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June 24, 2022 - The Ben Shapiro Show

01:28:06

Goodbye, Roe v. Wade | Ep. 1522

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	The Supreme Court finally issues its ruling on Roe v. Wade, and Roe v. Wade is now history.
	I'm Ben Shapiro.
	This is the Ben Shapiro Show.
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	We have received the decision in Dobbs versus Jackson Women's Health Organization.
	It completely overrules Roe versus Wade.
	The leaked draft decision by Samuel Alito a couple of months ago.
	It has not changed.
	There have been some additions.
	The majority opinion, which is joined in concurrence by Chief Justice Roberts, who in his concurrence, by the way, is precisely as cowardly as you would expect him to be.
	The actual five justices who voted in favor of the opinion are Alito, Thomas, Gorsuch, Kavanaugh, and Barrett.
	Thomas and Kavanaugh filed their own concurring opinions.
	We'll get to those in a moment because Thomas's is particularly fantastic and speaks to what constitutional law actually should be.
	And then Chief Justice Roberts filed an opinion concurring in the judgment, but failed to actually join the opinion.
	So technically it's.
	Technically, it's kind of 5, 3, and 1.
	Really, it's kind of 6, 3.
	It doesn't matter.
	Bottom line is Roe v. Wade is now gone.
	It is no longer the law of the land.
	Planned Parenthood v. Casey, which was the follow-up case to Roe, which did away with the trimester structure and instead went to fetal viability, that standard is now gone.
	This means states are now free to regulate abortion.
	They're now free to protect unborn human life.
	That is what this decision means.
	It means that hundreds of thousands of children who would have been killed in the womb will now live.
	This is a victory for human life.
	This is a victory for all human beings who are made in the image of God.
	It is a victory for a system of law that is not meant to be perverted by a bunch of robed oligarchs deciding for you what is your best moral life.
	Instead, the idea is that this issue is now going to devolve to the states, which is where it was for literally all of American history up until the point at which Roe vs. Wade seized it from the states and decided to turn it into a fake constitutional issue based on emanations and penumbras.
	So we're going to go through this opinion.
	It is a very long opinion.
	We're going to go through the opinion.
	We're going to go through the concurrences.
	We're going to go through the dissent.
	And we're going to prepare for a weekend of rage because presumably the left is now going to lose its ever-loving mind because they've been losing their mind for the last couple of months.
	In case you haven't noticed, there have been fire bombings of pro-life clinics.
	There have been fire bombings of churches.
	The DOJ has done precisely nothing about that.
	There's going to be a hue and cry across the land where we are told that women everywhere are going to be suffering from back alley abortions and all the rest.
	And then what will happen is what always should have happened.
	The state will now take over these questions.
	And Alabama will have very different laws on this matter than New York will.
	Now, from a moral point of view, I would love to see the pro-life movement win across the board.
	But on a constitutional level, The resolution of this constitutional issue by getting rid of Roe v. Wade and delegating it back to the states, which is where it originally was placed, that is the proper constitutional response to this, barring the reinterpretation of the 14th Amendment to protect unborn human life, which for this court would have been a stretch.
	In other words, this is the best that the pro-life movement could have hoped for, and now the real battle on the ground for the pro-life movement begins.
	What sorts of law can you pass in various states in order to protect unborn human life?
	So, let's go through the opinions.
	So Justice Alito's opinion, we went through his draft opinion when it was released through a leak in an unprecedented violation of Supreme Court precedent.
	A few weeks back, the draft opinion very much is reflected in this actual final majority opinion.
	The draft opinion is like 98 pages.
	The new opinion is like 108 pages.
	So there's some additional material.
	I'm really going through this with you as I read through it myself.
	So this is my quick and dirty response to the majority opinion.
	So Justice Alito says, Abortion presents a profound moral issue on which Americans hold sharply conflicting views.
	Some believe fervently a human person comes into being at conception and that abortion ends a human life.
	Others feel just as strongly any regulation of abortion invades women's right to control her own body and prevents women from achieving full equality.
	Still 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 this constitution, each state was permitted to address this issue in accordance with the views of its citizens.
	Then, in 1973, this court decided Roe vs. 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 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.
	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, writes Justice Alito for the court, it found that this interest could not justify any restriction on pre-viability 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 legislature.
	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.
	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 abortion laws in every single state.
	As Justice Byron White aptly put it in his dissent, the decision represented The exercise of raw judicial power.
	It sparked a national controversy that has embittered our political culture for half a century.
	We'll continue going through this majority opinion on this historic day in just one moment.
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	The court continues, eventually in Planned Parenthood versus Casey, the court revisited Roe, but the members of the court split three ways. Two justices expressed no desire to change Roe in any way. Four others wanted to overrule the decision in its entirety. The remaining three 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 the right to abortion. But the opinion concluded that stare decisis, 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 this court and the rule of law.
	Now, as we will see, that sort of logic is going to rear its ugly head in Chief Justice Roberts' concurrence, which is really, I think, hideous evidence of what a bad justice he is.
	I was one of the few conservatives to oppose his nomination and his confirmation when it happened under George W. Bush, I think for good reason.
	Paradoxically, the judgment in Casey says the opinions had a fair amount of overruling.
	Several important 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 a quote-unquote 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 a final settlement of the question of the constitutional right to abortion.
	As has become increasingly apparent, Casey did not achieve that goal.
	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 this court to overrule Roe and Casey and allow the states to regulate or prohibit pre-viability abortions.
	Before us is now one such state law.
	And then he goes into the details of the state of Mississippi and their prohibition on abortion after the 15th week of pregnancy, which is significantly before the viability standards set up by Roe and by Casey.
	The court 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 order liberty.
	Okay, so, as we will see, this particular area of the majority opinion is going to be warred upon by Justice Thomas in his phenomenal concurrence.
	Because what the court basically does here is they say there's still such a thing as substantive due process.
	And now, the 14th Amendment to the Constitution says that you cannot remove somebody, you can't deprive somebody of their life, liberty, or property without due process of law.
	And when you read that phrase, what you hear is, I can't just come over as the state and seize your property without going through some sort of court hearing, right?
	There has to be a due process of law In which you get to defend yourself, in which we get to adjudicate the claim, and then we can remove your right to life, liberty, or property, depending on how that claim is adjudicated.
	That's what due process of law means.
	The court, actually starting in the hideous case of Dred Scott v. Sanders, which tried to establish the idea that black Americans actually were not citizens of the United States and could not be.
	In that case, the court relied upon the idea that due process did not mean there had to be an adjudication.
	It meant that unless the court decided it was a good idea to deprive you of life, liberty, or property, it couldn't be deprived from you.
	And they called this substantive due process.
	Now, as you might imagine, it is oxymoronic that the phrase substantive due process, process is process, substance is substance.
	They're not the same thing.
	But the court here declines to overrule the idea of substantive due process and instead says substantive due process protects rights that are otherwise deeply embedded in America's history and tradition.
	And so they're going to rely on history and tradition.
	As you will see, Justice Thomas would just say, no, that's not the way any of this works.
	Substantive due process should be cast out entirely.
	We'll get to more from the majority opinion, the stunning and correct majority opinion from the Supreme Court of the United States.
	Roe versus Wade has now been trashed.
	It never should have been ruled that way.
	We've had 50 years of judicial imposition, of complete anti-life tyranny in the United States.
	That is now over at the federal level.
	We'll get to more of this in just one second.
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	Okay, back to this stunning and historic Supreme Court opinion today.
	The Supreme Court refuses to overrule the substantive due process interpretation.
	Instead, they say substantive due process only guarantees rights that are deeply embedded in America's history and tradition.
	Quote, 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 the states made abortion a crime at all stages of pregnancy.
	The abortion right is also critically different from any other right that this court has held to fall within the 14th Amendment's protection of liberty.
	Roe's defenders characterize the abortion right as similar to 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 acknowledge, because it destroys what those decisions called fetal life and what the law now before us describes as an unborn human being.
	So what the court here is attempting to do is carve off Roe v. Wade from Obergefell from Lawrence v. Texas.
	What they're trying to say is just because we're overruling Roe v. Wade because it is not a right deeply embedded in America's history doesn't mean we're necessarily going to overrule Obergefell or Griswold or Lawrence.
	Obergefell is of course the same-sex marriage decision.
	Griswold is about whether a state is allowed to bar the sale of contraceptives to non-married couples.
	Lauren versus Texas is about the idea that a state can have criminal laws against homosexual sodomy, for example, right?
	So those three cases, the court is saying we're not going to touch those.
	Now, as Justice Thomas says, really, the court should touch those.
	Really, regardless of what you think of whether there should be same-sex marriage or not same-sex marriage, that has nothing to do with the court.
