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May 3, 2022 - The Ben Shapiro Show

01:18:01

Is Roe About To Be Overturned?! | Ep. 1486

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	Someone leaks a draft of the Supreme Court decision on Roe versus Wade.
	And apparently, a majority is now ready to end the non-existent constitutional right to abortion.
	And the left goes absolutely berserk.
	I'm Ben Shapiro.
	This is the Ben Shapiro Show.
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	Huge news day.
	We're going to get to all of it in just one moment.
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	Well, this is the biggest breaking news morning in, I don't know, about half a century in terms of the legal sphere.
	Because last night, Politico broke a story.
	And this story is stunning for two reasons.
	One, the content of what the Supreme Court is apparently ready to do.
	And two, the fact that it was leaked.
	We'll start with the second story first.
	So last night, Politico reported that a draft decision by Justice Samuel Alito that had achieved a majority of Supreme Court support, apparently five votes in favor, was to basically overrule Roe v. Wade.
	Not basically, entirely overrule Roe v. Wade, entirely overrule Planned Parenthood v. Casey, and return the issue of abortion to the state legislatures where it originally resided.
	And the fact is that the Constitution of the United States has nothing to say about abortion, which means that states all over the United States had various laws with regard to how liberal they were going to be on abortion or whether they were going to ban the killing of the unborn entirely.
	That was the status of the law up until 1973 when the Supreme Court On the basis of no precedent, on the basis of nothing in the constitutional text, on the basis of no real logic, decided to simply usurp the issue, and then top-down, a bunch of non-elected judges decided that they were going to decide the issue for all of America.
	And they put in place this ridiculous viability standard that had nothing to do with reality, and then fast-forward to Planned Parenthood versus Casey, and they put in place this undue burden standard, which again had nothing to do with the text of the Constitution, or anything to do with the nation's history, or biology, or anything.
	So, last night Politico leaked that this decision by Samuel Alito has a majority support and is going to strike down Roe vs. Wade.
	The leak is an unbelievable breach of every ethic the Supreme Court has ever held onto.
	It's insane.
	I mean, it's a crazy, crazy thing.
	Here's what Politico wrote.
	The Supreme Court has voted to strike down the landmark Roe vs. Wade decision according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico.
	The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision, Planned Parenthood v. Casey, that largely maintained the right.
	Now, the fact that this was leaked is insane.
	No draft decision in the history of the court has been disclosed publicly while a case was still pending, according to Politico.
	Never.
	Never ever.
	And it dramatically undermines legitimacy of the court because when you have draft decisions that are now being circulated, the idea is, and there's only one reason this happened, and I guarantee you 100% this came from some clerk on the left of the aisle.
	This came from I would imagine one of Justice Sonia Sotomayor's clerks who decided to be a hero of the Republic and leak out the draft majority decision in the desperate hope that one of two things would happen.
	One, the public would bring such extraordinary pressure to bear on the justices voting in favor of Alito's opinion that one of them switched over.
	They were able to leverage threats, threats of violence, intimidation against these justices to get one of them to flip.
	Or two, you got Democrats in the Senate and the House and in state legislatures everywhere to immediately snap into place and start passing extraordinarily intrusive pro-abortion laws.
	And you're starting to see this happen, right?
	Democrats are already saying, well, we should just kill the filibuster and we should pass a federal law enshrining a right to abortion.
	That isn't going to happen, but that is what the call is from the left side of the aisle.
	That was the purpose of the leak.
	The leak is deliberately made in order to put these Supreme Court justices in danger and to jog Democrats to go ahead and pass some sort of federal law making abortion the law of the land from the federal legislative level.
	That's what this was designed to do.
	The person who did this should be prosecuted to the fullest extent of the law, to the extent that they've broken the law.
	You would imagine that this is a leak of certain classified information.
	I don't mean national security classified.
	I mean that when you are in a position with the federal government, you have to sign contracts that mean that you are not allowed to make public the private information that exists at the level of the government.
	This is true in virtually every government agency.
	At the very least, this is civil liability for the person who leaked this majority opinion.
	And it could theoretically be criminal.
	It should be referred to the FBI and the DOJ for full-scale investigation.
	Justice Roberts needs to lead the way on that.
	And if there's any evidence whatsoever that the clerk in this particular case did this at the behest of the justice, whichever justice allowed for this, if that's what happened here, that justice needs to be impeached.
	And that would be true no matter which side of the aisle we were talking about here.
	Now, the left, of course, will make the leaker the hero of the republic because, as we know, the left is perfectly fine with illegal leaks so long as those illegal leaks cut in their favor.
	They're not a fan of totally non-illegal leaks like, say, Hunter Biden's laptop, but they are a very big fan of illegal leaks that harm Republicans and completely baseless leaks that harm Republicans.
	Totally fine with it.
	IRS leaks of tax information, totally fine with it.
	They're fine with disseminating the completely unverified Steele dossier for years on end in order to prop up a false narrative that Donald Trump was a stooge of the Russians.
	When it comes to a leak like this, you will imagine that this will be treated as heroism by the left.
	But the bottom line is, this sort of leak dramatically undermines the court.
	No question about it.
	And it is designed, once again, to bring pressure on Supreme Court justice, which just demonstrates, for the left, the rule of law doesn't mean crap.
	They don't care about the rule of law.
	They never have cared about the rule of law.
	When they say that they care about the rule of law and quote-unquote democracy, what they mean is, we want our way.
	Period.
	And if that means that we breach the rule of law by having people leak out confidential Supreme Court internal draft decisions, and again, it's a draft decision, which means that it was likely going to change before it was finally issued.
	That's the purpose of a draft.
	It's that it can be circulated, and then you have dissents written, and then the majority usually responds to the dissents.
	Okay, so this is not the final form of the opinion, even if this had been the basis of the opinion that eventually was issued by the court.
	The purpose is the intimidation.
	I mean, this is, it is illegal.
	It dramatically undermines the legitimacy of the Supreme Court and the Supreme Court system completely.
	And of course, then you have the left saying we should kill the filibuster entirely and we should just cram through a law.
	Slow clap for all of the norms of democracy must be upheld crew.
	Also of note, as we'll get to in a little while, Democrats are shrieking to the heavens, rending their garments, wailing, wailing, Pouring, wearing staff cloth, pouring ashes upon their heads over the possibility that this issue is going to be returned to the states.
	They're saying this is the death of democracy.
	Just a quick definitional point.
	When voters get to vote on things, that's democracy.
	So the Supreme Court saying that voters now get to vote on things.
	That is not the death of democracy.
	That's a restoration of democracy.
	We'll get into the insanity of somebody actually leaking an undecided Supreme Court decision in one second.
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	According to Politico, the unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
	A draft opinion offers an extraordinary window into the justice's deliberation.
	Some court watchers predicted the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent.
	That was my opinion.
	I thought that the court would probably split the baby literally and figuratively here.
	A person familiar with the court's deliberations Said that four of the other Republican-appointed justices, Thomas, Gorsuch, Kavanaugh, and Barrett, had voted with Leto in conference among the justices after hearing oral arguments in December, and that lineup remains unchanged as of this week.
	Apparently, the three Democratic-appointed justices Breyer, Sotomayor, and Kagan were working on one or more dissents.
	Justice Roberts, it was unclear which way he was going to go on this, but apparently he had not voted to join the majority of opinion, of course, because what else can you expect from one of the worst Republican picks for justice of the last 30 years?
	The document, labeled as a first draft of the majority opinion, included a notation that it was circulated among the justices on February 10th.
	A Supreme Court spokesperson declined to comment or make another representative of the court available to answer questions.
	The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws.
	The disclosure of the draft of Alito's majority opinion, a rare breach of Supreme Court secrecy and tradition around deliberation, comes as all sides in the abortion debate are girding for the ruling.
