of hearing from the people and making their voices heard, we should get to the mail back. So let's bring our friend Liz back. Liz, what do you have for us? Well, A lot of people, a lot of our subscribers, a lot of our friends on Verdict Plus, asked about this case specifically. I think they're going to be just enthralled to listen to this legal breakdown. If you aren't already a subscriber on Verdict Plus, join us. It's Verdict with Ted Cruise dot Com slash plus. If you're not already a part of the community, now's the time to jump on it. We've extended our sale into the new year. Between now in January fifteenth, you can become a Verdict Plus subscriber for just fifty six dollars for an annual subscription. That's fifty six dollars. This is the cheapest price you'll ever see. So now is the time to do this. Go to verdict with Ted Cruz dot com slash plus. So, Senator, the first question I want to ask is from someone whose username is twin sister. She says, why hasn't anyone on the pro life side argued, if fetus is a person and therefore entitled to due process, as the Fifth and Fourteenth Amendments mandate, before depriving him of life, shouldn't the onboard child be given the equal protection under the law. So, look, that is a very good question, and it is a question that is debated in legal circles. You are right that the Constitution, the Fifth and fourteenth Amendments both protect the rights to life, liberty, and property. That you can't be deprived of any of the three without due process of law. There's another decision of the Supreme Court called caroline Products, and in Carolyne Products footnote four and lawyers are weird because footnote four of Carolene Products is actually a thing that lawyers refer to. It describes that the protections of the due process clause and of equal protection are more significant for what discreet and insular minorities. So that's the phrase and footnote for of Carolyn Products. Discreet and insular minorities mean minorities that are readily identifiable, that are insult In other words, they're weaker and can't protect themselves. And what Carolyn products that is. Look, they can't use the democratic process to protect themselves because they're discreet and insult and minorities, and so the constitutional protections are more robust concerning them. And there have been legal scholars who have pointed out it is difficult to imagine a more discreet and insular minority than an unborn child, who by definition cannot protect herself for himself and the political process, you know, Reagan famously equipped. You know, I notice all the people in favor of abortion have already been born, and the unborn should are not given a voice in this. That is certainly a legal argument one can make. It is not an argument the Court has ever gone so far as to embrace or suggest, and look, the consequence of that argument would be a Supreme Court decision protecting the right to life across the country. There are none of the nine justices on the Court who have suggested they would go that far, each of them has said the Constitution is silent on this, and so it is left to the States and to Congress to regulate it. And by the way, even the pro life lawyers did not make this argument. They actually specifically stayed away from this argument, perhaps to try to appeal to some of those justices who are on the fence. Michael, the next question is less of a legal question and more of a cultural legal hybrid question. So I want to focus on you for this one. It's from John Bennett. He says during the Supreme Court case Stobs versus Jackson, the leading pro abortion argument was the negative economic impact childbearing or child rearing is on women or has on women, which poses the question that doesn't it also have an economic impact on fathers. If fathers don't have a say, then why are they responsible for child support? If they are responsible for child supports, shouldn't they also have a say in the termination of their child's life and given the option to keep the child and release the mother of her responsibility. Well, I think certainly a father should have to say and whether or not a child will live or die and be killed through some obscene pseudomedical process. But I don't think that we need to make an economic argument. I think the observation is really quite good that the pro abortion side is now nakedly making a money argument. They're saying, well, look, I know you might decide to keep your kid or give up your kid, but if you keep your kid, it's going to cost you money. And if you give up your kid, you can sacrifice him to the idol of lucer and mammon. This is nothing new. I'm glad you've phrased it as a cultural question. This is nothing new. We've seen this in cultures from the beginning of the world. But it's wrong. It is wrong to view your kid as a money bag or an economic drag or even an economic benefit. Your kid is your kid. Your kid has made in the image of God and to some degree in your image, and is worth more than dollars and cents. And this is a big problem. So it's a clever argument to try to make some economic argument on the right, but I just think it's completely missing the points. It is simply wrong, and there's no amount of mammon or lucre that could convince me or I think any reasonable person otherwise. Well, and Michael let me jump in on this also because this was a point that Justice Barrett engaged in where she pointed out that now states all across the country have enacted so called safe haven laws where if a mother gives birth to a child and that mother does not feel she can care for that child, that you can go and hand over the child and the child will be cared for. And so it's just a protect and in law if for whatever reason, whether economically, if the mother's destitute and can't afford to provide for the child, or for whatever reason, there is an option to hand over the child to be cared for another and it is And so Justice s. Barrett asked about that and said, look, doesn't one of the arguments that was used by the majority in Row and used by the majority in Casey was this economic argument that it could be a financial burden on a mother who is not in a doesn't want to have a child at that point, And Justice s Barrett said, well, look, hasn't this change now that at least the economic consequence if you don't want to bear it. The states have enacted laws to enable an alternative that protects the child's life without imposing a financial burden on you. And she also pointed out in the second line of questioning adoption, which is obviously another avenue of that and an adoption. I think it was her questions point out that it was mentioned only in like brief passing in row but not really considered any any level. That that that with adoption, that is another avenue that if you have a mother who does not believe she is in position to raise the child, that she has an option, uh that that that can still preserve the life of the child. And this is such a great point, Senator, and it's it's one that very few people seem to understand the reality of because what the pro abortion side will say is that there are so many orphanages and the foster system teeming with children who are not being adopted, and therefore adoption is not a viable alternative. But it's it's really hiding the ball, it's really misrepresenting what's going on. It's true it's very difficult for older children to be adopted, and there are lots of problems in the foster care system, and of course one could speak for hours about that sort of thing, But when we're talking about babies who are being put up for adoption as newborn babies. There there are an estimated thirty six couples. For every newborn baby in the United States who has put up for adoption, thirty six couples who want to adopt that baby. So there is absolutely no shortage of demand to put In economic terms, there's no shortage of loving homes. If a woman feels I am not at a place in my life where I can care for this baby, there are so many avenues adoption and as you say, laws that will enact these safe havens, So the economic argument does not carry water. There's also some kind of glorious poetic justice, I think in justice Amy Barrett or Amy Coney Barrett sitting up there, the mother of seven children, this woman who is just so distinguished her career. She has achieved the pinnacle of what you can achieve when you are, you know, a lawyer the way that she is, and her children have empowered her, not held her back. So there's some kind of, like I said, poetic justice in that. On that note, anybody who wants to submit a question for next week's episode of Verdict, you can do so at Verdict with Ted Cruz dot com. Slash Plus. Become a subscriber on Verdict Plus, and you will behind the scenes access to Senator Ted Cruz to ask questions that we will answer right here on the show. So often we're talking about how everything is just going to hell in a handbasket, and you know, the news is all terrible, but this is really You have convinced me, Senator, that there really is a concrete reason to hope here, specifically when it comes to this case, to the end of a grievous error. But we'll have to hold it there. Thank you, Senator. I'm Michael Knowles. This is Verdict with Ted Cruz. By the way, don't forget our tremendous giveaway in honor of the two year anniversary of Verdict, if we reach fifteen thousand members on Verdict Plus by January twenty first. 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