All Episodes
Previous Next
Sept. 24, 2022 - The Michael Knowles Show
01:15:08
Choosing Life: A constitutional history of Abortion - Carter Snead
| Copy link to current segment

Time Text
The question, the dispute between pro-lifers and people on the abortion rights side of the equation is, does everyone who is a human being deserve the basic protection of the law, or only some people?
That's, in a nutshell, the difference between the pro-life position and the pro-choice position.
The pro-choice position says, and Planned Parenthood v.
Casey and Roe v.
Wade say that...
Individuals, women, pregnant women can decide for themselves what the moral standing of the unborn child is.
Is it a person?
Is it not a person?
If they choose it's a person, then they can act like it's a person.
If they choose it's not a person, then they can take legal violence against it in a way that you wouldn't be permitted to against a person.
The personhood of the unborn child as a matter of constitutional law in this country, as interpreted by the Supreme Court, is that it is a relative value.
And they are ignoring the proposition that all human beings are created equal, which is a normative proposition that I think includes every living member of the human family born and unborn.
They're rejecting a deep normative good of human equality that I think is embedded in our nation's best traditions.
One major problem for the pro-abortion movement has always been why, if the Constitution includes a legal right to abortion, no one seemed to notice that right for the first 184 years of our nation's history.
Carter Sneed, professor of law at Notre Dame, takes a look at Roe v.
Wade in the context of American history and the Western legal tradition.
Wait for me now.
I might come around, I might come around to live.
I might come around, I might come around. I might come around.
Right now, I would strongly recommend you go to hallo.com slash choose life because today's world is a scary one.
Too many people don't seem to care about the truth.
And I would suggest that that's all rooted in people becoming less or really just anti-religious.
That's why it's more important than ever to keep our relationship with God strong.
Hallow is the number one Christian prayer app in the United States.
It's like Calm or Headspace, but rooted in Catholic faith.
It is the perfect resource to deepen your relationship with God and find peace through audio-guided prayer and meditation.
Several of Hallow's meditations encourage you to choose life and to pray for others to choose life, such as their Litany for Life with Lila Rose.
Hallow is free to download It will help you find peace and calm throughout your day.
So do it.
Do it right now.
Download the app for free at hallo.com slash choose life.
That is hallo.com slash choose life.
Here's Carter Sneed.
So I'm Carter Sneed.
I'm the director of the DeNicola Center for Ethics and Culture here at the University of Notre Dame, where I'm also a professor of law and concurrent professor of political science.
Before joining the faculty at Notre Dame in 2005, I served as general counsel to President Bush's Council on Bioethics.
And I think, you know, just to jump right into it, we're centering around kind of four lies or four steps that the pro-abortion industry took kind of pre-Roe to make abortion more kind of widely accepted in the United States.
Yeah.
And I'd love to hear to what extent that played a role, if any, in both argumentation during the proceedings of Roe v.
Wade when it was before the court and if it played any role in the court's decision or later legal decisions on the issue of abortion.
So which of the lies that you have in mind?
So first one, the pro-abortion movement promoted the idea that abortion is purely a medical issue instead of a moral issue.
And so I guess the first question is, you know, did that, you know, by the time Roe v.
Wade was being argued in the court, had that worked its way into the legal arguments?
Yeah.
So Harry Blackmun had a deep connection to the Mayo Clinic.
He was from the Minneapolis-St.
Paul area.
He was deeply attached to physicians and physicians' rights.
And in his conception and execution of the opinion in Roe v.
Wade, that really comes through.
It comes through almost as a pro-doctor opinion more so than even a pro-woman opinion, which has gotten the attention of a lot of feminists who are rightfully concerned about the orientation of Justice Blackmun's reasoning.
But the most important thing, it seems to me, about Roe v. Wade, the case, is that every single factual representation that Justice Blackmun makes about the sociological realities of abortion, about the safety of abortion, about the history of abortion, about the safety of abortion, about the history of abortion, both as it's practiced in Western culture, but also in terms of the way abortion was treated in American law from the founding or even the common law before the founding up until 1973.
None of that information was ever presented at the trial level, which is where in the law, in the United States at least, we sort out the contestant to disagreements over facts.
There's a truth-finding process of the trial in American law and American courts that's an adversarial nature.