	The Chief Justice typically assigns majority opinion when he is in the majority.
	When he is not, that decision is typically made by the most senior justice in the majority.
	Okay, so the leak is a major story.
	It is not nearly as much of a major story as the opinion itself.
	So if, in fact, the Supreme Court is about to overturn Roe versus Wade, it is going to be A bomb in the middle of American politics.
	Now, the long-term effects are going to be really salutary for American politics because one of the things that's going to happen here is that the states are then going to pick up where they left off, meaning Florida and Texas and Alabama and Mississippi are all going to regulate abortion differently than California or New York, which is the state of the law prior to Roe versus Wade.
	The big sort that has already been underway in the United States is going to continue.
	Red states will get redder.
	Blue states will get bluer.
	That is not a bad thing.
	A federalist structure will return.
	Because, let's be real about this, there is no widespread majority support on the federal level for a constitutional amendment to protect the lives of the unborn, nor does the left have the necessary support to pass a constitutional amendment to enshrine abortion into the Constitution as an actual piece of amended law.
	So this will likely remain a state-level issue for some time, which is, on a federalist level, where it should be.
	On a moral level, I would certainly prefer a constitutional amendment to protect human life.
	But on a political level, the idea that's going to happen at the federal level, I think, is vanishingly small.
	Which means, again, that if you like living in Texas, you get to live in Texas.
	And if you want to live in abortion land California, you certainly can live in abortion land California.
	And that will be the way that this goes.
	In just one second, I'm going to get to the actual draft decision by Justice Samuel Alito.
	It's really important, so we're going to go through it in detail first.
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	So we're going to go through the actual text of Alito's draft decision.
	It's pretty clearly real.
	It reads exactly like Alito's decisions.
	I'm a court watcher.
	I read a lot of opinions.
	It reads exactly like Alito's writing.
	The logic is impeccable.
	It is very clean-cut decision.
	We're going to go through that, and then we'll get to the left-wing response to all of this.
	Which again, when it comes to the violation of law and legal norms, the left is perfectly willing to do all that so long as they can get what they want.
	That's why when the left complains about the violation of norms, just understand, they don't give two craps about norms.
	They don't care about norms whatsoever.
	For them, it is all about just getting what they want with any tool at their disposal.
	Okay, so here is what Justice Alito writes in this draft majority opinion quote, abortion presents a profound moral issue on which Americans hold sharply conflicting views.
	Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life.
	Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality.
	So others in a third group think abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
	For the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its citizens.
	Then, in 1973, this court decided in Roe v. Wade Even though the Constitution makes no mention of abortion, the court held that it confers a broad right to obtain one.
	It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant, e.g.
	its discussion of abortion in antiquity, to the plainly incorrect, e.g.
	its assertion that abortion was probably never a crime under the common law.
	After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature, writes Alito.
	Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve viability, i.e.
	the ability to survive outside the womb.
	Although the court acknowledged that states had a legitimate interest in protecting potential life, it found that this interest could not justify any restrictions on previability abortions.
	The court did not explain the basis for this line.
	Even abortion supporters have found it hard to defend Roe's reasoning.
	One prominent constitutional scholar wrote, he would vote for a statute very much like the one the court ended up drafting if he were a legislator, but his assessment of Roe was memorable and brutal.
	Roe was not constitutional law at all, and gave almost no sense of an obligation to try to be.
	The person who wrote that was John Hart Eli.
	At the time of Roe, 30 states still prohibited abortion at all stages.
	In the years prior to that decision, about a third of the states had liberalized their laws, but Roe abruptly ended that political process.
	It imposed the same highly restrictive regime on the entire nation and effectively struck down the abortion laws of every single state.
	As Justice Byron White aptly put it in his dissent, the decision represented the exercise of raw judicial power and it sparked a national controversy that has embittered our political culture for half a century.
	Eventually, writes Alito, in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the court revisited Roe, but the members of the court split three ways.
	Two justices expressed no desire to change Roe in any way, for others wanted to overrule the decision in its entirety.
	The three remaining justices who jointly signed the controlling opinion took a third position.
	Their opinion did not endorse Roe's reasoning.
	It even hinted that one or more of its authors might have reservations about whether the Constitution protects a right to abortion.
	But the opinion concluded that stare decisis, precedent, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe's central holding, that a state may not constitutionally protect fetal life before viability, even if that holding was wrong.
	Anything less, the opinion claimed, would undermine respect for the court and the rule of law.
	Paradoxically, the judgment in Casey did a fair amount of overruling.
	Several important abortion decisions were overruled in total.
	Roe itself was overruled in part.
	Casey threw out Roe's trimester scheme and substituted a new rule of uncertain origin under which states were forbidden to adopt any regulation that imposed an undue burden on a woman's right to have an abortion.
	The decision provided no clear guidance about the difference between a due and an undue burden, but the three justices who authored the controlling opinion called the contending sides of a national controversy to end their national division by treating the court's decision as the final settlement of the question of the constitutional right to abortion.
	As has become increasingly apparent in the intervening years, Casey did not achieve that goal, understatement of the year there from Justice Alito.
	Americans continue to hold passionate and widely divergent views on abortion.
	State legislatures have acted accordingly.
	Some have recently enacted laws allowing abortion, with few restrictions at all stages of pregnancy.
	Others have tightly restricted abortion beginning well before viability.
	In this case, 26 states have expressly asked the court to overrule Roe and Casey and allow the states to regulate or prohibit pre-viability abortion.
	Before us now is one such state law.
	The state of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy, several weeks before the point at which a fetus is now regarded as viable outside the womb.
	In defending this law, the state's primary argument is that we should reconsider and overrule Roe and Casey and once again allow each state to regulate abortion as its citizens wish.
	On the other side, respondents and the Solicitor General, that's the Biden administration or the Or the White House.
	This was the issue, by the way.
	Roe and Casey, they contend that the Mississippi law cannot stand if we do so.
	Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, would be no different than overruling Casey and Roe entirely.
	They contend that no half measures are available and that we must either reaffirm or overrule Roe and Casey.
	Right, this was the issue, by the way, right?
	In Mississippi case, basically both sides were arguing the same thing.
	From flip sides, the people who are arguing in favor of the Mississippi law said, yes, we understand that this law challenges Roe versus Wade and the viability structure of Roe versus Wade and Planned Parenthood versus Casey.
	We know that you should overrule Roe.
	And the left said, this law challenges Roe.
	You have to overrule it because it violates Roe.
	Nobody said you can still uphold Roe and uphold the law.
	And this meant that the court had to vote one way or the other, and apparently they are now going to vote in favor of overruling Roe, which of course is the correct decision.
	Alito says, we hold that Roe and Casey must be overruled.
	The Constitution makes no reference to abortion.
	No such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the Due Process Clause of the 14th Amendment.
	That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be deeply rooted in this nation's history and tradition, and implicit in the concept of ordered liberty.
	Washington v. Glugsberg, 1997.
	The right to abortion does not fall within this category.
	Until the latter part of the 20th century, such a right was entirely unknown in American law.
	Indeed, when the 14th Amendment was adopted, three-quarters of all states made abortion a crime at all stages of pregnancy.
	The abortion right is also critically different from any other right the court has held to fall within the 14th Amendment's protection of liberty.
	Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage.
	But abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decision calls fetal life and what the law now before us describes as an unborn human being.
	So in other words, all the attempts by the left to say that this is about private sexual decisions of people, or that this is about using birth control, it is not.
	It involves fetal life.
	Even Roe and Casey acknowledge that.
	It is just a question, in those particular cases, of whether there is a superseding right that gets rid of fetal life.
	And Alito says no, there is no such constitutional protection.
	Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority.
	Roe was egregiously wrong from the start.