	Regardless of what you think about the sale of contraceptives on the state level, that is not the role of the Supreme Court to declare that there is a right to obtain a contraceptive if you are a 14-year-old boy, for example.
	Right, like all of that is up to the states, is what Thomas would say.
	But the court is declining to do that.
	They're saying, we are not going to reopen things like Obergefell.
	We're not going to reopen Lauren versus Texas.
	We're not reopening Griswold.
	They're explicitly saying that.
	So when you hear today, the left say that the court is going to reopen those things, understand Thomas would, and he would be correct to do so, by the way, legally correct again.
	This is something the left refuses to understand about the Supreme Court.
	If I say right now that I'm in favor of the court overruling Griswold because it is predicated on fundamentally bad law, it talks about the emanations and per numbers phrase that was used in Roe actually comes from Griswold.
	It's a bunch of crap.
	Emanations and per numbers do not exist in the Constitution.
	It is nonsense.
	The court decided in Griswold that it just wanted to create a large-scale right to privacy, not specific rights to privacy from, say, unreasonable search and seizure, but a gigantic right to privacy that somehow covers the public sale of contraceptives.
	Okay, now, even if I say I want Griswold versus Connecticut overruled, that does not mean I am now in favor of legislation to prevent unmarried people from getting contraceptives.
	I'm not.
	I think such legislation is stupid.
	But the left refuses to see, like, as we'll see from the dissent in this particular case, When the left looks at the court, they see a legislature doing what they want to do.
	So when the right says, the court should not be involved in this issue, and then says, even if the court is not involved in this issue, that doesn't mean I'm in favor or against certain legislation.
	The left fundamentally refuses to understand this.
	They refuse to understand this.
	So even if you say, listen, I'm against Obergefell, I think the court should not have gotten involved, and I'm lukewarm on... Like, these two things, according to the left, are completely incompatible.
	Now, they're not incompatible because, again, the role of the Supreme Court is to interpret a text.
	It is a court.
	It is not a legislature.
	But because the left has always seen and continues to see the Supreme Court as simply a club to wield on behalf of its own political interests, they will refuse to acknowledge.
	And this is the big lie you're going to be.
	It will be told over and over.
	There's a big gun case yesterday.
	You're seeing the same thing being told about the court on the gun case.
	Whenever the court does not do the work of the hardcore left, the left suggests that this means that the court has now been hijacked by the hardcore right that wants to, for example, abolish same-sex marriage or wants complete pro-life laws or wants no restrictions on gun ownership at all.
	None of that is the case.
	The court is simply saying this is not in our purview, which is part of the court's job.
	Part of the court's job is to say this is not in our purview because it ain't in the Constitution.
	But according to the left, everything is within the court's purview so long as the left has its own policy prerogatives greenlit by the Supreme Court.
	That's a really, really important point.
	And you have to understand it in order to understand that this decision, Roe v. Wade, kicks the issue back to the states.
	You could fully well say, by the way, like it is perfectly consistent to say, I'm in favor of certain laws favoring abortion and also Roe v. Wade is bad law.
	Those two things are not incompatible.
	Now, on my own, I'm very much in favor of pro-life laws protecting life from point of conception.
	But, as a Supreme Court justice, were I sitting on the Supreme Court, that would have nothing to do with whether the Constitution covers abortion, or same-sex marriage, or contraception, or any of that stuff.
	The left simply refuses to acknowledge that distinction.
	Alright, so.
	The court continues, 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. 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, 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 That was Justice Scalia's concurrence, in part, in Casey and dissenting, in part.
	That is what the Constitution and the rule of law demand, says the majority.
	So then, they sum up the circumstances of this particular law in Mississippi.
	They say 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 Rose's central holding, based solely on stare decisis.
	But as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Rose based.
	So, we turn to the question that the Casey plurality didn't consider.
	We address that question in three steps.
	First, we explain the standard that our cases have used in determining whether the 14th Amendment's 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.
	And finally, we consider whether a right to obtain an abortion is part of a broader right that is supported by other precedents.
	So again, very important to note because it's going to come up again when we talk about Thomas's concurrence.
	They're not overruling the idea of substantive due process.
	They're just saying that substantive due process doesn't cover a right to an abortion because there's no history or precedent in American law to a right to an abortion.
	So they say constitutional analysis must begin with the language of an instrument, which offers a fixed standard for ascertaining what our founding document means.
	The Constitution makes 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 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, has been found to spring from no fewer than five different constitutional provisions.
	The First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
	The court's discussion left open at least three ways in which some combo of these provisions could protect the abortion right.
	One possibility was that the right was founded in the 9th Amendment's reservation of rights to the people.
	Another was that the right was rooted in the 1st, 4th, or 5th Amendment, or in some combination of those provisions, and that this right had been incorporated into the due process clause of the 14th Amendment.
	A third path was that the 1st, 4th, and 5th Amendments played no role, and the right was simply a component of liberty protected by the 14th Amendment.
	Roe expressed the feeling that the 14th Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution, and that specifying its exact location was not of paramount importance.
	And so this is basically Alito and the majority mocking Roe, saying, you guys don't even bother with this crap.
	You just kind of make it up as you go.
	We discussed this theory in depth below.
	Before doing so, we address one additional constitutional provision.
	Some respondents to Amici have now offered as yet another potential home for the abortion right, the 14th Amendment's Equal Protection Clause.
	So this is an addition from the original Alito draft.
	I don't believe this section was in the original Alito draft.
	Neither Roe nor Casey saw fit to invoke this theory.
	It is squarely foreclosed by our precedent, which established that a state's regulation of abortion is not a sex-based classification and is thus not subject to heightened scrutiny that applies to such classifications.
	The regulation of a medical procedure only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext designed to affect an invidious discrimination against members of one sex or another.
	And as the court has stated, the goal of preventing abortion does not constitute invidious discrimination or animus against women.
	So what the left is trying to argue here is that by barring abortion, you are targeting women.
	And what the court is saying, no, only women can have an abortion.
	That does not mean that if we seek to bar abortion because we're trying to seem to protect the right of the unborn or because the Constitution doesn't handle it, that that amounts to invidious discrimination any more than if there were a surgery that were of moral paramount importance with regard to prostates and somehow regulated that this would be an imposition on men, that it would be somehow targeting men.
	Just because only women, well apparently according to the left it's not even an issue anymore because apparently men can also have abortions, but even if you are one of those old style people who believes that you know only women can have abortions and such, even then regulating abortion is not about cracking down on women, it's about the question of the abortion itself.
	We'll get to more on this historic Supreme Court opinion in just one moment.
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	So the court continues 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 but our decisions have held that the due process clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight amendments and the second consists of a select list of fundamental rights 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 deeply rooted in our history and tradition, and whether it is essential to our nation's scheme of ordered liberty.
	In conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.
	And then they go through a bunch of different cases, including on the Second Amendment, talking about the Holdings with regard to what constitutes a right and what does not and what is embedded in the nation's history and all the rest.
	And then they point out that really, if you look at the history of the United States, there was no support in American law for a constitutional right to obtain an abortion.
	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.
	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 only a few years before Roe.
	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 criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages, says the majority.
	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 states had made abortion a crime at all stages of pregnancy.
	The remaining states would soon follow.
	Roe either ignored or misstated this history.
	Casey declined to reconsider Roe's faulty historical analysis.
	It's important, therefore, to set the record straight.
	And they go into a long discussion of what exactly the history of abortion law looks like in the United States and in the British common law that preceded the Constitution of the United States.
	They talk about Blackstone's commentaries.
	They talk about the rules with regard to quickening.
	What the left likes to say is, well, you know, it used to be that abortion was okay until quickening.
	Well, that was based on, again, biological ignorance.
	The fact that people didn't know that there was a baby there until quickening was demonstrative of biological ignorance, not demonstrative that there was not a life there.
	The court concludes the inescapable conclusion is that a right to abortion is not deeply rooted in the nation's history and 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 1973.
	The court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide.
	Attitudes toward abortion have changed, but our laws have consistently condemned and continue to prohibit that practice.
	Respondents and their amici have no persuasive answers to this historical evidence.
	Neither respondents nor the Solicitor General disputes the fact that by 1868, the vast majority of states criminalized abortion at all stages of pregnancy.
	Nor are respondents in their amici unable to show that a constitutional right to abortion was established by the 14th Amendment when it was adopted.
	But 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.
	Okay, so again, there is no history to any of this.
	And then they cite the lack of history that is being provided by the proponents of Roe versus Wade.
	The opinion continues.
	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 this a right to privacy.
	Casey described it as the freedom to make intimate and personal choices that are, quote, central to personal dignity and autonomy.
	Again, the Casey decision written by Justice Anthony Kennedy is, in my opinion, the single worst written Supreme Court decision of all time.