You have two parties presenting their competing vision of the facts.
You have expert witnesses.
And you have a jury usually or a judge sitting as a trier of fact who resolves these factual disputes by a pretty compelling standard of evidence so that when you get up to the Supreme Court or even the lower appellate courts, you can have confidence in the truth of the factual assertions that are part of you can have confidence in the truth of the factual assertions that There was no factual record in Roe v. Wade for unusual procedural reasons.
It came up through the trial courts and it was resolved by the trial courts in Texas strictly as a matter of law.
They said, well, we think that Texas's laws restricting abortion implicate the Ninth Amendment.
The Ninth Amendment's guarantee or reservation to the people of rights that are not here enumerated or not just, you know, The exact language of the Ninth Amendment is somewhat mysterious and had been thought of as a pretty...
Inert part of the Constitution until 1965 in a case called Griswold v.
Connecticut involving contraception.
In a concurring opinion by Justice Goldberg, he cited the Ninth Amendment as a possible source of authority in the Constitution for a right to privacy that included the right of married couples to use contraception.
So the trial court in Texas simply said, we don't need to find any facts here.
We don't need to resolve any questions about history or science or sociology or medicine or anything like that.
We're just going to look at the law and say, well, it violates the right to abortion, which is part of the right to privacy.
And that was a real innovation in the law.
No one had ever really seriously made that case before.
And so it comes to the Supreme Court directly from the trial court without any factual record.
So Justice Blackmun goes on and on in the opinion about the safety of abortion versus childbirth, about the history of abortion, about the history of the law of abortion, none of which was tested for accuracy or validity in the trial court below.
It's all just his own rank speculation based on his research, which, by the way, involved relying on a handful of larvae articles written by the former general counsel of NARAL In spinning out a completely tendentious and false account of the history of the way abortion had been treated in the law, falsely stating that there was a generalized liberty, interest in abortion prior to the middle of the 19th century in the United States, it's utterly false.
We have indictments for abortion stretching back to the founding era, before the founding era.
It was always a common law crime and abortion restrictions were codified in the middle of the 19th century in statutes.
But Justice Blackmun completely took hook, line, and sinker this entirely made-up and falsified history of abortion and relied on that to find the proposition that a right to abortion was in some ways consistent with the history and tradition of the American constitutional system, which is false.
And so just for the audience, can you give us a sentence on who was Justice Blackmun?
Justice Blackmun was a justice appointed to the Supreme Court of the United States.
He was on the U.S. Court of Appeals for the Eighth Circuit, which includes the geographic region of Minnesota where he was from.
He wasn't especially distinguished, I don't think, as a jurist.
And he Looking at his papers now, actually, the archives from his time on the court have been opened, and the story of Justice Blackmun as a justice is, I don't think, a very positive story.
It's a story of someone who was very insecure, who relied heavily on the work of his clerks, which are recent law school graduates, in some cases quite ideological in their orientation.
And the papers that we see from around the time of Roe v.
Wade show that Blackmun was really grasping around for some kind of a theory about how to justify a right to abortion, even though, of course, there's nothing like that mentioned in the Constitution, not even concepts that are related to abortion in the Constitution, given the fact that it is not merely a medical procedure.
Which, by the way, medical procedures are routinely regulated by the states.
It's entirely the purview of state law to regulate the practice of medicine under what's called the police power of the state to regulate for the health, welfare, and morals of the people inside of that state.
The federal government doesn't regulate the practice of medicine virtually at all.
So it's a very strange thing to constitutionalize the regulation of medicine.
To claim that somehow a right to privacy is implicit in the due process clause of the 14th Amendment that entitles essentially no regulation of abortion at all in the first trimester, only very minor regulation of abortion in the second trimester.
Roe v.
Wade says in the second trimester of pregnancy, the only state interest that supports regulation is the state trying to make abortion safer for women.
And then third, in the third trimester of pregnancy, Justice Blackmun said in Roe that the state can regulate or restrict abortion, but it must always make an exception for the life of the mother, which of course the Texas law already did, or the health of the mother, which it didn't really define, but the reasoning or the health of the mother, which it didn't really define, but the reasoning of Roe points to very broad conception of health, including not just physical, not just even emotional health, but also financial And then in the companion case, decided on the same day as Wade, called Doe v.