	Very strong language here from Justice Alito and absolutely correct.
	Its reasoning was exceptionally weak.
	The decision has had damaging consequences.
	Far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.
	It's time to heed the Constitution and return the issue of abortion to the people's elected representatives.
	The permissibility of abortion and the limitations upon it are to be resolved like most important questions in our democracy by citizens trying to persuade one another and then voting.
	That'd be Justice Scalia's concurrence in Casey.
	This is what the Constitution and the rule of law demand.
	Okay, so the opinion continues, and it gets pretty detailed.
	We're going to go through some of the important parts of the decision.
	Again, this is the draft decision, so this is not what has actually come down from the Supreme Court as of yet.
	It was leaked out by presumably an activist inside Justice Sotomayor's chambers or Elena Kagan's chambers or Justice Breyer's chambers until he officially steps down from the court.
	It is a massive breach of the law as well as of the Supreme Court norm that this stuff is supposed to remain behind closed doors until the actual decision comes out.
	So it's not to create safety threats for members of the Supreme Court or weighing in on some of those contentious issues in American life.
	But if this decision ends up being the basis for the full scale decision that's likely to come down in the next few weeks, it will be earth shattering in constitutional terms.
	It will totally change the nature of the playing field in politics in the United States in a very good way, by the way, because again, it is going to revamp how this stuff is done.
	It won't be done at the federal level anymore.
	It will go back to the state level, which is where it should be.
	If the country has a future at all, it's going to be in a federalist structure that returns these questions to the state level, which is what the Supreme Court is apparently about to do.
	More from the Aledo decision coming up.
	It really is important.
	We're going to go through all of it.
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	Okay, so Justice Alito continues.
	We begin by considering the critical question of whether the Constitution properly understood confers a right to obtain an abortion.
	Skipping over that question, the controlling opinion in Casey reaffirmed Roe's central holding based solely on the doctrine of stare decisis, which means precedent.
	Stare decisis literally means the case has been decided.
	But as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.
	We therefore turn to the question that Casey's plurality did not consider.
	And we address that question in three steps.
	First, we explain the standard that our cases have used in determining whether a 14th Amendment reference to liberty protects a particular right.
	Second, we examine whether the right at issue in this case is rooted in our nation's history and tradition, and whether it is an essential component of what we have described as ordered liberty.
	Finally, we consider whether a right to obtain an abortion is supported by other precedents.
	So it begins with the language of the instrument, quote, Constitution analysis must begin with the language of the instrument, which offers a fixed standard for ascertaining what our founding document means.
	The Constitution makes it no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show the right is somehow implicit in the constitutional text.
	Roe, however, was remarkably loose in its treatment of the constitutional text.
	It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
	And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions.
	The First, Fourth, Fifth, Ninth, and Fourteenth Amendments, which was the Supreme Court's way of saying in Roe v. Wade that we have no basis for this, so we are just going to throw garbage against the wall and see what sticks.
	And as Alito points out, there's nothing in any of those amendments that suggests a right to an abortion.
	He says the underlying theory, on which the final argument that the left makes on this, that the 14th Amendment due process clause creates a liberty interest in abortion, The underlying theory on which this argument rests, that the 14th Amendment's Due Process Clause provides substantive as well as procedural protection for liberty, has long been controversial.
	The so-called Substantive Due Process Clause is a contradiction in terms.
	The 14th Amendment says that Congress cannot make any law abridging liberty without due process of law.
	Right, so due process of law was meant to mean you had to go through legislative channels.
	You couldn't just declare.
	And they would go through a due process of law.
	Then the Supreme Court declared, ironically, in Dred Scott, the worst Supreme Court decision in American history outside of Roe, in which it said that the Constitution said that black people were not citizens of the United States and could not be citizens of the United States.
	That due process meant you could not pass a law granting black people their freedom in the United States and overruling the Fugitive Slave Law.
	That was what Dred Scott said because of substantive due process.
	Substantively, people will be deprived of their right to property if Congress passed a law through its normal mechanisms.
	Okay?
	Substantive due process is an idiotic idea.
	It has no predicate in the actual constitutional text.
	It is a contradiction in terms.
	Saying substantive due process is the equivalent of saying red sky blue.
	It just doesn't make any sense.
	But, says Alito, our decisions have held that the Due Process Clause protects two categories of substantive rights.
	The first consists of rights guaranteed by the First 8 Amendments.
	These amendments originally applied only to the federal government.
	This Court has held the Due Process Clause of the 14th Amendment incorporates the great majority of those rights and thus makes them equally applicable to the state.
	What you'll notice when you look at the Constitution is that the First Amendment, for example, says Congress shall make no law abridging freedom of speech.
	Now, as you can imagine, when it says Congress shall make no law abridging freedom of the speech, it does not apply to states or local governments.
	Congress is a specific term, meaning a specific body that makes law at the federal level.
	The Supreme Court spent a couple of hundred years, quote-unquote, incorporating First Amendment rights into state law.
	What they said is that the 14th Amendment, passed after the Civil War, meant to take federal rights and then jam them down on the states so that the federal government could step in and enforce them on the states.
	Which is not true, but the Supreme Court has been doing that for a long time, says Justice Alito.
	The second category, which is the one in question here, comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
	In deciding whether a right falls into either of these categories, the Court has long asked whether the right is, quote, deeply rooted in our history and tradition, and whether it is essential to our nation's scheme of ordered liberty.
	Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the liberty protected by the Due Process Clause because the term liberty alone provides little guidance.
	Liberty is a capacious term.
	As Lincoln once said, quote, we all declare for liberty, but in using the same word, we do not all mean the same thing.
	In a well-known essay, Isaiah Berlin reported that historians of ideas had cataloged more than 200 different senses in which the terms had been used.
	And interpreting what is meant by the 14th Amendment's reference to liberty, we must guard against the natural human tendency to confuse what that amendment protects with our own ardent views about the liberty that Americans should enjoy.
	That is why the court has long been reluctant to recognize rights that are not mentioned in the Constitution.
	In other words, even if you're going to say that the 14th Amendment due process clause means that certain liberties guaranteed at the federal level must also be guaranteed at the state level, That generally is restricted to the liberties explicitly mentioned in the Constitution.
	If you're going to simply say, whatever liberty you please, is now in the Constitution, because you want it to be there, and then jam it down at the state level via the Due Process Clause, you're not supposed to do that.
	According to Justice Alito, quote, substantive due process has at times been a treacherous field for this court.
	That is a quote from a case called Moore v. East Cleveland, 1977.
	It has sometimes led the court to usurp authority, the Constitution trusts, to the people elected representatives.
	As the court cautioned in Glucksburg, quote, we must exercise the utmost care whenever we are asked to break new ground in this field.
	Lest the liberty protected by the due process clause be subtly transformed into the policy preferences of the members of this court.
	On occasion, when the Court has ignored the appropriate limits imposed by respect for the teachings of history, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.
	The Court must not fall prey to such an unprincipled approach.
	Instead, guided by the history and tradition that map the essential components of our nation's concept of ordered liberty, we must ask what the 14th Amendment meant by the term liberty.
	When we engage in that inquiry in the present case, the clear answer is the 14th Amendment does not protect the right to an abortion.
	So in other words, even if you're going to claim that liberties not mentioned in the Constitution are guaranteed by the 14th Amendment, there is no basis, historically speaking, for suggesting that such liberties encompass abortion.
	Says Alito, until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.
	Zero.
	None.
	No state constitutional provision had recognized such a right.
	Until a few years before Roe was handed down, no federal or state court had recognized such a right, nor had any scholarly treatise of which we are aware.
	And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published just a few years before Roe.
	That was an article in like the North Carolina Law Review in 1968.
	Not only was there no support for such a constitutional right until shortly before Roe, abortion had long been a crime in every single state.