	It is just pathologically stupid garbage, the Casey decision.
	I mean, this quote is the whole thing, and it's just so dumb in Casey.
	Quote, What the hell kind of New Agey bull crap is that?
	Especially when you're talking about legislation.
	of the universe and of the mystery of human life. What the hell kind of new agey bullcrap is that?
	Especially when you're talking about legislation. And when you're talking about legislation that affects other interests like, you know, the unborn human being. The court did not claim 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.
	License to act on the basis of such beliefs may correspond to one of the many understandings of liberty, but it is certainly not ordered liberty.
	This is Alito just woodshedding Justice Kennedy as is well deserved, and Casey's an abomination.
	Ordered 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 Roe and Casey recognized.
	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.
	That is the key question, right?
	Whether states get to have a say on this.
	And the left keeps saying, whatever prevents my opponents from getting their say is a good thing, even if it means completely destroying the Constitution in the process, which is what Roe and Casey do.
	Now, They then try to take on the idea that this is going to end with the, if we get rid of Roe and Casey, then this means that we are going to overrule Loving v. Virginia, or Griswold v. Connecticut, or Eisenstadt v. Baird, or any of the rest of these cases.
	So, the court takes this on explicitly.
	nor does the right to obtain an abortion have a sound basis and precedent.
	Casey relied on cases involving the right to marry a person of a different race, the right to marry while in prison, the right to obtain contraception, the right to reside with relatives, the right to make decisions about the education of one's own children, etc.
	These attempts to justify abortion through appeals to a broader right to autonomy and to define one's concept of existence prove too much.
	This is a law school phrase.
	The idea that that is an argument that proves too much.
	It means that the argument is so broad that it encompasses stuff that you clearly do not wish to encompass.
	This happens all the time in law.
	Somebody will establish a principle that is way too broad for the case that is currently at hand.
	Those criteria, as the court says, at a high level of generality could license fundamental rights to elicit 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 both of 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 involve the critical moral question posed by abortion.
	They are therefore inapposite.
	So, again, the critical flaw in this opinion is that it keeps over and over reinstating substantive due process as a good idea.
	I keep coming back to this because, again, Thomas' concurrence is a must-read.
	Thomas' concurrence is the best exposition I think I've ever read of the substantive due process notion from the Supreme Court and why it is so damaging to the Supreme Court and basically turns it into an ad hoc legislature.
	But the court says, even if you were to hold substantive due process, which we do, then abortion is not covered by substantive due process.
	They say, in drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey's claim that the specific practices of states at the time of the adoption of the 14th Amendment do not mark the outer limits of the substantive sphere of liberty which the 14th Amendment protects.
	Abortion is nothing new.
	It's been addressed by lawmakers for centuries.
	The fundamental moral question that it poses is ageless.
	Defenders of Rowan Casey do not claim any new scientific learning calls for a different answer to the underlying moral question.
	They do contend 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 type of relationships they desire, and 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 development.
	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 government assistance, that states have increasingly adopted safe haven laws which generally allow women to drop off babies anonymously, and 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 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.
	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 have failed to make that showing.
	Now, the additional part of the of the majority opinion is the part taking on the dissent.
	So the dissent is written, of course, by the left wing of the court.
	The dissent is the joint opinion of Breyer, Sotomayor, and Kagan.
	And as we will get to when we get to the dissent, the dissent basically makes the argument, we like abortion.
	Therefore, the Constitution covers abortion.
	That is the extent of the opinion.
	They take a long way around to say it.
	In the same way that they've said about the Second Amendment, we don't like guns.
	Therefore, the Second Amendment doesn't protect bearing arms outside the home.
	This is how the left reasons when it comes to constitutional law.
	We wish for Result X. Therefore, the Constitution mandates or prohibits Result X.
	That is how they rule.
	We'll get to more from the historic Supreme Court decision striking down Roe v. Wade in just a moment.
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	Here is what the court has to say about the dissent.
	The dissent is very candid, that it cannot show a constitutional right to abortion has any foundation, let alone a deeply-rooted one.
	The dissent does not identify any pre-Roe authority that supports such a right.
	No state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.
	Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening, that the 19th century saw a transformed criminalization of pre-quickening abortions, that by 1868, a supermajority of states had enacted statutes criminalizing abortions at all stages of pregnancy, etc.
	That a sense failure to engage with this long tradition is devastating to its position.
	We have held that established methods of substantive due process analysis requires that an unenumerated right be deeply rooted in this nation's history and tradition before it can be recognized as a component of the liberty protected in the Due Process Clause.
	But despite the dissent's professed fidelity to stare decisis, it fails to seriously engage with that important precedent, which it cannot possibly satisfy.
	The dissent attempts to obscure this failure by misrepresenting our application of another case called Glucksburg.
	The dissent suggests we have focused only on the legal status of abortion in the 19th century.
	But our review of this nation's tradition extends well past that period.
	As explained, for more than half a century after 1868, actually for more than a century, including another half century after women gained the right to vote in 1920, it was firmly established that laws prohibiting abortion, like the Texas law at issue in Roe, were permissible exercises of state regulatory authority.
	Because the dissent cannot argue that the abortion right is rooted in this nation's history and traditions, it contends that the constitutional tradition is not captured whole at a single moment.
	And that it's meaning gains content from the long sweep of our history and from successive judicial precedents, which, of course, is their way of just being completely arbitrary.
	We're not going to look at the text.
	We're not going to look at the history.
	You know, history flows and it moves and the law changes.
	And so we should do what we want.
	As the court says, that's ridiculous.
	This vague formulation imposes no clear restraints on what Justice White called the exercise of raw judicial power.
	And while the dissent claims that standards does not mean anything goes, any real restraints are hard to discern.
	The largely limitless reach of the dissenter standard is illustrated by the way they apply it here. First, if the long sweep of history imposes any restraint on the recognition of unenumerated rights, Roe was surely wrong, since abortion was never allowed in a majority of states for over 100 years before that decision was handed down.
	Second, it's impossible to defend Roe based on prior precedent, because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason we've explained.
	None of them included potential life.
	So without any support in history or relevant precedent, Roe's reasoning can't be defended, even under the dissent's proposed test. The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the state's interest in protecting fetal life.
	This is evident in the analogy that the dissent draws between the abortion right and the rights discussed in Griswold, contraception, Eisenstadt, Lawrence, sexual conduct with a member of the same sex, and Obergefell, same-sex marriage.
	Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights.
	But the dissent's analogy is objectionable for a more important reason, what it reveals about the dissent's views on the protection of what Roe called potential life.
	The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a potential life, but an abortion has that effect.
	So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear.
	The Constitution does not permit the states to regard the destruction of a potential life as a matter of any significance, right?
	This is where the dissent is obviously totally correct, right?
	I mean, where the majority is obviously totally correct and the dissent is wrong, right?
	The dissent is basically just taking the left-wing position There is no rational state interest in protecting unborn human life.
	They're taking the Democratic Party platform position, and they're trying to write that into the Constitution.
	Even Roe and Casey didn't claim that.
	That view is evident throughout the dissent, says the majority.
	The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, the difficulties faced by poor women.
	These are important concerns.
	However, the dissent evinces no similar regard for a state's interest in protecting prenatal life.
	The dissent repeatedly praises the balance that the viability line draws between a woman's liberty interest and the state's interest in prenatal life.
	But for reasons we discuss later, the viability line makes no sense.
	It was not adequately justified in Roe.
	The dissent has not even tried to defend it today.
	Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.
	The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin.
	According to the dissent, the Constitution requires the state to regard a fetus as lacking even the most basic human right to live, at least until an arbitrary point in a pregnancy has passed.
	Nothing in the Constitution or in our nation's legal traditions authorizes the court to adopt that theory of life.
	Okay, so that is the majority dispensing with the dissent of the left wing of the court.
	Then the majority has some very special words for Chief Justice Roberts, which I frankly enjoy, because Chief Justice Roberts' concurrence is absolute sheer nonsense garbage piled on top of a smoking rubble heap of nonsense and garbage.
	It really, it's terrible.
	Justice Roberts is basically like, I'm uncomfortable with this and it makes me squeamish, so I'm going to vote to concur, but I wouldn't have if I had another choice, but you think I'm making light of his concurrence?
	It's because I am, because it's really, really stupid and terrible.
	So, says the Supreme Court.
	We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.
	Stare decisis plays an important role in our case law.
	We've explained it serves many valuable ends.
	Stare decisis is just precedent.
	It protects the interests of those who have taken action in reliance on a past decision.
	It fosters even-handed decision-making by requiring that like cases be decided in a like manner.
	It contributes to the actual and perceived integrity of the judicial process.
	And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past.