Bolton, the court is even more explicit.
Justice Blackmun says, in making medical judgments about health, practitioners take into account not merely physical or emotional health, but also any aspect of a woman's well-being, which is essentially an exception so broad that it swallows the rule.
And if that weren't bad enough, the case also reposes the authority and the abortionist to decide whether or not such a health interest is implicated.
So the fox is guarding the hen house in Doe v.
Bolton and Roe v.
Wade such that when you put those two cases together, you end up with a right to abortion that's more extreme than any right to abortion almost anywhere in the world with the exception of a handful of other countries that allows essentially abortion on demand up to the moment of birth.
And the Washington Post did an interesting fact check a few years ago and confirmed that that in fact is true.
That is the effect of Roe and Doe.
Why was Justice Blackmun delivering the decision for the court?
The chief justice of the Supreme Court assigns the opinion to be written to a justice who is in the majority.
And so Chief Justice Berger assigned the opinion to Justice Blackmun in that case, and that's why he had the authority to write the opinion in Roe v.
Wade, which is a 7-2 decision.
Two dissenting justices were Chief Justice Rehnquist, later Chief Justice Rehnquist, and Justice White, who was appointed by John F. Kennedy, so a Democrat appointee.
And you mentioned NARAL and Justice Blackmun in the opinion quoted NARAL a lot and facts from NARAL. He quoted several Larvee articles.
Larvee articles written by a man named Cyril Means who was counsel for NARAL although he didn't, as I understand it, identify himself as counsel for NARAL in the articles themselves.
These articles were entirely fanciful histories of American law concerning abortion that completely inverted and disregarded volumes and volumes of scholarship by people who had actually focused on these questions.
And it was a piece of advocacy.
It was a piece of advocacy written by literally an advocate for abortion, one of the most important abortion advocacy organizations in the country.
And Justice Blackmun relied on them as if they were scholarly publications by a disinterested professor.
Right.
And I think NARAL is interesting specifically because one of the founders of NARAL was Bernard Nathanson, who plays a significant role in the history of abortion.
Can you talk about that tie between a lot of the materials used by the court for the facts and then Nathanson and who he was?
So it's a great question, and there's an interesting connection, especially along the theme of dishonesty.
So Cyril Means' so-called history of American law regarding abortion is completely made up.
It's fanciful.
It's false, probably knowingly false, and relied on by Justice Blackmun as if it were true, and that creates devastating effects for American jurisprudence and the law and everything else that abortion has touched and corrupted since then.
But the author of the articles that Justice Blackmun was relying on was a man named Cyril Means who was affiliated with NARAL, the National Abortion Rights Action League, later called NARAL. In fact, I think it had a previous name as well, which is different from… It was always the same letters but different meaning assigned to the letters.
Anyway, one of the co-founders of NARAL is a man named Bernard Nathanson who was an OBGYN who performed tens of thousands of abortions but then had a change of heart, had a kind of conversion experience and realized that he had to spend the rest of his life making up for the fact that he had taken so many lives and contributed to abortion as a policy matter.
One of the things Bernard Nathanson said in his memoir was that the organizers of NARAL understood they needed some powerful narratives to try to change people's minds.
They simply started making things up.
And one of the things that they made up was the proposition that there were tens of thousands of women who would die every year from so-called back-alley abortions, illegally performed abortions, in those jurisdictions where abortion wasn't available.
Bernard Nathanson said that is simply made up.
It's simply a made up number.
They sat around a table and just from whole cloth made up that information, which of course has become a central talking point in the abortion rights discourse community, namely that if we ban abortion, abortion will be driven underground and women will die.
You may recall Susan Collins during – I think it was during the Kavanaugh hearings and this is true – probably was true during Justice Gorsuch and Justice Barrett's hearings as well.
Thousands of coat hangers sent to congressional offices, senator offices, including Senator Collins to try to convince them that they have to vote against these nominees to be justices because Roe v.
Wade hangs in the balance and women's lives hang in the balance.
But Bernard Nathanson said that's simply a lie.
Just in the same way that Serial Means of History was a lie.
And one can say, I think, fairly that the sort of abortion rights advocacy, the abortion rights movement, the law of abortion is built on a house of lies.