	At common law, abortion was regarded as unlawful and could have had very serious consequences at all stages.
	American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.
	By the time of the adoption of the 14th Amendment, three-quarters of the state had made abortion a crime at any stage of pregnancy.
	The remaining states would soon follow.
	So if you're going to argue the 14th Amendment protects abortion, you're going to have to explain why every single state had laws criminalizing abortion at the time of the 14th Amendment.
	Roe either ignored or misstated this history.
	Casey declined to reconsider Roe's faulty historical analysis.
	It is important, therefore, to set the record straight.
	And then Alito goes into a very long disquisition on the history of abortion law in the United States.
	And he says, in sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice.
	Moreover, We are aware of no common law, case, or authority, and the parties have not pointed to any that remotely suggest a positive right to procure an abortion at any stage of pregnancy.
	In other words, the argument made by Roe, that there is a right to obtain an abortion, no one makes that argument.
	There were some states in which abortion was more legal than others, but nobody argued you had an actual right to abortion.
	No one, historically speaking.
	And then, he continues, he gets into more of the history, he talks about the so-called quickening rule, which was the idea that you couldn't be punished before the quickening, and the quickening was the movement of baby inside the womb.
	That science has been obviated by actual science, right?
	We now know what the baby's doing inside the womb long before you feel the baby kick.
	As Alito notes, at any rate, the original ground for the quickening rule is of little importance for the present purposes because the rule was abandoned in the 19th century.
	During that period, treatise writers and commentators criticized the quickening distinction as neither in accordance with the result of medical experience nor with the principles of the common law.
	Instead, in 1803, for example, the British Parliament made abortion a crime at all stages of pregnancy.
	In this country, during the 19th century, the vast majority of the states enacted statutes criminalizing abortion at all stages of pregnancy.
	The overwhelming consensus endured until the day Roe was decided.
	At that time, also by the Roe court's own count, a substantial majority, 30 states, still prohibited abortion at all stages, except to save the life of the mother.
	And though Roe discerned a trend toward liberalization in about one-third of the states, those states still criminalized some abortions and regulated them more stringently than Roe would allow.
	In short, the court's opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.
	That is the dissent of Justice White in Thornburg.
	Another abortion case.
	The inescapable conclusion, says Alito, is that a right to abortion is not deeply rooted in the nation's history or traditions.
	On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1793.
	The court in Roe could have said of abortion exactly what Glugsberg said of assisted suicide.
	Quote, attitudes towards abortion have changed since Bracton, but our laws have consistently condemned and continue to prohibit that practice.
	Respondents and their amici, being the people who file briefs in favor of abortion, have no persuasive answer to this historical evidence, says Alito.
	Not only are respondents in their amici unable to show that a constitutional right to abortion was established when the 14th Amendment was adopted, they have found no support for the existence of an abortion right that predates the latter part of the 20th century, no state constitutional provision, no statute, no judicial decision, no learned treatise.
	The earliest sources called to our attention are a few district court and state court decisions decided shortly before Roe and a small number of law review articles from the same time period.
	Coming up, we'll get to more of Justice Samuel Alito's draft majority decision.
	Again, it's not final yet.
	It has not come out yet, but it has been leaked.
	We'll go through it.
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	So Alito's opinion, we're going through the details of the draft opinion by Justice Samuel Alito, which may very well become the law of the land, which would again, remove this entire abortion issue from the purview of the Supreme Court and return it to the states, which is where it originally was.
	And he suggests, there's ample evidence that the passage of these laws was spurred by a sincere belief that abortion kills a human being.
	So the left has tried to argue that the reason abortion laws existed was to harm women or some such nonsense.
	And Alito says that's just garbage.
	He says, one may disagree with this belief, and our decision is not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests.
	But even Roe v. Casey did not question the good faith of abortion opponents.
	Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend the abortion right is an integral part of a broader entrenched right.
	Roe termed it a right to privacy, and Casey described it as the freedom to make, quote, intimate and personal choices that are contrary to personal dignity and autonomy.
	Casey elaborated, quote, this is one of the worst quotes in Supreme Court history, I hate this quote so much I cannot even express how dumb and stupid and ridiculous on every philosophical level this quote is, quote, K.C.
	said, quote, at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, of the mystery of human life.
	Which, I'm sorry, is just the stupidest pile of garbage I have ever heard in my entire life.
	The idea that constitutional liberty protects your right to manifest any interpretation of liberty you seek is idiotic in the extreme, which is what Alito is about to say.
	Quote, the court did not claim that this broadly framed right is absolute.
	No such claim would be plausible.
	While individuals are certainly free to think and to say what they wish about existence, meaning the universe, and the mystery of human life, they are not always free to act in accordance with those thoughts, licensed to act on the basis of such beliefs, and it corresponds to one of many understandings of liberty, but it is certainly not ordered liberty.
	That is absolutely correct.
	I mean, like, imagine, for example, you define the meaning of mystery of human life by saying what Slaveholder said in 1850, Black people are not human life.
	The Constitution does not protect that sort of redefinition of human life, obviously.
	According to Alito, order and liberty sets limits and defines the boundary between competing interests.
	Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed potential life.
	But the people of the various states may evaluate those interests differently.
	In some states, voters may believe the abortion right should be even more extensive than the right that Roe and Casey recognize.
	Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an unborn human being.
	Our nation's historical understanding of order and liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.
	Again, this goes directly to the left's idiotic argument that it is anti-democratic for the court to say, we're not part of this anymore.
	He's literally saying New York can do abortion law and Mississippi can do abortion law and they don't have to vote the same way.
	And the left is losing their, they are losing their minds over it.
	Alito continues, nor does the right to an abortion have a sound basis in precedent.
	Attempts to justify abortion through appeals to a broader right to autonomy and to define one's concept of existence prove too much.
	These criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
	None of those rights has any claim to being deeply rooted in history.
	What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledge.
	Abortion destroys what those decisions call potential life and what the law at issue in this case regards as the life of an unborn human being.
	None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.
	They are therefore inapposite.
	They do not support the right to obtain an abortion.
	By the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
	Okay, this is Alito going out of his way to say that because we are overruling Roe, that does not mean that we're going to overrule Obergefell.
	It does not mean that we're going to re-examine same-sex marriage.
	That is what Alito is saying right there.
	He is saying this case is different, Roe is different, because you may argue that there is a constitutional right to same-sex marriage on the basis of some unenumerated right to privacy.
	I think Obergefell is one of the worst decided Supreme Court cases in American history.
	It has, again, no basis in law or precedent, but Alito is explicitly distinguishing between cases like Obergefell.
	He's saying that we're not talking about that here.
	We are talking about a case in which even Rover and Casey suggest that there is a countervailing interest with regard to potential human life, as they put it in that case, or as better philosophers would put it, human life with potential.
	Alito continues, defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the underlying moral question. They do contend that changes in society require the recognition of a constitutional right to obtain an abortion.
	Without the availability of abortion they maintain, people will be inhibited from exercising their freedom to choose the types of relationship they desire. Women will be unable to compete with men in the workplace and in other endeavors. Americans who believe that abortion should be restricted press countervailing arguments about modern developments.
	They note that attitudes about the pregnancy of unmarried women have changed drastically, that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or governmental assistance, that states have increasingly adopted safe haven laws, which generally allow women to drop off babies anonymously, that a woman who puts her newborn up for adoption today has little reason to fear the baby will not find a suitable home,
	They also claim many people now have a new appreciation of fetal life, and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.
	Both sides make important policy arguments.
	But supporters of Roe and Casey must show this court has the authority to weigh those arguments and decide how abortion may be regulated in the states.
	They've failed to make that showing.
	We thus return to the power to weigh those arguments to the people and their elected representatives.