	We have long recognized, however, that stare decisis is not an inexorable command.
	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 then the court specifically cites a few decisions that they have overruled.
	So, for example, Brown v. Board was overruling Plessy v. Ferguson.
	Or West Coast Hotel v. Parish, which overruled a case holding that a law setting minimum wages for women violated the liberty protected by the Fifth Amendment's Due Process Clause.
	Or West Virginia Board of Education, in which the court overruled another case holding that public school students could not be compelled to salute the flag in violation of their sincere beliefs.
	And then they put together a list of stare decisis being overruled.
	A very, very long list.
	It's a two-page footnote.
	No justice of this court says the majority has ever argued that a court should never overrule a constitutional decision, but overruling a precedent is a serious matter.
	In this case, five factors weigh strongly in favor of overruling Ron Casey.
	The nature of the error, the quality of their reasoning, the workability of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.
	And then they go through each of these factors.
	They talk about the fact that there is no good quality to the reasoning.
	The reasoning sucks.
	They go through the fact that it's not grounded in history.
	That the rules that they came up with are completely legislative in nature.
	And they go through all of these various five factors, and the court says, yeah, none of these cut in favor of upholding stare decisis here.
	And then they get to saving some special Some special words for Chief Justice Roberts.
	They say, and I'm scrolling through the opinion here, so stick with me.
	They say that the Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance and wrote that people had organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion.
	In the event contraception should fail, Casey's notion of reliance finds little support in our cases.
	This is talking about the last part of the Casey decision and how none of these cases cut in favor of stare decisis here.
	Okay, so here we go.
	This is where they're really going to get into it.
	And forgive me for scrolling here for a second.
	Okay, here we go.
	It says, the dissent argues that we have abandoned stare decisis.
	We have done no such thing.
	It is the dissent's understanding of stare decisis that breaks with tradition.
	The dissent's foundational contention is that the court should never, or perhaps almost never, overrule an egregiously wrong constitutional precedent unless the court can point to major legal or factual changes undermining the decision's original basis.
	In supporting this contention, the dissent claims Brown v. Board and other landmark cases overruling prior precedents responded to changed law and to changed facts and attitudes that had taken hold throughout society.
	The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions.
	Recognition that the cases they overruled were egregiously wrong on the day they were handed down was not enough.
	The court has never adopted this strange new version of stare decisis, and with good reason.
	Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half century of state-sanctioned segregation?
	Even if the dissent were correct in arguing that an egregiously wrong decision should almost never be overruled, unless its mistake is later highlighted by major legal or factual changes, reexamination of Roe and Casey would be amply justified.
	We've already mentioned a number of post-Casey developments, but the most profound change may be the failure of the Casey plurality's call for the contending sides in the controversy about abortion to end their national division.
	That hasn't happened.
	The dissent, however, is undeterred.
	It contends the very controversy surrounding Roe vs. Casey is an important stare decisis consideration that requires upholding those precedents.
	But as we've explained, Casey and Rowe basically created the controversy in the first place.
	And then, for like the fifth time in the opinion, the majority says, we are not overruling Griswold or Lawrence or Obergefell.
	I mean, they keep saying it over and over.
	So when you hear that these are about to be overruled, understand, there is not a majority of support for this.
	There may be one vote to overrule that.
	That'd be Justice Thomas, who happens to be correct, but there are not the votes to overrule those.
	Finally, the dissent, says the majority, suggests our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell.
	We have unequivocally stated, nothing in this opinion should be understood to cast doubts on the precedents that do not concern abortion.
	We've also explained why that is so.
	Rights regarding contraception and same-sex relationships are inherently different, and they go back again to that well.
	Okay, now they get to Roberts.
	Forgive me for taking a while to get there.
	It's on page 72 of the opinion.
	Quote, we now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled.
	That opinion, which for convenience we'll simply call the concurrence, recommends a more measured course, which it defends based on what it claims is a straightforward stare decisis analysis.
	The concurrence would leave for another day whether to reject any right to an abortion at all, and would hold only that if the Constitution protects any such right, the right ends once women have had a reasonable opportunity to obtain an abortion.
	The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi's law, is enough, at least absent rare circumstances.
	There are serious problems with this approach, says the majority.
	It is revealing that nothing like it was even recommended by either party.
	As we have recounted, both parties and the Solicitor General urged us to either reaffirm or overrule Roe v. Casey.
	When the specific approach advanced by the concurrence was broached at oral argument, both respondents and the Solicitor General emphatically rejected it.
	Respondents' counsel termed it completely unworkable and less principled and less workable than viability.
	The Solicitor General argued that abandoning the viability line would leave the court and others with no continued guidance.
	What's more, the concurrence has not identified any of the more 130 amicus briefs filed in this case that advocate its approach.
	So that is the majority just woodshedding Justice Roberts, which he fully deserves.
	By the way, worth noting when it comes to Justice Roberts, the fact that he wished to craft out of whole cloth, like out of his head, out of his crazy head, a new standard That was kind of like the undue burden standard, like give ample opportunity for an abortion, like a completely arbitrary standard that no one suggested.
	Not the people who are in favor of Roe, not the people who are against Roe, not the 130 amici briefs that were filed in the case.
	He was just going to create out of whole cloth a constitutional standard that shows you who Chief Justice Roberts is.
	He did the same thing when it came to the Obamacare case.
	He simply created out of whole cloth a precedent whereby a tax was not a tax except when it was a tax.
	This is what Justice Roberts does.
	And he thinks somehow he's upholding the institutional legitimacy of the court by never coming down with rules that are explicit in the Constitution.
	It's insane and ridiculous.
	And the majority just kicks him about for it.
	Quote, The concurrence's most fundamental defect is its failure to offer any principled basis for its approach.
	The concurrence would discard the rule from Roe versus Casey that a woman's right to terminate her pregnancy extends up to the point that the fetus is regarded as viable.
	But this rule is a critical component of the holdings in both Roe and Casey.
	And stare decisis is a doctrine of preservation, not transformation.
	Therefore, a new rule that discards viability can't be defended on stare decisis grounds.
	The concurrence concedes its approach would not be available if the rationale of Roe and Casey were inextricably entangled with independence upon the viability standard.
	But the concurrence asserts that the viability line is separable from the constitutional right they recognized and can therefore be discarded without disturbing any past precedent.
	That is simply incorrect.
	Roe's trimester rule was expressly tied to viability.
	Viability played a critical role in later abortion decisions.
	If viability was not an essential part of the rule adopted in Roe, the court would have had no need to make the comparison that it made in Casey.
	The holding in Killati v. Franklin is even more instructive, and they go through a series of cases in which viability was used as the standard by the Supreme Court.
	So you can't discard Roe v. Roe or Casey with regard to the viability standard and somehow uphold the underlying rationale.
	They say not only is the new rule proposed by the concurrence inconsistent with Casey's language, it is also contrary to the judgment in that case and later abortion cases.
	In Casey, the court held that Pennsylvania's spousal notification provision was facially unconstitutional.
	Not just that it was unconstitutional as applied to abortions sought prior to the time when a woman has had a reasonable opportunity to choose.
	For all these reasons, stare decisis cannot justify the new Reasonable Opportunity Rule propounded by the concurrence.
	If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show this rule represents a correct interpretation of the Constitution.
	The concurrence doesn't claim the right to a reasonable opportunity to obtain an abortion is rooted in the nation's history and tradition.
	Nor does it propound any other theory that could show the Constitution supports its new rule.
	And if the Constitution protects a woman's right to obtain an abortion, the opinion does not explain why that right should end after the point at which all reasonable women will have decided whether to seek an abortion.
	The concurrence would leave for another day whether to reject any right to an abortion at all.
	But another day wouldn't be long in coming because other states are already setting deadlines for obtaining an abortion that are shorter than Mississippi's.
	So, in other words, he's a coward is what the majority is saying.
	Like you want to concur and create an unworkable rule in which on an ad hoc basis you strike down laws, but you're going to spend the rest of your life figuring out whether to strike down laws or not then.
	Even if the court ultimately adopted the new rule suggested by the concurrence as the majority, we would be faced with the difficult problem of spelling out what it means.
	For example, if the period required to give women a reasonable opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage of women make that choice, we'd have to identify the relevant percentage.
	It would be necessary to explain what the concurrence means when it refers to rare circumstances that might justify an exception.
	In sum, the concurrence's quest for a middle way would only put off the day when we'd be forced to confront the question we now decide.
	And then they talk about what exactly the new standard is going to be with regard to state abortion regulations.
	And what they say is it's rational basis review.
	Meaning, basically, unless the state does something completely and insanely irrational, by like every available light, states have the right to regulate this stuff.
	They say at the very end of the case, 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.