And that brings us to – you perfectly covered that second lie, which is that thousands of women a year would die from abortion.
That's the second point that we kind of are organizing the film under.
The third is depicting the pro-life movement as a group of religious zealots who just want to force their religious beliefs on an unwilling country.
Can you talk about – did that work its way into the court?
Yeah, absolutely.
So I would say – well, so there are certainly justices on the court, later justices, Justice Stevens for example, John Paul Stevens.
And there are some other commentators who take this position, that the pro-life position is a religious position and therefore cannot, consistent with principles of separation of church and state, be a basis for legislation or any kind of state action.
Now, it may sound like a good talking point, but a moment's reflection realizes how bankrupt that idea is, because the pro-life position rests on the same proposition that homicide laws rest on.
In fact, prior to Roe v.
unborn children are protected by homicide laws.
In fact, to this moment, unborn children are protected by many homicide laws with exceptions carved out for abortions.
You can be sent to prison for life for killing an unborn child against a mother's wishes in many jurisdictions in this country, in Unborn Victims of Violence Act statutes, for example.
And so what I would say then is that it's a basic principle of law that any libertarian would even embrace, that the role of law and government is to protect individuals from private violence.
So it assumes what it sets out to prove to say that the pro-life position is no more religiously based than homicide laws are religiously based because they're connected to the fifth commandment that thou shalt not kill.
It is just because a law – the goods that a law aims at correspond to goods that are embraced by religious people or religious traditions doesn't make the law invalid.
Otherwise, all of our laws would be invalid.
Anti-poverty laws would be invalid since they seek to care for the poor.
Laws against theft would be invalid.
It's simply a category mistake to suggest that a law aimed at a good that also is shared by a religious.
Now, it is true that a lot of religious people are pro-life, but it's certainly not limited to religious people.
Anyone who cares about protecting the weak from the strong, especially from lethal private violence, can be pro-life.
And we see that even now in the modern pro-life movement.
We have a great diversity of points of view.
We have atheists for life.
We have libertarians for life.
Of course, we have religious people for life.
And on and on and on.
It seems to me that it's a very diverse movement, at the core of which is the proposition that everybody counts.
law and moral concern.
And yes, that's a position that corresponds to many religious traditions, but it's certainly not limited to that.
And I would say further that there's been an effort to paint pro-lifers not merely as religious zealots, but most recently the rhetorical move, which is also false and dishonest, is that somehow it's connected to white supremacy, that pro-lifers, and there's a very strange history that pro-lifers, and there's a very strange history of evangelicals in public life that involve appeals to segregation, which weren't working.
And so somebody else said, maybe if we appeal to abortion, we can motivate these evangelical voters.
Well, the truth of the matter is that evangelical Christians, originally in the 1970s, Protestants were not supportive of the pro-life position.
And In fact, there were a lot of very prominent Protestants who were pro-choice.
It was really the Catholic Church traditionally that carried the pro-life banner.
Since then, evangelical Christians have become very strong supporters of the pro-life movement and important allies in that effort among the coalitions that fight for life.
But But there's a historian named Daniel Williams who wrote a very important book several years ago tracing the Right to Life movement into the more conventional civil rights movements, rights for workers, rights for minorities that experience discrimination, rights for women, and so on.
So it is a movement that has its roots in In social action and on behalf of the weak and the voiceless.
And he demonstrates that with respect to voluminous historical record.
It's a very useful book and it's important to put the lie to the false and scurrilous slander that pro-lifers have something to do with white supremacy.
Now I'll tell you somebody who did have something to do with white supremacy and that was Margaret Sanger, the founder of Planned Parenthood.
Now, I'm not going to say that she's a racist.
I don't know if she's a racist or not, but I will tell you the historical record shows that she addressed in the late 1920s the women's auxiliary of the Ku Klux Klan in Silver Lake, New Jersey.
Now, she may say or her supporters may say she's not a racist, but she at least thought that her message would be welcomed by a profoundly white supremacist organization.
So I'll just leave that there.
And moreover, the kind of eugenics that she was an open proponent of.
Obviously have racial overtones and others who are more deeply connected to the pro-choice movement were openly racist in their eugenic embrace of trying to eliminate not just the poor and the disabled but also certain minority groups.