	Again, this is such easy, basic constitutional law.
	There are lots of policy arguments on both sides.
	Not our job to do policy arguments.
	Our job is to look at the Constitution and see if there's anything that prohibits legislatures from weighing in.
	The answer is no.
	Therefore, it goes back to the states.
	Then, Alito moves on to the question of stare decisis.
	Now, stare decisis, the question of precedent, basically when the left says that they like precedent, they mean they like precedent that upholds what they want.
	So, Roe vs. Wade is a precedent.
	However, the Supreme Court case line that suggested Bowers vs. Hardwick, which suggested that there is no right to sodomy, that was bad precedent and needed to be overruled.
	So, in other words, the left constantly picks and chooses which precedent they think ought to apply.
	They love Roe because they love Roe, not because they think it's good precedent.
	And as Alito says, we have long recognized Stare Decisis is not an inexorable command.
	It is at its weakest when we interpret the Constitution.
	It has been said that it is sometimes more important that an issue be settled than that it be settled right.
	When it comes to the interpretation of the Constitution, the great charter of our liberties, which was meant to endure through a long lapse of ages, we place a high value on having the matter settled right.
	In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.
	An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend.
	Therefore, in appropriate circumstances, we must be willing to reconsider and, if necessary, overrule constitutional decisions.
	And he points out that Brown v. Board overruled Plessy v. Ferguson.
	And he pointed out that West Coast Hotel overruled Lochner v. New York.
	And he points out that there are a wide variety of constitutional decisions that overrule other bad constitutional decisions.
	As Alito says, no justice of this court has ever argued the court should never overrule a constitutional decision, but overruling a precedent is a serious matter.
	It is not a step that should be taken lightly.
	Our cases have attempted to provide a framework for deciding when a precedent should be overruled.
	They have identified factors that should be considered in making such a decision.
	In this case, five factors weigh strongly in favor of overruling Roe and Casey.
	The nature of the error, the quality of their reasoning, the workability of the rules they imposed, their disruptive effect on other areas of the law, and the absence of concrete reliance.
	And then Alito goes through each of these.
	He says, the nature of the court's error, an erroneous interpretation of the Constitution is always important.
	Some are more damaging than others.
	He says, Roe was all egregiously wrong and deeply damaging for reasons already explained.
	Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.
	Okay, so that is number one.
	It's just a bad decision.
	Two, the quality of the reasoning.
	He starts off with one, the nature of the court's error.
	This is a ridiculous and clear error.
	Two, the quality of the reasoning.
	Roe found that the Constitution implicitly conferred a right to obtain an abortion.
	It failed to ground its decision in text, history, or precedent.
	It relied on erroneous historical narratives.
	It devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution.
	It disregarded the fundamental difference between the precedents on which it relied and the question before the court. It concocted an elaborate set of rules with different restrictions for each trimester. It didn't explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedents, or any other cited source.
	The Casey plurality, well, reaffirming it rose at central holding, refrained from endorsing its reasoning because the reasoning sucks, basically.
	Also, the weaknesses in the reasoning are well known, is not grounded in anything resembling law.
	Not only did the scheme resemble the work of a legislature, the court made little effort to explain how these rules could be deduced from any of the sources that it cited.
	So in other words, there's no rationale for upholding Roe, none.
	It says what Roe did not provide was any cogent justification for the lines that it drew.
	Okay, so Alito continues along these lines.
	He says that there is no basis for the viability distinction in Roe versus Wade.
	He says, here is the court's entire explanation.
	Quote, with respect to the state's important and legitimate interest in potential life, a compelling point is at viability.
	This is so because the fetus then presumably has the capability of meaningful life outside the womb.
	As Lawrence Tribe, who's a lefty, who likes Roe, has written, clearly this mistakes a definition for a syllogism.
	The definition of a viable fetus is one that is capable of surviving outside the womb.
	Why is this point the point at which the state's interest becomes compelling?
	If, as Rowe held, the state's interest in protecting prenatal life is compelling after viability, why isn't that interest equally compelling before viability?
	Rowe did not say, no explanation is apparent.
	This arbitrary line has found no support among philosophers and ethicists who have attempted to justify a right to abortion.
	Some have argued a fetus should not be entitled to legal protection until it acquires the characteristics they regard as defining what it means to be a person.
	Among the characteristics that have been offered as the essential attributes of personhood are sentience, self-awareness, and the ability to reason, or some combo thereof.
	By this logic, says Alito, there'd be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protections as persons.
	But even if one takes the view personhood begins when a certain attribute or a combination of attributes is acquired, it's very hard to see why viability marks the point at which personhood begins.
	The viability line makes no sense.
	It is telling that other countries almost uniformly eschew such a line.
	The court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the states less freedom to regulate abortion than the majority of Western democracies enjoy.
	By the way, this is an interesting point here and a good point from Alito.
	America's abortion law is far more liberal.
	than nearly every European country.
	Nearly all of them.
	All in all, says Alito, Roe's reasoning was exceedingly weak.
	Academic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism.
	John Hart Eli famously wrote Roe was not constitutional law and gave almost no sense of an obligation to try to be.
	Archibald Cox, who served as Solicitor General under Kennedy, commented that Roe reads like a set of hospital rules and regulation, that neither historian, layman, nor lawyer will be persuaded are part of the Constitution.
	Lawrence Tribe wrote that even if there is a need to divide pregnancy into several segments with lines that clearly identify the limits of governmental power, interest balancing of the form the court pursues fails to justify any of the lines actually drawn.
	Mark Tushnet, again another lefty, termed Roe a totally unreasoned judicial opinion.
	This, of course, is correct.
	And then as Alito points out, when Casey revisited Roe almost 20 years later, very little of Roe's reasoning was even defended or preserved.
	The court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the 14th Amendment.
	The court did not reaffirm Roe's erroneous account of abortion history.
	None of the justices in the majority said anything about the history of the abortion right.
	As for precedent, the court relied essentially on the same body of cases Roe had cited.
	Thus, with respect to the standard grounds for constitutional decision-making, text, history, and precedent, Casey did not attempt to bolster Roe's reasoning.
	The court didn't even attempt to re-enshrine viability as the standard in Planned Parenthood v. Casey.
	Casey also deployed a novel version of the doctrine of stare decisis.
	This new doctrine did not account for the profound wrongness of the decision in Roe and placed great weight on an intangible form of reliance with little, if any, basis in prior case law.
	Stare decisis does not command the preservation of such a decision.
	And then Alito gets to the problem of workability.
	He points out that the standard in Planned Parenthood versus Casey is totally unworkable.
	The so-called undue burden standard.
	So Planned Parenthood versus Casey created a standard suggesting that you cannot pass a law that creates an undue burden on a woman seeking an abortion.
	Undue burden is a fudge phrase meaning nothing.
	As Alito points out, problems begin with the very concept of an undue burden.
	As Justice Scalia noted in his Casey dissent, determining whether a burden is due or undue is inherently standardless.
	The KC Plurality tried to put meaning into the underburden test by setting out three subsidiary rules.
	These rules create their own problem.
	The first rule is that a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
	But whether a particular obstacle qualifies as substantial is open to reasonable debate.
	In the sense relevant here, substantial means of ample or considerable amount, quantity, or size.
	Huge burdens are plainly substantial.
	Trivial ones are not.
	But in between these extremes, there's a wide gray area.
	This ambiguity is a problem.
	And the second rule, which applies at all stages of pregnancy, muddies things further.
	It states that measures designed to ensure the woman's choice is informed are constitutional so long as they do not impose an undue burden on the right.
	So, this means nothing.
	The third rule complicates the picture even more.
	Under that rule, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
	This rule contains no fewer than three vague terms.
	Unnecessary health regulations, substantial obstacle, and undue burden.