	The judgment of the Fifth Circuit is reversed. The case is remanded for further proceedings consistent with this opinion. And then they attach a massive appendix, it's like 20 page appendix, about the relevant law in every state around abortion for centuries, like Hawaii, I mean, moving forward through time.
	Alrighty, folks.
	First of all, you should subscribe at Daily Wire because we have a fantastic documentary called Choosing Death, all about the importance of overruling Roe vs. Wade.
	But also, this Sunday is the Sunday Special.
	It's this weekend.
	Our special guest is award-winning author and investigative journalist Matt Taibbi.
	He's a member of the left, and yet we had a cordial and interesting conversation.
	Here's a little bit of the trailer.
	Our job as journalists, the way I see it, is not to make a pronouncement, not to convince people to think one way or the other, but to explain why things happen.
	Suddenly they're telling us as reporters, we can't include something that's true because it goes against some kind of narrative.
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	you're listening to the largest, fastest growing conservative podcast and radio show in the nation.
	And then we get to what I actually think is the best piece of writing anywhere here.
	And that, of course, is Justice Thomas's concurrence.
	It is a spectacular concurrence.
	It is correct.
	It is more correct than the actual majority opinion.
	The majority does not have the actual stones to rule like Justice Thomas, which is sad because he is correct.
	Substantive due process needs to go.
	Substantive due process.
	Which is just a blank page by which the Supreme Court gets to write whatever its preferences are into law.
	It needs to go.
	And that's what Justice Thomas points out.
	And he says, listen, if the consequences of that are that we get rid of Obergefell and Lawrence and Griswold, all of which are decided under substantive due process, then so be it.
	And then states can take up the question of same-sex marriage again.
	Or you can pass a constitutional amendment that guarantees same-sex marriage, for example.
	But none of the other justices have the stones to do it.
	So when you hear the media fulminating over Justice Thomas, recognize that he's writing a concurrence for literally just himself.
	So here's what Justice Thomas writes.
	He says, I join the opinion of the court because it correctly holds there is no constitutional right to abortion.
	Respondents invoke one source for that right, the 14th Amendment's guarantee, and no state shall deprive any person of life, liberty, or property without due process of law.
	The court well explains why, under our substantive due process precedents, the purported right to obtain an abortion is not a form of liberty protected by the due process clause.
	Such a right is neither deeply rooted in the nation's history and tradition, nor is it implicit in the concept of ordered liberty.
	I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause.
	Considerable historical evidence indicates that due process of law merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.
	You know, like the English language suggests.
	Other sources, by contrast, suggest due process of law prohibited legislatures from authorizing the deprivation of a person's life, liberty, or property without providing him the customary procedures to which free men were entitled by the old law of England.
	Either way, the Due Process Clause, at most, guarantees process.
	It does not, as the Court's substantive due process cases suppose, forbid the government to infringe certain fundamental liberty interests at all, no matter what process is provided.
	As I have previously explained, substantive due process is an oxymoron that lacks any basis in the Constitution.
	The notion that a constitutional provision that guarantees only process before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.
	He's quoting himself right here, and that of course is correct.
	The resolution of this case is thus straightforward.
	The Due Process Clause did not secure any substantive rights.
	It does not secure a right to abortion.
	The court today declines to disturb substantive due process jurisprudence specifically or the doctrine's application in other specific contexts.
	Cases like Griswold v. Connecticut, Lawrence v. Texas, or Obergefell are not at issue.
	The court's abortion cases are unique.
	No party has asked us to decide whether our entire 14th Amendment jurisprudence must be preserved or revised.
	Thus, I agree, nothing in the court's opinion should be understood to cast doubt on precedents that do not concern abortion.
	For that reason, in future cases, we should reconsider all of the court's substantive due process precedents, including Griswold, Lawrence, and Obergefell.
	Because any substantive due process decision is demonstrably erroneous.
	We have a duty to correct the error established in those precedents.
	After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights our substantive due process cases have generated.
	For example, and this is a going theory in sort of right-wing conservative and originalist interpretive circles with regard to the so-called privileges and immunities clause, He says we could consider whether any of the rights announced in this court's substantive due process cases are actually privileges or immunities of citizens of the United States protected by the 14th Amendment.
	To answer that question, we need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution, and if so, how do I intensify those rights?
	That said, even if the clause does protect unenumerated rights, the court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.
	Okay, so there is a theory, it's a going theory, in, as I say, many originalist interpretive communities, that the Privileges or Immunities Clause, which suggests that the privileges or immunities of citizens of the United States may not be abridged, That those privileges or immunities specifically mean certain rights that are unenumerated in the Constitution.
	So theoretically, a privilege or immunity could be same-sex marriage.
	Now, it would be hard to establish that based on the history of privileges or immunities.
	But theoretically, if you're going to hide a right there, you might hide it in privileges or immunities, is what Thomas is saying.
	Since the slaughterhouse cases, privileges and immunities have basically been written out of American law.
	Justice Thomas and many others would like to revive privileges and immunities because it actually does mean something, right?
	Justice Robert Bork, rather Judge Robert Bork. He had suggested that privileges and immunities clause had become basically an inkblot. It was impossible to say what exactly it was supposed to mean. But Justice Thomas and many others would like to revive privileges and immunities because it actually does mean something, right?
	There are certain rights under privileges and immunities that ought to be protected that are not specifically named in the first parts of the Bill of Rights. Thomas continues, apart from being a demonstrably incorrect reading of the due process clause, the legal fiction of substantive due process is particularly dangerous. At least three dangers favor jettisoning the doctrine entirely. First, substantive due process exalts judges at the expense of the people from whom they derive their authority.
	Because the due process clause speaks only to process, the court has long struggled to define what substantive rights it protects.
	In practice, the court's approach for identifying those fundamental rights unquestionably involves policymaking rather than neutral legal analysis.
	The court defines new rights in line with its own extra-constitutional value preferences and nullifies state laws that do not align with the judicially created guarantees.
	Nowhere is this exaltation of judicial policymaking clearer than in this court's abortion jurisprudence.
	In Roe v. Wade, the court defined a right to abortion because it felt the 14th Amendment's concept of personal liberty included a right to privacy broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
	In Planned Parenthood, the court likewise identified an abortion guarantee in the liberty protected by the 14th Amendment, but rather than a right of privacy, it invoked an ethereal right to define one's own concept of existence, of meaning, of the universe, of the mystery of human life.
	As the court's preferred manifestation of liberty changed, so too did the test used to protect it.
	Now, in this case, the nature of the purported liberties supporting the abortion right has shifted yet again.
	Respondents in the United States propose no fewer than three different interests.
	They suppose spring from the Due Process Clause.
	They include bodily integrity, personal autonomy in matters of family, medical care, and faith, and women's equal citizenship.
	That 50 years have passed since Roe, and abortion advocates still can't coherently articulate the right at stake proves the obvious.
	The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.
	Second, substantive due process distorts other areas of constitutional law.
	For example, once this court identifies a fundamental right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statute that deny the right to others.
	Statutory classifications implicating certain non-fundamental rights, meanwhile, receive only cursory review.
	Similarly, this court deems unconstitutionally vague or overbroad laws that impinge on its preferred rights while letting slide those laws that implicate supposedly lesser values.
	In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade and has since been deployed to nullify even mild regulations of the abortion industry.
	Third, substantive due process is often wielded to disastrous ends.
	For instance, in Dred Scott v. Sanford, the court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.
	While Dred Scott was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, that overruling was purchased at the price of immeasurable human suffering.
	Now today, the court rightly overrules Roe v. Wade, two of the court's most notoriously incorrect substantive due process decisions in Casey.
	The harm caused by this court's forays into substantive due process remains immeasurable.
	Because the court properly applies our substantive due process precedents to reject the fabrication of a constitutional right to abortion, and because this case does not present the opportunity to reject substantive due process entirely, I join the court's opinion.
	But, in future cases, we should follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds beyond that a right to due process when life, liberty, or property is to be taken away.
	Substantive due process conflicts with that textual command and has harmed our country in many ways.
	We should eliminate it.
	from our jurisprudence at the earliest opportunity.
	So Justice Thomas, of course, being clear and concise, he is the best justice in modern American history, bar none.
	And he is absolutely correct that really the court should have gone even further here and just struck down Roe on the grounds that substantive due process is just sheer gobbledygook.
	There are a couple of other concurrences that are worth noting here.
	Justice Kavanaugh writes a concurrence And he points out that there are a bunch of differing sort of principles on abortion.
	He says, when it comes to abortion, one interest must prevail over the other at any given point in a pregnancy.
	Many Americans of good faith would prioritize the interest of the pregnant woman.
	Many other Americans of good faith instead would prioritize the interest in protecting fetal life.