And finally, I'm curious to hear how arguments about abortion's impact on welfare and the well-being of mothers, how that played into arguments in the court and decisions of the court.
So the fundamental source of the right to abortion, as articulated by Justice Blackmun, really came and arose from his normative balancing of what he took to be the burdens of an unwanted or unplanned pregnancy on a woman versus the interest on the other side of the ledger, namely the state's interest in protecting nascent human life namely the state's interest in protecting nascent human life in the womb.
Now, very early on, he says, I'm not going to take a position on the moral status of the unborn child, but then he zeroes out the moral status of the unborn child by saying that the interests of the unborn are not weighty enough to overcome the interests of a woman whose life and liberty and And future and happiness is threatened by this unplanned pregnancy.
It's not just the woman's life, liberty, future, and happiness, but also the entire community and family in which the unborn child emerges.
And so he says it's that balancing of interests and priorities that leads him to say, well, given the overwhelming interests of a woman in that context, we have to read into the 14th Amendment a right to abortion.
It's essential that that be there.
It has to be there for our nation to be just.
Women have to have recourse to abortion to avoid the burdens and harms that come with an unplanned pregnancy or an unwanted pregnancy.
But not just an unwanted pregnancy, I should say, but unwanted parenthood.
The burdens that he talks about are not merely the physical burdens or psychic burdens of pregnancy, but the burdens of raising a child that you don't want or you can't care for.
One can immediately see that, well, abortion is not the only way of avoiding having the problem of raising a child that you don't want or don't care for.
There are many non-lethal alternatives, including obviously adoption or strengthening the social safety net to help women care for their own children.
But the assumptions of Justice Blackmun, again, based on his own rank speculation, without any trial record to rely upon, social science evidence to rely upon, was that the burden on women is so great that there must be a right to abortion that is grounded in privacy.
And then in 1992, in an opinion called Planned Parenthood versus Casey, Justice Kennedy writing for a three-judge plurality doubles down on that proposition, shifts from the concept of privacy to the concept of liberty, shifts from the trimester framework, which by the way, no one argued for it in the Roe case.
Justice Blackmun invented that too.
To a binary pre-versus post-viability framework.
Prior to viability, the state can't unduly burden a woman's right to abortion.
After viability, it can restrict abortion so long as it has the open-ended health exception that we talked about a moment ago, which swallows the rule.
It's so broad as to swallow the rule.
But in Justice Kennedy's opinion, or at least what's attributed to Justice Kennedy, it's signed by three justices in a plurality decision.
He spends a lot of time talking about women and their freedom to participate in an equal way in the economic and social life of the nation being threatened by an unplanned pregnancy such that in order to be equal to men, in order to live their dreams in the way that men can, they have to have recourse in order to live their dreams in the way that men can, The state cannot impose its own vision of when life begins.
Now, of course, the state always imposes its own vision on who counts as a person outside of the abortion context.
People are not able to define for themselves who among their neighbors is a human being and who is not, whose lives they can take with impunity when it advances their interests.
That's just crazy talk, right?
But in this context, we assume that the unborn child has no such moral standing, and so they implicitly declare the unborn child to be subpersonal.
And, of course, there's no constitutional warrant for that.
There's nothing in the Constitution that says that unborn child is not a person.
There's nothing that says that the state can't recognize the personhood of the unborn child.
That's just all – it's all made up.
And so the fiction here also – and this is something that pro-life feminists do a very good job of articulating.
Erica Bakayaki and Abby Johnson and Lila Rose and Alexander DeSanctis, they all talk about how women's freedom and flourishing do not depend on the right to abortion.
And an abject falsehood is that it was the right to abortion causally that gave women this freedom and capacity to participate equally in the country's flourishing.
When in fact, women's success was on the upswing prior to Roe v. Wade, pursuant to cultural changes and legal changes that had nothing to do with abortion.
And in the United States recently, we've seen the abortion rate declining as women's success climbing, which would show that, again, there's no relationship between abortion and women's success.
They call this the reliance interest argument in Planned Parenthood versus Casey, which relates to questions of stare decisis.
Can you overturn Roe v.
Wade?
or have women's reliance built up over time on access to abortion that if you were to take it away, then you would hamstring them.
But you look at countries like Chile or Ireland prior to the repeal of their Eighth Amendment, which was a pro-life amendment of their constitution.