	In addition to these problems, as Alito, one more applies to all three rules.
	They call on courts to examine a law's effect on women, but a regulation may have a very different impact on different women, for a variety of reasons, including their place of residence, financial resources, family situations, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions.
	This is, of course, correct.
	You can say that it's an undue burden for a poor woman in Alabama not to be able to obtain an abortion.
	But is it an undue burden for a rich lady not to be able to do that?
	She can just get on a plane and go to New York.
	Casey provided no clear answer to these questions, says Alito.
	It said a regulation is unconstitutional if it imposes a substantial obstacle in a large fraction of cases in which it is relevant.
	But there's no clear line between a fraction that is large and one that is not.
	So basically they just created a mush rule.
	And then finally, the notion that this entire system of law was going to quiet the criticism, that this was going to create some sort of stability in the law is just not true.
	Casey's undue burden test has proved to be unworkable.
	Plucked from nowhere, it seems calculated to perpetuate a given trial litigation before judges assign an unwieldy and inappropriate task.
	Continued adherence to that standard would undermine, not advance, the even-handed, predictable, consistent development of legal principles.
	Alito then gets into other areas of the law.
	He says Ron Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions.
	Because basically it's led to circuit courts disagreeing about dilation and extraction procedures, about an increase of time needed to reach a clinic, about abortions performed because of race, sex, or disability.
	The court's abortion cases have diluted the strict standard for facial constitutional challenges.
	They've ignored the court's third-party standing doctrine.
	They've disregarded standard res judicata principles.
	They've flouted the ordinary rules on the severability of unconstitutional provisions.
	They've distorted First Amendment doctrines.
	So in other words, all of this idiocy has created a mess in the law.
	And finally, Alito gets to the left's most, I think, powerful argument, which is that there are too many women who are relying on abortion law.
	And here is what Alito says.
	He says, we last consider whether overruling Roe and Casey will upend substantial reliance interests.
	Traditional reliance interests arise when advanced planning of great precision is most obviously a necessity.
	In Casey, the controlling opinion conceded those traditional reliance interests were not implicated because getting an abortion is generally unplanned activity.
	Reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
	Normally, a reliance interest is you shake up a law, for example, a body of common law provisions with regard to contract.
	You shake that up, and in doing so, you have now completely shaken up people's business interests that have to be planned months and years in advance.
	It doesn't apply to abortion.
	Abortion is typically decided on, like, today.
	You decide you want an abortion, today.
	You decide that you want to get pregnant, today.
	So in other words, the minute that the law changes, you now change your calculation.
	No one is relying on this to make future decisions.
	Decisions are getting made, like, now.
	For these reasons, says Alito, we agree with the Casey plurality, conventional concrete reliance interests are not present here.
	Unable to find reliance in the conventional sense, a controlling opinion in Casey perceived a more intangible form of reliance, and wrote that people had organized intimate relationships and made choices that defined their views of themselves and their places in society in reliance on the availability of abortion, in the event contraception should fail, and that the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.
	But this court is ill-equipped to assess generalized assertions about the national psyche.
	Casey's notion of reliance finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in cases involving property and contract rights, as I suggested.
	The Casey court basically just said, well, you know, the law has impact on you and that means reliance.
	That's true of every single law.
	There is no law in American history that does not create the kind of reliance interest the Casey court talked about, which is why they were using bad law.
	The contending sides in this case make compassion and conflicting arguments about the effects of the abortion right on the lives of women.
	The contending sides also make conflicting arguments about the status of the fetus.
	This court has neither the authority nor the expertise to adjudicate those disputes.
	The Casey plurality's speculations and weighing of the relative importance of the fetus and mother represent a departure from the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.
	And as Alito points out, even in the so-called brutal, horrible, no good, very bad red states, a majority of voters were women in the last election cycle.
	So like in Mississippi, women who make up about 51% of the population of Mississippi were 55.5% of the voters who cast ballots.
	He says, nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
	He keeps saying that over and over and over, because what he is saying over and over and over is this has nothing to do with, for example, Obergefell.
	He says, having shown that traditional stare decisis factors do not weigh in favor of retaining Rowe or Casey, we have to address one final argument that featured prominently in the Casey plurality opinion.
	This argument was cast in different terms, but stated simply, it was essentially as follows.
	The American people's belief in the rule of law would be shaken if they lost respect for this court as an institution that decides important cases based on principle, not social and political pressures.
	There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision like Roe.
	A decision overruling Roe would be perceived as having been made under fire and as a surrender to political pressure.
	And therefore, the preservation of public approval of this court weighs heavily in favor of retaining Roe.
	This analysis, says Alito, starts out on the right foot but ultimately veers off course.
	The Casey plurality was certainly right, and it is important for the public to perceive that our decisions are based on principle.
	We should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.
	But we cannot exceed the scope of our authority under the Constitution.
	We cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work.
	This is true when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.
	As Chief Justice Rehnquist explained, the judicial branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the Constitution.
	The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.
	In suggesting otherwise, a casey plurality went beyond the court's role in our constitutional system.
	The KC plurality called on the contending sides of a national controversy to end their national division and claim the authority to impose a permanent settlement of the issue of a constitutional abortion right simply by saying that the matter was closed.
	That unprecedented claim exceeded the power vested in us by the Constitution.
	As Alexander Hamilton famously put it, the Constitution gives the judiciary neither force Nor will.
	The Federalist 78.
	Our sole authority is to exercise judgment, which is to say, the authority to judge what the law means and how it should apply to the case at hand.
	The court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles.
	A precedent of this court is subject to the usual principles of stare decisis, under which adherence to precedence is the norm, but not in inexorable command.
	If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law.
	That is not how stare decisis operates.
	The Cayce plurality also misjudges the practical limits of this court's influence.
	Roe did not succeed in ending division on the national issue of abortion.
	On the contrary, Roe inflamed a national issue that has remained bitterly divided for the past half century.
	Neither decision has ended debate over the issue of a constitutional right to obtain an abortion.
	Indeed, 26 states expressly asked us to overrule Roe v. Casey and to return the issue of abortion to the people and their elected representatives.
	This court's inability to end debate on the issue should not have been surprising.
	This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.
	Whatever influence the court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise raw judicial power.
	We do not pretend to know how our political system or society will respond to today's decision.
	Even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.
	We can only do our job, which is to interpret the law, apply long-standing principles of stare decisis, and decide this case accordingly.
	We therefore hold the Constitution does not confer a right to abortion, Roe and Casey must be overruled, the authority to regulate abortion must be returned to the people, and their elected representatives.
	And then, Alito concludes, Under our precedence, rational basis review is the appropriate standard for such challenges.
	Rational basis review is the idea that unless a law is completely irrational, it can't be struck down.
	So before, the court had basically said abortion was a fundamental right, we can strike it down, any abortion law, for basically any reason.
	Now, the court would be saying, if this is the decision, the court would be saying rational basis review, in other words, you pass an abortion law, we are going to presumptively assume that it is rational, basically.
	That respect for a legislature's judgment applies even when the laws it issued concern matters of great social significance and moral substance.
	A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity.
	It must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests.
	These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.
	And so they uphold the Mississippi law in this opinion.
	And Alito finishes, quote, we end this opinion where we began.
	Abortion presents a profound moral question.
	The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.
	Roe and Casey irrigated that authority.
	We now overrule those decisions and return that authority to the people and their elected representatives.
	So this would be a groundshaking decision if this is how it comes down.
	It would be ground-shaking, but it would be good in the long run for the United States, particularly because, again, it would remove from the federal level a question that was at the state level.
	It would take it out of the hands of the Supreme Court.
	It would re-legitimize the Supreme Court, which has been a political body for decades, thanks to the left writing its own prescriptions into the Constitution without any reference, without any rationale.
	This would be very, very good for the country.