	Of course, many Americans are conflicted.
	The issue before the court is not policy or morality.
	The issue before the court is what the Constitution says.
	The Constitution does not take sides on the issue of abortion.
	The text of the Constitution does not refer to or encompass abortion.
	To be sure, this court has held that the Constitution protects unenumerated rights that are deeply rooted in the nation's history and tradition and implicit in the concept of orderly liberty.
	But a right to abortion is not deeply rooted in American history and tradition, as the court today thoroughly explained.
	On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice.
	The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the states or Congress.
	Like numerous other difficult questions of American social and economic policy, the Constitution does not address.
	And he continues along these lines and he talks about why the Constitution is effectively neutral in this particular case.
	And then he talks about stare decisis.
	He says, stare decisis imposes a high bar before this court may overrule a precedent.
	The court's history shows stare decisis is not absolute and cannot be absolute.
	He says, I agree with the court that Roe should be overruled.
	The court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue. The Constitution does not grant this court the authority to decide. And he says, I have deep and unyielding respect for the justices who wrote the Casey plurality opinion. I respect the Casey plurality's good faith effort to locate some middle ground or compromise that could resolve this controversy for America. But as it's become increasingly evident over time, Casey's well-intentioned effort to not resolve the abortion debate, the national division has not ended.
	Although Casey is relevant to the stare decisis analysis, the question of whether to overrule cannot be dictated by Casey alone.
	He says, in sum, I agree with the court's application today of the principles of stare decisis and its conclusion that Roe should be overruled.
	He says, after today's decision, this is Justice Kavanaugh's concurrence, the nine members of this court will no longer decide the basic legality of previability abortion for all 330 million Americans.
	That issue will be resolved by the people and the representatives in the democratic process in the states or Congress.
	The party's arguments have raised some other related questions.
	I address some of them here.
	First is the question of how this decision will affect other precedents involving such issues as contraception and marriage.
	I emphasize what the court today states.
	Overruling roads does not mean overruling these precedents and does not threaten or cast doubt on these precedents.
	Second, as I see it, some of the other abortion-related legal questions are not especially difficult as a constitutional matter.
	For example, may a state bar a resident of that state from traveling to another state to obtain an abortion?
	In my view, the answer is no, based on the constitutional right to interstate travel.
	See, he's even saying you don't have five votes to uphold a state law that prohibits travel from one state to another for purposes of obtaining an abortion.
	And so that is him saying, listen, you guys can talk as much as you want about how we're going to overrule other cases, and the abortion case isn't really about abortion, it's really about other stuff, but it really isn't.
	It's just about abortion.
	And we get to Chief Justice Roberts' concurrence.
	And again, this is a historic opinion, so we're going through it in like full detail with all the occurrences and all of the dissents.
	When you finish listening to today's show, you're going to know more about this decision than pretty much anybody else out there.
	So Chief Justice Roberts, again, demonstrating what a terrible justice he is.
	I mean, he really is bad.
	He's really bad.
	I mean, he's not as bad as Justice Kennedy, because no one was as bad as Justice Kennedy in a lot of these cases.
	He's not as bad as Henry Day O'Connor.
	He's not as bad as maybe John Paul Stevens.
	But for a Republican appointed justice, Roberts is bad.
	His concurrence today, in which he says that he would just set up a rule based on what is out of his dumb head, is really pretty wild.
	He says, let me begin with my agreement with the court on the only question we need to decide here.
	Whether to retain the rule from Roe and Casey that a woman's right to terminate her pregnancy extends to the point that the fetus is regarded as viable outside the womb.
	I agree that the rule should be discarded.
	And then he says, you don't have to discard Roe versus Wade.
	You know, we can get rid of the viability rule, but we don't need to discard Roe versus Wade.
	He says, none of this requires we take the dramatic step of eliminating the abortion right first recognized in Roe.
	Mississippi itself previously argued as much to this court in this litigation.
	When the state petitioned for our review, its basic request was straightforward.
	Clarify whether abortion prohibitions before viability are always unconstitutional.
	The state made a number of strong arguments.
	The answer is no.
	It went out of its way to make clear it was not asking the court to repudiate entirely the right to choose whether to terminate a pregnancy.
	Mississippi tempered that statement with an oblique one-sentence footnote, intimating that if the court could not reconcile Roe and Casey with current facts, it should not retain erroneous precedent.
	But the state never argued we should grant review for that purpose.
	Okay, so he's just basically trying to end around the simple fact that there was no one in this case arguing in favor of the concept that you could just radically redraw the line for no apparent reason.
	He says, following a fundamental principle of judicial restraint, we should begin with the narrowest basis for disposition, proceeding to consider a broader one only if necessary to resolve the case at hand.
	Here, there is a clear path to deciding this case correctly, without overruling Roe all the way down to the studs, recognizing the viability line must be discarded, and leave for another day whether to reject any right to an abortion at all.
	Of course, such an approach would not be available if the rationale of Roe and Casey was inextricably tangled with the, and dependent upon, the viability standard, but it isn't.
	You can still have a right to choose, and then we can magically make up a rule.
	Now, as the majority says, you really can't do that.
	That's really stupid, and no one really was arguing in favor of that.
	But, Justice Roberts seems to be under the wild misimpression that the viability of the court itself is reliant on the court, quote-unquote, taking things incrementally and slowly rather than doing its actual job.
	Which, of course, is not true.
	That is not correct.
	If Chief Justice Roberts wanted this institution to collapse as an institution, it would have pleased nobody by drawing a quote-unquote middle line, especially in the aftermath of that horrific leak of the early draft of the opinion.
	If the Supreme Court had actually ruled in favor of this arbitrary standard set by Chief Justice Roberts, that would have been a full-scale disaster, obviously.
	So Chief Justice Roberts concludes, he says, both the court's opinion and the dissent display a relentless freedom from doubt on the legal issue I cannot share.
	I'm not sure a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after 15 weeks.
	A thoughtful member of this court once counseled, the difficulty of a question admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary.
	I would decide the question we granted review to answer.
	The answer to that question is no, there's no need to go further to decide this case.
	I therefore concur only in the judgment.
	Cowardice, cowardice, and more cowardice.
	Alrighty, so that is the judgment, that is all of the concurrences.
	Then you get to the dissent.
	The dissent is super long.
	The dissent is fully, and I'm going to browse down here so I can get the full page number here.
	The dissent goes, I kid you not, this is one of the longest dissents I've ever seen in my entire life.
	This dissent goes for 66 pages.
	66 pages.
	And the entire dissent can be summed up in a single sentence.
	We like Roe.
	Roe should be upheld.
	There's no legal reasoning.
	There's no attempt at legal reasoning.
	There is just, abortion is really, really important, and we really, really like abortion, and because we really, really like abortion, we should uphold Roe.
	And any interest that the state has in preserving fetal life goes completely by the wayside, because after all, we really, really, really like abortion.
	Which is the extent of Roe in the first place.
	Roe and Casey, they make a right out of thin air.
	But they don't really provide any legal reasoning.
	The dissent does the same thing here.
	So now we're going to go through the dissent.
	And it shows you how close we came in the United States.
	You know, if Hillary Clinton had become president of the United States, If that had happened, then the constitution of the court, the number of people on the court, the people who are on the court, all of that would have been very, very different.
	You would have had a majority, presumably, to write into law any policy preference the left wishes, including all of the insane nonsense that they're currently pushing to fight freedom of religion, freedom of speech.
	You would have basic notions of male and female obliterated by the Supreme Court completely.
	That is how close we came.
	That's how close we came.
	So if there is one legacy that President Trump has left us, and honestly, it's astonishing that President Trump has not spent every waking moment since leaving office talking about this, especially since the release of that early leaked opinion, talking about how this is his great victory instead of jabbering about 2020 and the election.
	The great good that Trump did in the end was the nomination of Justices Gorsuch, And Kavanaugh and Amy Coney Barrett.
	Because without those nominations, this doesn't happen.
	This is a 5-3 and 1 concurrence decision.
	And if forced to it, it is highly doubtful that Roberts, if it had been split 4-4, it is very doubtful that Roberts would have provided the vote.
	If given the choice between striking down the Mississippi law and striking down Roe, and upholding the Mississippi law and striking down Roe, I have very little doubt that Justice Roberts, without any sort of margin for error, would have gone on the right side on this one.
	Roe would still be law in the United States, among other various and sundry, insane provisions.
	And so, says the dissent in this case, written by Breyer, Sotomayor, and Kagan, for half a century, Roe and Casey have protected the liberty and equality of women.
	I mean, right off the bat, the liberty and equality of women.
	No conception of the importance of fetal life.
	No balancing test.
	Nothing.
	We like abortion.