Women were fine in those countries.
Women weren't enslaved in those countries in the same way that women weren't enslaved prior to 1973 in the United States by virtue of pro-life laws.
If you were to encapsulate the impact that Bernard Nathanson and NARAL had on Roe v.
Wade several years later, how would you encapsulate that in a sentence?
NARAL had an extraordinary influence on Justice Blackmun's thinking about the way abortion was treated in American law.
And it's also true that the claims, again, not presented at trial, that abortion is safer than childbirth, which is another claim that you hear all the time, and of course NARAL trumpeted that, was enormously influential on Justice Blackmun because his own scientific was enormously influential on Justice Blackmun because his own scientific medical judgment, again, he was just riffing, right?
He's not a medicine.
He's not a scientist or a doctor.
He was just riffing.
He said, well, it seems to me that abortion is safer than childbirth, at least until viability or until the second trimester.
So the state's interest in restricting abortion for women's safety purposes is at zero in the first trimester.
So there can be no restrictions in the first trimester.
In the second trimester of pregnancy, then when abortion becomes more risky, then the state can regulate in the interest of protecting women, but still not in the interest of the unborn child until the third trimester.
I mean, what I would invite viewers to think about is this.
The role of a justice is to interpret the Constitution.
The clause of the Constitution that Justice Blackmun purported to interpret, in his opinion, Roe v.
was the phrase, no person shall be deprived of life, liberty, or property without due process of law.
Enacted in 1868, ratified in 1868 at a time when abortion was criminalized virtually everywhere in the United States.
The states that ratified the 14th Amendment did not believe, had no inkling that about 100 years later, someone would say that prevents the states from restricting abortion and protecting unborn children.
The state of Ohio, shortly after ratification, tightened its criminal restrictions on abortion to apply from the moment of conception on the ground, in the words of the drafters of the law, that abortion is child murder.
Nobody who had heard of the 14th Amendment in 1868 believed that it had anything to do with abortion, much less prevented the states from protecting unborn children, which almost every state did in that context.
It wasn't until 100 years later that Justice Blackmun, through his tendentious and false reliance on Cyril Means, said, oh, you know what?
That was just a weird blip in the midst of our nation's history, which is really more about doctors protecting their turf from midwives.
And it didn't actually have anything to do with unborn children.
It was kind of patriarchal and it was professional sort of special pleading on the part of doctors, which is completely false.
But the fact that Justice Blackmun could say that means that he could reject the argument that the right to abortion is in no way implicit in the nation's history and traditions, which is obviously true.
There's no sense at all in which up until 1973, abortion had any roots in American constitutionalism, American law, the American legal tradition.
It was quite the opposite.
And it's only rules that are implicit and embedded in that kind of tradition that rise to the level of unenumerated rights that can be vindicated and that justices can point to even though they're not written anywhere in the Constitution.
So it's genuine.
I mean, I think the biggest lie of all, speaking as a lawyer, is the notion that the due process clause of the 14th Amendment has anything to do with abortion at all and in any way restrains the states from protecting the weakest to most vulnerable unborn babies and their moms and families.
Rose overturning was an historic victory, but abortion is still legal in many states, and the only way we'll truly see lasting cultural change is by changing the hearts and minds of pro-abortion people.
Live Action is the most prominent pro-life online group in America, reaching millions of young men and women with the truth about the killing of pre-born children.
No other organization reaches as many people online as Live Action.
Its content has proven to transform opinions from pro-abortion to pro-life.
Most pro-choice people don't know what abortion actually entails.
When they see the brutality it inflicts on pre-born children, they rethink their stance.
You can save the lives of countless children by making a donation today at liveaction.org slash dailywire.
That's liveaction.org slash dailywire.
Live Action is a nonprofit organization that I support.
They've done tremendous work in building a culture of life.
Please make a donation today to help them reach young people with the truth so we can wipe out abortion in this country once and for all.
Donate today at liveaction.org slash dailywire.
That's liveaction.org slash dailywire.
And thanks for your support.
It is simply true that there have been indictments and prosecutions for abortion.
Prior to the founding of the United States of America, the U.S., we brought the common law with us.
The common law, abortion was a crime.
Now, it was complex trying to prosecute abortion because when you prosecute any crime, you have to have not just a state of mind, mens reis, you have to have an actus reis.