	The left is losing its mind.
	They are losing it.
	And the reason that they are losing it more than anything else is they are not getting their way.
	And so immediately upon this story breaking, a crowd started to gather at the Supreme Court.
	They'd put barriers outside the Supreme Court.
	They put actual physical barriers outside the Supreme Court.
	People started pushing up.
	Remember that time when January 6th was a coup?
	Remember that time when it was a threat to the rule of law?
	What do you think it is when the entire media circulate an unreleased judicial opinion in an attempt to create public threats against Supreme Court justices?
	What exactly is that?
	What exactly is that?
	The head of the Justice Democrats, Brian Fallon.
	Justice Democrats are the folks who basically forced Justice Breyer into retirement so he could replace Justice Breyer with a person who can't find the word woman.
	Brian Fallon tweeted, All Democrats need to show the same urgency as the clerk who apparently risked his or her career to sound this alarm.
	Those on the inside know best how broken the institution is.
	We should listen.
	Right?
	It's hero work now to violate the law and release unreleased judicial opinions and leak them out.
	Ian Millhiser, the moron from Vox, he tweeted, Seriously, shout out to whoever the hero was within the Supreme Court who said, F it.
	Let's burn this place down.
	Don't worry, guys.
	It's all norms.
	Norms all the way down for folks on the left.
	Total norms.
	Meanwhile, Democratic Senate candidates immediately began calling for massive federal legislation.
	They called to kill the filibuster, of course, because they're always calling to kill the filibuster, these advocates for the rule of law.
	So in Wisconsin, Senate candidate Tom Nelson said the Supreme Court has shown their hand.
	Senator Chuck Schumer has called a special session to blow up the filibuster and codify Roe now.
	First of all, not going to happen.
	Manchin and Sinema are not going to blow up the filibuster in order to pass a national law with regard to abortion.
	Good luck with that.
	Tim Ryan in Ohio did the same thing.
	He says overturning Roe v. Wade would be absolutely wrong, not to mention catastrophic for Ohio, where Republicans have passed one extreme and dangerous proposal after another to ban abortion before most people even know they're pregnant.
	I mean, ladies, find you a man who loves you like Democrats love the murder of the unborn.
	Seriously.
	I mean, they love it.
	They love it.
	Abortion is still going to be legal in blue states.
	This is a state issue.
	By the way, contraception is widely available and cheap.
	But these people, they want abortion so bad.
	Lieutenant Governor Mantella Barnes, candidate for the Senate in Wisconsin.
	Also said, quote, it has never been more clear why we need to abolish the filibuster and take immediate action to protect every person's right to make decisions about their own bodies, except for the child in the womb who makes no decision, simply has their brains sucked into a sink.
	So yes, all of that is wonderful.
	Hillary Clinton, of course, jumped in and sounded off.
	She tweeted, not surprising, but still outrageous.
	This decision is a direct assault on the dignity, rights, and lives of women.
	You want an assault, a direct assault on a life?
	That's what abortion is.
	Dignity has nothing to do with it when you kill your pre-born child.
	That is not a di- If your dignity is preserved by the killing of your pre-born child, let me just suggest that that has nothing to do with dignity.
	Not to mention decades of settled law.
	Yeah, like, again, whenever Democrats claim that they are interested in settled law, just understand that Democrats would love to enshrine in the Constitution of the United States the concept that men can be women and women can be men.
	Democrats' favorite judicial decision of the last 20 years is a decision saying that the Constitution mandates that men can marry men.
	So, no, I don't think that you guys give two dams about settled law.
	It will kill and subjugate women.
	Kill and subjugate women.
	Really, will it?
	So not being able to kill your preborn human being, that's killing and subjugating women.
	Hmm.
	Interesting.
	Even as a vast majority of Americans think abortion should be legal.
	What an utter disgrace.
	So here's the question.
	If you are so confident a vast majority of Americans think abortion should be legal, why don't you run on it?
	Do it.
	Seriously.
	Because guess what?
	A wide variety of states are going to have a say now.
	It's amazing how much these people fear democracy if they're on the side of democracy.
	Meanwhile, the irrepressible, so fresh, so face, Alexandria Ocasio-Cortez tweeted, Uh, no.
	You're gonna have to name a civil rights case.
	They're coming for the right to privacy, Roe Resson, which includes gay marriage and civil rights.
	Uh, no, you're gonna have to name a civil rights case that is, that is concerned here with Roe.
	And as I mentioned going through the decision, Alito goes out of his way to say that this does not include gay marriage issues.
	Manchin is blocking Congress, codifying Roe.
	House has seemingly forgotten about Clarence Thomas.
	These two points must change.
	So she wants to impeach Clarence Thomas now in order to do this.
	Good luck with that AOC.
	Eric Adams in New York, he tweeted out, New York City knows a woman's right to make her own healthcare decisions is hers and hers alone.
	This potential assault on their freedom by right-wing extremists cannot stand.
	We're ready to fight like hell.
	Well, congratulations, Eric Adams.
	Your state allows abortion basically up till birth.
	So you got nothing to say on this one, dude.
	Abortion will still be freely available in your garbage city.
	So congratulations to you.
	Meanwhile, members of the media going absolutely ballistic as well.
	So, you have Jeffrey Toobin, who impregnated his friend's daughter and then tried to pressure her to have an abortion.
	So he's an authority on abortion when he's not masturbating on Zoom for his colleagues.
	He has some comments on what the abortion decision means.
	You know, there is a lot of evidence.
	There are many societies, especially in Central and South America, that ban abortion altogether.
	And the rate of abortion does not go down when abortion is banned.
	There are just as many abortions, if not more, in societies where abortion is legal.
	What's different is that women die.
	And women are horribly mutilated because abortion is conducted in an unsafe way.
	But the idea of a legal ban on abortion stopping abortion is a myth.
	It does not happen.
	All it does is drive the process underground and endanger women's lives.
	That is a lie.
	That is a lie.
	Okay, the baseline notion that women are widely endangered by the making illegal of abortion, it is just not true.
	It is just not true.
	The stats do not bear out what he's saying, that thousands, millions of women are going to be condemned to dangerous illegal abortions.
	According to the Vital Statistics of the United States, Volume 2, Mortality Part A in 1960, They're a grand total.
	In 1960, when abortion was largely legal across the country, a grand total of 1,579 pregnancy-related deaths.
	289 were attributable to abortion in 1960, when it was banned basically across the country.
	were attributable to abortion in 1960, when it was banned basically across the country.
	In 1968, that number was 133.
	According to the CDC, in 1972, the year before Roe, there were 24 deaths from legal abortions and 39 from illegal abortions.
	This idea that women are dying by the thousands because of back alley coat hanger abortions, it's just not true.
	Also, when you talk about reducing the rate of abortion, yes, it turns out that when you make things illegal and punishable, the rates of abortion in those states decline.
	So Jeffrey Toobin just happens to be scouting complete nonsense.
	Meanwhile, you got Joe Scarborough, who I was under the impression used to be a Republican congressperson on MSNBC, talking about how people are going to conclude that their votes and voices no longer matter if the Supreme Court allows them to vote.
	Again, this is the most pretzel-y logic I've ever seen from the left.
	It's so pretzel-y.
	I mean, honest to goodness, it's Fuddruckers pretzels over here.
	The notion that somehow democracy is undermined by allowing you to vote on the issue is insane.
	And yet here is Joe Scarborough doing this routine.
	What does this story mean for the Supreme Court?
	Well, I mean, for the Supreme Court, in a word, illegitimacy.
	You know, the Court's always been guided by the law, but it's also been keenly aware that as the only unelected branch of American government, they needed to not appear to be openly contemptuous of public opinion.
	That would be especially true today, given the GOP's might-makes-right approach to the sacking of Merrick Garland's nomination or the elevation of Donald Trump's final pick.