	Roe held, and Casey reaffirmed, that the Constitution safeguards a woman's right to decide for herself whether to bear a child.
	Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women.
	The government could not control a woman's body or the course of a woman's life.
	It could not determine what a woman's future would be.
	Respecting a woman as an autonomous being, granting her full equality, meant giving her a substantial choice over this most personal and most consequential of all life decisions.
	This is a policy argument.
	There is no constitutional argument here.
	Nothing about the law.
	This is simply, we like abortion.
	Rah, rah.
	That's what the dissent is.
	For 60 pages, it's we love abortion.
	Roe and Casey well understood the difficult and divisiveness of the abortion issue.
	The court knew Americans hold profoundly differing views about the morality of terminating a pregnancy.
	Even the court recognized that the state has a legitimate interest from the outset of the pregnancy in protecting the life of the fetus.
	So the court struck a balance, as it often does when values and goals compete.
	It held that the state could prohibit abortions after fetal viability so long as the ban contained exceptions to safeguards a woman's life or health, which, by the way, Safeguards to allow for women's life or health.
	Those are broad enough to encompass all abortions, effectively speaking.
	It held that even before viability, the state could regulate abortion in multiple and meaningful ways.
	But until the viability line was crossed, the court held a state could not impose a substantial obstacle on a woman's right to elect the procedure thought proper in light of all the circumstances and complexities of her own life.
	Today, the court discards that balance.
	But there was no real balance, according to the dissent.
	I mean, the dissent doesn't even take the Roe and Casey line, which is that they're important competing decisions.
	They kind of pay lip service to it, but what they really mean is that the only real interest here is that a woman has a right to terminate her pregnancy because the argument they make in the first paragraph about a woman's right to decide her future bodily autonomy, these are all arguments that extend all the way up to a point of birth.
	There's no reason to have a balancing test.
	And there's no reason for these justices to administer a balancing test according to their own logic here.
	Today, says the dissent, the court discards that balance.
	It says, from the very moment of fertilization, a woman has no rights to speak of.
	No, that is not what the court says.
	The court says that from the moment of fertilization, from the moment of conception, there is now a balancing test that states administer, that states get to decide, that people get to vote on.
	That's what the court says.
	Maybe there's a right.
	Maybe there's not a right.
	But the right is not constitutionally guaranteed.
	That is what they say.
	A state can force her to bring a pregnancy to term, even at the steepest personal and familial costs.
	Again, like, the question here, always and forever, for the left is, who's going to make this call?
	They say we should.
	Pryor, Sotomayor, Kagan, the rest of the left, they say it should be a bunch of Supreme Court justices, unless there's Supreme Court justices we don't like.
	So we should make a decision for everyone.
	It shouldn't be voted on.
	States shouldn't have a say.
	Localities shouldn't have a say.
	No one should have a say, except the people we agree with.
	Based on the Constitution, of course, which they don't even cite once to.
	We're fully several paragraphs in.
	There's not a citation to the Constitution anywhere in here, and I thought that was their job.
	An abortion restriction the majority holds is permissible, whenever rational, the lowest level of scrutiny known to law.
	And because, as the court has often stated, protecting fetal life is rational, states will feel free to enact all manners of restrictions.
	The Mississippi law at issue here bars abortions after the 15th week of pregnancy.
	Under the majority's ruling, though, another state's law could do so after 10 weeks, or 5 or 3 or 1, or again from the moment of fertilization.
	States have already passed such laws in anticipation of today's ruling.
	More will follow.
	Some states have enacted laws extending to all forms of abortion procedure, including taking medication in one's own home.
	They've passed laws without any exceptions for those when the woman is the victim of rape or incest.
	Under those laws, a woman will have to bear her rapist child or a young girl her father's, no matter if doing so will destroy her life.
	So too, after today's ruling, some states may compel women to carry to term a fetus with severe physical anomalies.
	Again, They are now making political arguments that are appropriate for a legislature.
	There is nothing here that cites to the Constitution of the United States.
	The left does not and refuses to understand the distinction between a court and constitutional jurisprudence and what a legislature does.
	All of these arguments are going to be made in legislatures all over the country.
	And states are going to decide differently on them.
	There will be some states that have exceptions for rape and incest.
	There are going to be some states, like New York, that says you can abort a kid until he's 95 years old after birth.
	And there are going to be states that are all in between.
	Florida is probably going to have an abortion law that is more liberal than Alabama.
	New York is going to have an abortion law that's more liberal than any place on earth.
	But what the court is doing, what the dissent is doing here, what Sotomayor Kagan and Breyer are doing here, is they are saying we should establish what is the proper balance.
	We, in all of our great hubris, we will decide.
	People don't get to decide.
	We get to decide.
	Based on nothing.
	Not based on the Constitution.
	Not based on our judicial role.
	Based on nothing.
	Because we like abortion.
	Abortion is important.
	Enforcement of all these draconian restrictions says the dissent will also be left largely to the state's devices.
	A state can, of course, impose criminal penalties on abortion providers, including some lengthy prison sentences.
	But some states will not stop there.
	Perhaps in the wake of today's decision, a state law will criminalize women's conduct too, incarcerating or fining her for daring to seek or obtain an abortion.
	As Texas has recently shown, a state can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion or to assist another in doing so.
	The majority tries to hide the geographically expansive effect of its holding.
	Today's decision, the majority says, permits each state to address abortion as it pleases.
	This is cold comfort for the poor woman who cannot get the money to fly to a distant state for a procedure.
	A procedure.
	Euphemistic.
	Above all, above all others, women lacking financial resources will suffer from today's decision.
	Again, these are all policy arguments.
	They have not cited, not once, the Constitution of the United States.
	Ever, ever, ever.
	Because the Constitution is irrelevant to these people.
	The Constitution is an obstacle to their goal, which is to run the country as they see fit.
	Whatever the exact scope of the coming law says the dissent, one result of today's decision is certain.
	The curtailment of women's rights and of their status as free and equal citizens.
	And so now the court has taken up the full-scale Justice Ruth Bader Ginsburg argument that if you restrict abortion, that this is some sort of discrimination against women.
	As the majority itself says, nope.
	Because again, just because women, and first of all, I find it very difficult to believe that the left even believes this anymore.
	Because, again, they say that men can get pregnant.
	And some women who are pregnant are men, they say.
	So, you can't make simultaneously the trans argument and also the you're harming women argument.
	But, even if you didn't abide by that idiotic anti-biological stupidity and you recognize that women are the only ones who can have babies, even if you recognize that, the restriction of abortion is not designed toward the inequality of women, Any more than a law that would restrict prostate surgery for some moral reason, if you could come up with one, would be discrimination against men.
	As soon as the left says, as soon as the dissent says, there are moral considerations that are countervailing, that a balance needs to be drawn.
	You can no longer argue that a woman's autonomy mandates abortion.
	See, they keep saying things like, we want to draw a balance, we need a balance, guys, we need a balance.
	But every argument they make is for no balance.
	It's for abortion till point of birth.
	Yesterday, the Constitution guaranteed a woman confronted with an unplanned pregnancy could, within reasonable limits, make her own decision about whether to bear a child, with all the life-transforming consequences that act involves.
	Okay, so first of all, Confronted with an unplanned pregnancy.
	I mean, again, the idea that every woman who has an unplanned pregnancy is quote-unquote confronted with this, as opposed to the reality of the statistics, which is that the vast majority of unplanned pregnancies are not the result of rape or incest.
	They are the result of either unprotected sex or consensual sex that is protected and then the contraception fails.
	That apparently means nothing.
	That choice is absolutely irrelevant to the court, or should be, according to the dissent.
	In thus safeguarding each woman's reproductive freedom, the Constitution protected the ability of women to participate equally in the nation's economic and social life.
	Again, this is a political argument by the left.
	It happens to be wrong and really specious, which is that without abortion, women can't be equal, which comes as a shock to all of the various women in American society, ranging from Amy Coney Barrett, who has seven kids and is a Supreme Court Justice, to Hillary Clinton, who has a kid and ran for President of the United States, to my wife, who has three kids and is a doctor, the notion that abortion is the key component in women's equality is perverse.
	But it also happens to be a political argument that has nothing to do with the court.
	Again, there are now several pages into this particular opinion.
	They have not once cited a constitutional provision.
	And then they try to say that we're going to overrule Griswold or Lawrence versus Connecticut or all the rest.
	The majority is eager to tell us nothing it does, cast doubts on precedents that don't concern abortion.
	But how could that be?
	The lone rationale for what the majority does today is that the right to elect in abortion is not deeply rooted in history.
	The majority could write as long an opinion showing that until the mid-20th century, there was no support in American law for a constitutional right to obtain contraceptives.
	So either one of two things must be true.