You have to have something that you can point to that will cabin the discretion of the prosecutor and put people on notice that what they're doing is unlawful.
So how can you meet the standard of evidence if you want to prosecute an abortion?
How do you know a person was pregnant?
The only way to know people were pregnant is to have the external signs of being pregnant.
And so when we were not good at determining when a person was pregnant, it was part of the law that the prosecution would happen later in pregnancy or later in pregnancy there'd be more severe restrictions or penalties.
And this was true From the founding of the American Republic and then in the beginning of the 19th century.
So we have common law, right?
Which is judge-made law that is just as enforceable as codified law, positive law, laws that are instantiated in statutes and regulations.
And abortion was a crime at common law.
Before the founding, during the founding, there were indictments.
And my colleague John Finnis has done an extraordinary job detailing the historical record on that.
My other colleague John Keown at Georgetown has also detailed this.
There's a wonderful professor of political science, Justin Dyer, at the University of Missouri, who's written at length about the historical record and the misuse of history to promote abortion.
And Before the nation's founding, abortion was deemed to be a serious legal wrong.
And then as we became better and better and our sense of embryology and biological development became more sophisticated, what we see is a moving back of the moment at which abortion will be prosecuted to the moment of conception.
We saw that in the 19th century.
And then there's a big debate around the meaning of quickening, whether a woman quick with child simply means pregnant or whether it means at the stage of development when you can feel the child moving.
There's a lot of dispute about that.
It's certainly not clear to me that there was any kind of moral distinction being drawn in the law between an earlier stage unborn child and a later stage unborn child.
These were problems of proof.
These were problems of process that the criminal law had to have extrinsic, verifiable evidence to rely upon in order to mount a prosecution in those instances.
But the false history, the dishonest history is, oh, prior to the codification and positive law of restrictions on abortion, we have to infer that there was a liberty to obtain an abortion.
Nothing could be further from the truth.
Just because something's not codified doesn't mean there's a liberty interest, especially if it's illegal at common law.
It's a complete and utter, I think, intentional distortion of history on the part of Cyril Means, which sadly has been repeated ad infinitum by abortion rights supporters.
It's been repeated by justices.
It's been repeated by – every year we have an amicus brief in these kinds of cases signed by historians repeating the demonstrably false propositions of Cyril Means, historians motivated by advocacy rather than scholarship.
So because Cyril Means plays such a big role in this discussion, can you give audiences a brief kind of almost encyclopedia entry of who was Cyril Means?
Well, Cyril Means was simply an advocate who was affiliated with NARAL. Cyril Means was a man who was passionately committed to abortion rights, to abortion itself.
And he undertook the task of generating false histories in law review articles that then served that Justice Blackmun then relied upon in multiple times in the decision in Roe v.
Wade, the false representations of which have been, again, repeated over and over again by advocates for abortion since then.
Cyril Means falsely stated that there was a liberty interest in abortion prior to the 19th century in the United States, which could lead Justice Blackmun and others to claim completely implausibly in the run up to Roe v.
Wade that the right to abortion is deeply rooted in Americans' history and tradition, which is the standard, one of the standards, for finding an unenumerated, unwritten right in the Constitution.
What was the common law view prior to codification in the 19th century?
What was the common law view of abortion?
Abortion was a crime at common law, not just at the founding of the American Republic, but before the founding in England as well.
And has Planned Parenthood, has the abortion lobby, what are they arguing about the history of abortion?
So...
The grounds for abortion rights advocacy in the courts has shifted.
In fact, I think it's right to say there's not a single justice ever since Roe v.
Wade, certainly no justice sitting on the court right now, that has ever defended the reasoning of Roe v.
Wade.
Roe v.
Wade, in some ways, is an embarrassment to the court.
Planned Parenthood v.
Casey didn't reaffirm Roe or didn't reestablish or reground a right to abortion because it was persuaded by the extraordinary persuasive reasoning of Roe v. Wade.
Probably for obvious reasons, abortion rights advocates really don't argue the constitutional interpretation side of Roe and Casey.