	And yet, a half century of constitutional rights supported by over 70% of Americans.
	Let me underline that again because people lying to you on other channels will never say this.
	Over 70% of Americans support that constitutional right.
	It'll be swept away by the presidents not in this picture, the presidents who were outvoted in each one of those elections over the last three decades.
	Now, Americans will rightly conclude That their voices and their votes no longer matter.
	Okay, this guy does not understand what the Supreme Court is supposed to do.
	It is not the job of the Supreme Court to take into account public opinion.
	That's what legislatures are for.
	That's why they're elected branches.
	It is explicitly the job of the Supreme Court not to take into account public opinion.
	It is the job of a court... Can you imagine a criminal court in which you took into account public opinion?
	Wouldn't be a very good criminal court, would it?
	There's a criminal court.
	We are trying this person for murder.
	And yeah, the evidence doesn't show that the person's guilty of murder, but we do have this baying mob outside, so we should probably just, you know, hang the guy.
	Courts are explicitly designed not to take account of public opinion.
	But according to Joe Scarborough, they're fundamentally illegitimate if they don't take account of public opinion.
	And also, the idea is somehow that because George W. Bush and Donald Trump appointed the majority on this court, that somehow the decision is illegitimate.
	I'm confused.
	If you're concerned about democracy, shouldn't people vote?
	People vote on it, not the court.
	People vote on the issue.
	I love the idea that democracy is undermined by people being allowed to vote.
	It's an amazing statement from the left and demonstrates they don't care about the systems.
	All they want is their way.
	That's it.
	That's all they care about.
	That's all they care about is their way.
	Meanwhile, Rachel Maddow on MSNBC.
	She's back for 30 seconds to lament the possibility of a national abortion ban, which from her mouth to God's ears, but it ain't going to happen.
	Here we go.
	This new reporting that Republicans in Washington have been debating and planning on proposing a nationwide abortion ban, you know, a six week abortion ban, which is effectively a complete ban on abortion in the United States.
	And if the ultimate ruling from the court is going to look anything like this, and we're going into a midterm season where the Republicans are poised to take the House and the Senate, Then President Biden is still President Biden and he would presumably veto such a measure.
	But if in the event that we had a Republican president in 2024, that's where we'd be.
	We'd be at a South America style nationwide abortion ban in America.
	Okay, she's out of her mind on a political level.
	I mean, I wish that that were true, but it just is not true.
	If you think that Republicans in charge of Congress and the Senate and the presidency in the absence of Roe are going to pass a nationwide abortion ban, and I'm as pro-life as anybody in America, on a political level it ain't happening.
	The best that would happen, the best that you could hope for, is that they would start pushing back national bans on abortion.
	Right now, the only federal laws that are in place are like partial birth abortion bans.
	You might see that gradually push back to 20 weeks, 16 weeks, maybe even 10 weeks.
	If you have a full-scale national federal ban on abortion, the country's just too divided for that.
	It's not going to happen politically.
	Okay, but that, when it comes to the states, that is where the issue is going to be solved.
	That is where the issue is going to happen.
	And what that's going to do on a political level, and this is a very good thing, it's going to lead to a continuation of the big sword.
	There are a lot of people who are worried about the polarization of American society.
	You know what polarizes American society?
	When every issue has to be solved top down.
	That's what polarizes American society.
	What polarizes American society on the federal national level is when I feel like my life here in Florida is being controlled by people in California.
	And when people in California feel like their life is being controlled by people in Florida.
	When I feel like there is a giant government gun that is pointed at me and my children by people who I don't live near and who don't care about my priorities and who disagree with me, that is a problem.
	The founders understood this, which is why they created a federalist structure whereby most law was done at the local and state level, not at the federal level.
	What the Supreme Court is doing is now returning the issue that is the most contentious issue in American life back to the state and local level for regulation, which is Where it should be, you know, barring on a constitutional legal level, on a moral level, I'm a believer that there should be a constitutional amendment to protect human life in the womb.
	But barring that, the system provides for the states and localities to make these decisions.
	And the fact that the Supreme Court is now abiding by its own role in interpreting the law rather than just imposing it top down, The fact that the left finds this shocking or upsetting is amazing to me.
	Again, they keep saying things like, well, the people aren't with it.
	Well, now we're going to get a chance to find out.
	Now we're going to get a chance to find out, but you don't want to find out.
	That's the point.
	You liked it when the Supreme Court was doing your priors.
	You liked it when the Supreme Court was imposing its will top down.
	Again, the logic here is just insane.
	I'm reading Twitter and some of these people, so Ian Bremmer tweeted, I'm conflicted on abortion as someone raised Catholic, anti-death penalty, who doesn't think there's a definitive answer on when human life begins.
	By the way, there is a definitive answer on when human life begins.
	It's at conception.
	There's no other scientific definition of human life beginning than that.
	He says, I think it should be a woman's decision.
	It's tragic the Supreme Court is taking that away.
	They're not taking that away.
	They're leaving it up to the voters of the particular states.
	And by the way, the notion that the only choice that matters in a woman's reproductive life is the choice to abort is crazy.
	That's a crazy lunacy.
	There are a series of decisions that women make throughout their lives about reproductive choice.
	When to have sex, when to get married, when to use contraception, when to get pregnant.
	The baseline idea, I mean, by the way, the left is giving away the game when they treat abortion this way.
	It used to be they treated abortion as sort of an evil that you had to tolerate because there were certain situations in which the baby was malformed, or in which somebody was raped, or it was an incest case, or these are difficult decisions.
	Now the left just admits it right out.
	It's a form of contraception for them, which demonstrates the evil.
	Because if you're using abortion as a form of contraception, you are, I mean, that is one of the highest forms of moral evil I can imagine.
	If you're using abortion as a way to make your life more convenient, this makes you a bad person.
	Definitionally.
	You're not doing it based on some extenuating circumstance, you're doing it just because it's convenient and you were too lazy to use contraception, or because the condom failed or something.
	That is a serious moral issue with you.
	The fact that you want that established by the Supreme Court is madness.
	And it demonstrates disdain for morality, for basic decency, and most of all for the constitutional structure.
	This was not what the Supreme Court was meant to do.
	And for all those who say that the Supreme Court's legitimacy has been undermined here, no.
	If the Supreme Court goes this way, the Supreme Court's legitimacy has been restored because their job is to look at the Constitution's text and its history and to interpret what the words mean.
	It is not to do your political priors.
	That's not what the Constitution is meant to do.
	And them going back to their role would be a welcome sight.
	You want a restoration of the institutions in America and institutional trust?
	Institutions are supposed to do what they're supposed to do.
	You're not supposed to have Departments of Health and Human Services that cram down puberty blockers on children.
	You're not supposed to have Departments of Homeland Security that open the borders.
	And you're not supposed to have a Supreme Court of the United States that acts as a super legislature on behalf of Hillary Clinton and Joe Biden to do all of their political priors.
	You want trust in institutions?
	Restrict the institutions to doing what the institutions were meant to do.
	That's what this decision would do.
	So, I'm honestly good for the courage of the people who are voting in favor.
	No good on John Roberts, who continues to be just a disgrace to his office, if he votes as we think he's going to vote in this case.
	And whoever leaked this decision should be prosecuted to the fullest extent of the law, because it is a fulsome attempt to undermine the rule of law by leveraging threats and imprecations against sitting Supreme Court justices.
	Alrighty, we'll be back here today with an additional hour of content coming up soon as The Matt Wall Show airs at 1.30 p.m.
	Eastern.
	Be sure to check it out over at DailyWire.com.
	I'm Ben Shapiro.
	This is The Ben Shapiro Show.
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	The Ben Shapiro Show is a Daily Wire production.
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