	Either the majority does not really believe in its own reasoning, or if it does, all rights that have no history stretching back to the mid-19th century are insecure.
	Either the mass of the majority's opinion is hypocrisy or additional constitutional rights are under threat, it is one or the other.
	So here, I will suggest that in a rational universe, the dissent is actually correct.
	As Thomas notes, In a rational universe, this is right.
	In a rational universe, Griswold would be under fire.
	Lawrence would be under fire.
	Obergefell would be under fire.
	These are all bad constitutional decisions.
	Now again, for the 100th time, even if you overruled Griswold or Lawrence or Obergefell, that would not mean that same-sex marriage would then be banned across America because it would just be reverted back to the States.
	It doesn't even mean that people who are arguing for the overturning of those decisions would not support laws that protected, for example, contraceptive, being able to obtain a contraceptive while unmarried, which was the case at issue in Griswold.
	But, again, the court is not going to go that direction because they're just not going to go that direction.
	As I said, I think they're wrong, but the court is not going to go in that direction.
	And then they talk about stare decisis and the value of stare decisis, and we need stare decisis.
	Of course, that only applies to the stare decisis that they particularly like.
	And they go through and they restate Roe vs. Wade, and they talk about the wonders of abortion, and the beauty of a woman's right to choose, and Casey, and how the general idea of an ability to define liberty according to your own wants, needs, and desires, that stuff is really the important thing.
	But, bottom line is this.
	They have no basis for their dissent.
	And they know they have no basis for their dissent because Roe was grounded in nothing.
	And so it's just 65 pages of, abortion is wonderful, we wish that it were still the law of the land via us, and we wish that we got to rule this stuff from the top.
	The conclusion of the dissent is pretty much, you know, the whole shebang.
	They conclude, quote, They say at the very end, and let me find the exact text before they get to the appendix.
	They say, Casey made the last point about undermining the court's legitimacy, explaining why it wouldn't overrule Roe, though some members of the majority might not have joined Roe in the first place. Casey explained the importance of stare decisis, the inappositeness of various other cases, the absence of any changed circumstances. The court, Casey explained, could not pretend that overruling Roe had any justification beyond a present doctrinal disposition to come out differently from the court of 1973.
	To overrule for that reason?
	Quoting Justice Stewart, Casey explained that to do so, to reverse prior law upon a ground no firmer than a change in the Court's membership, would invite the view that this institution is little different from the two political branches of the government.
	No view, Casey thought, could do more lasting injury to this Court and to the system of law for which it is our abiding mission to serve.
	Casey concluded that if they overruled Roe, the Court would pay a terrible price.
	The justices who wrote those words, O'Connor, Kennedy, and Souter, were judges of wisdom.
	Sorry.
	No, no, they were not.
	They would not have won any contest for the kind of ideological purity some court launchers want justices to deliver.
	By the way, ideological purity?
	Breyer and Sotomayor and Kagan are writing these opinions.
	But if there were awards for justices who left this court better than they found it, and who for that reason left this country better, and the rule of law stronger, sign those justices up.
	Oh!
	Slow clap for O'Connor, Kennedy, and Souter.
	Oh!
	Oh!
	They knew the legitimacy of this court is earned over time.
	They also would have recognized it can be destroyed much more quickly.
	They worked hard to avert that outcome in Roe.
	The American public, they thought, should never conclude that it's constitutional protections hung by a thread, that a new majority adhering to a new doctrinal school could by dint of numbers alone expunge their rights.
	And it's hard, no, it is impossible to conclude that anything else has happened here.
	One of us once said, it is not often in the law that so few have changed quickly so much.
	For all of us, in our time on this court, that has never been more true than today.
	In overruling Rowan Casey, this court betrays its guiding principles.
	Uh, no.
	This court upholds its guiding principle.
	The Constitution of the United States of America.
	That's the guiding principle.
	Not O'Connor, Souter, and Kennedy, who were not saints and were not even good justices.
	They made crap up, just like you are making crap up.
	But remember, according to the left, the court is just a political branch.
	When they say we want to uphold the legitimacy of the court, I have a question.
	Was Obergefell upholding the legitimacy of the court?
	How about Roe itself?
	How about Plessy?
	How about...
	How about Dred Scott?
	What upholds the legitimacy of the court?
	The only thing that upholds the legitimacy of the court is what Alexander Hamilton says in Federalist 78.
	A court that does judgment, not will.
	That's all.
	That's all it has ever been.
	And the minute that it does will rather than judgment, which is what the left wants from the court, always and forever, it undermines its legitimacy.
	They say, with sorrow for this court, but more for the many millions of American women who have today lost a fundamental constitutional protection, we dissent.
	Okay, well, you know what?
	This should be a day of joy for those who actually care about the protection of American children who will now be born rather than being stamped out in the womb under the broad auspices of a horrible Supreme Court decision that was acting well outside the scope of its constitutional duty.
	Today is an amazing day in upholding the legitimacy of the Supreme Court, doing what it was supposed to do.
	Doing what it was supposed to do.
	And that's the thing that really matters today.
	For all of Justice Roberts' worries about the Supreme Court and its institutional trust, if you trust the Supreme Court because the Supreme Court does what you want, rather than trusting the Supreme Court because it is a court and not a legislature, you're doing it wrong.
	The left has done it wrong for years and years and years.
	There was an opinion commentator yesterday who said, you know, it never occurred to me how much of liberalism's ascent has been because of the court.
	Yeah, well, it occurred to me.
	And it occurred to many of us on the right.
	It occurred to many of us who actually care about the Constitution.
	It occurred to a lot of us that the court had become a tool of will, not of judgment.
	Well, today, the court returned to being a tool of judgment, not of will.
	It's been doing that, really, over the course of the last term in a variety of decisions.
	That is a very good thing because if the court is no longer a court, it is just a political body.
	There is no reason for it.
	It should be abolished forthwith.
	If the court actually is just interpreting the Constitution the way it is supposed to be interpreted, as it does here, as it would have done more if it had gone with Justice Thomas's concurrence, then We would actually have something close to a balance of powers.
	We'd actually have the checks and balances you learned about in schoolhouse rock again.
	You'd actually have a constitutional government worthy of the name.
	The fact that the Supreme Court of the United States did the right thing here is a good thing.
	Now this is where the pro-life battle actually begins.
	Now it's up to you.
	Gotta go to your state legislature and ask them to protect unborn life if this is something that you care about.
	The battle returns to where it originally was in the states.
	We return to the question of persuasion.
	Remember, the Supreme Court took persuasion off the board.
	Persuasion was not relevant any longer.
	Persuasion was a matter of the past because the Supreme Court had spoken.
	Now we get to go back to persuading our neighbors to vote in particular ways for particular policies.
	These arguments all get to be argued in full.
	All the arguments that Sotomayor and Breyer And Kagan won't here.
	It will all be had.
	It will all be heard.
	And they will come out very differently in California than they do in Mississippi.
	And that is fine in the United States of America, barring some sort of broad national consensus about protecting unborn human life established at the federal level.
	Democrats right now, they're talking about pushing back, about codifying Roe v. Wade into law.
	That is not going to happen.
	It's not going to be codified into federal law.
	It is a matter for states to decide, states and localities to decide.
	And that's where it's going to have to be.
	The return of federalism is maybe the only thing that can save the country at this point.
	Considering our wide divides and a wide variety of issues, the return of an idea where we agree on a few key components at the top level of American government, and where checks and balances adhere And where there actually is the ability for one branch of government to act differently than another branch of government.
	All of that is a very good thing.
	The overturning of Roe versus Wade is a historic, excellent day for the country.
	It is a historic, excellent day for the protection of the unborn.
	And again, all it does is it means that we are now more responsible.
	Those of us who care about unborn human life.
	It is our job now.
	We no longer get to blame the Supreme Court for not doing anything.
	The Supreme Court did what it should have done originally, which is leave this up to the people of the United States.
	That is an unfettered, unmitigated good today.
	So, tonight, if you're a pro-life person, celebrate, and in the morning, get to work.
	It's the culmination of a 50-year effort by people who wish to preserve the unborn to fight back against the predations of a Supreme Court that overruled the Constitution of the United States in favor of leftist political preferences.
	It's a great day for the country, it's a great day for the Supreme Court, and it's a particularly great day for decency in the United States of America.
	So spend the weekend celebrating, then we get to work on Monday.
	Monday is the Ben Shapiro Show.
	The Ben Shapiro Show is a Daily Wire production.
	Copyright Daily Wire 2022.
	Hey everybody, this is Andrew Klavan, host of The Andrew Klavan Show.
	You know, some people are depressed because the republic is collapsing, the end of days is approaching, and the moon's turned to blood.
	But on The Andrew Klavan Show, that's where the fun just gets started.

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