What they argue is the common law principle of stare decisis, which is the principle that invites justices to reaffirm prior decisions, even if they were wrongly decided, in the interests of stability and transparency and to prevent sort of radical disruptions, social disruptions in in the interests of stability and transparency and to prevent sort of radical disruptions, social disruptions in areas of life where people have In fact, in Planned Parenthood v.
Casey, the court spent most of its time talking about stare decisis, not about the original reasoning of Roe, which, by the way, it mostly replaced and abandoned.
But it's perfectly clear that there is no consistent, stable thread of abortion jurisprudence in American law.
It is a story of an outcome, the right to abortion in search of a rationale.
Originally, it was the right to privacy.
Then it became the right to liberty.
Then it became something like equality.
Originally, we had the trimester framework of Roe, which was replaced by a pre versus post viability binary framework in Casey, which was then replaced again in 2016 with the open-ended burdens and benefits balancing that Justice Breyer invented.
And then in the June Medical Services case, the most recent case on abortion we've had, you don't have five justices who agree on what the holding of Casey was.
So that kind of instability in the law itself already undercuts the proposition that stare decisis is a justification for retaining the right to abortion.
It is a constantly shifting standard, constantly shifting norms, constantly shifting judicial tests.
There is no there there to retain.
It's a protean, ever-shifting source of justification that is, again, meant to advance a substantive outcome, a policy outcome, that is to say the right, basically unlimited right to abortion.
So the justices, when they look at this in the Dobbs case, to say, well, any reasonable person has to admit that Roe v.
Wade was wrongly decided.
There is no deeply rooted right to abortion in American history or constitutional tradition.
There just isn't.
So the only plausible grounds to retain Roe and Casey or the right to abortion is this principle of stare decisis.
But if you apply the rules of stare decisis, the questions that you're supposed to ask, Is there a set precedent on which people have relied?
No, there's not.
It's constantly changing.
Moreover, the concept of reliance in American law has never meant, am I prospectively building my life around some rule in the past?
Reliance is always set agreements that are already in place that would be disrupted by a change in the law.
It's a backwards looking thing, not a forwards looking thing.
And so all of the reasons that advocates for abortion say stare decisis supports retaining a right to abortion in American jurisprudence, in fact, they have no leg to stand on because the law was egregiously wrongly decided in the first instance.
It's had horrific real-world and jurisprudential consequences.
And no one could honestly tell you what the law of abortion is until the court says what they think it is.
It's changed five or six times since 1973.
So stare decisis is not an adequate grounds, but it's the strongest argument abortion advocates have.
And despite the obvious medical and historical inaccuracies that were kind of crucial to Roe at the time, do you still see those as prominent arguments in the kind of public-facing pro-abortion?
The two most potent, undemonstrated, let's just say unproven assertions, Okay.
which has never been demonstrated.
In fact, it has been shown that the claims about that emerged from comparing completely incommensurable data sets that have nothing to do with each other.
Now, it would take a long time to explain why that is.
But suffice it to say that it has never been empirically demonstrated that abortion is safer than childbirth.
And you hear that over and over and over again.
Dianne Feinstein says that every single time there's a judicial nomination to the Supreme Court by a Republican president.
She'll just repeat, isn't it true that abortion is safer than childbirth?
It's never been demonstrated.
It is an undemonstrated assertion, and yet it carries a lot of weight.
But even more than that, it seems to me, are the undemonstrated and indeed I think demonstrably false sociological assertions that women's success in America depends on a right to abortion.
Women can only realize equality with men Both in their forms of sexual expression and in their participation in the economic and social life of the nation if they have access to abortion in the event that contraception fails or they have unprotected sex that results in a pregnancy.
It seems to me that that argument is the foundational normative argument for the right to abortion in 2022.
The foundational argument, the foundational normative argument for abortion is an argument about reproductive justice and That is simply false,
demonstrably false.
But it is the most important normative argument that abortion rights supporters have.
And by the way, if Roe v. Wade and Planned Parenthood v. Casey are overturned, it will not result in the criminalization of abortion in America.
It will return to the political branches the freedom that, by the way, is enjoyed by nations around the world, including countries that are much more progressive than we are, countries, by the way, who have much more restrictive laws on abortion than we do, countries like France and Germany and the Netherlands. countries like France and Germany and the Netherlands.
Pick a country and they have restrictions on abortion that we don't have in our law by operation of Roe and Casey.
All overturning Roe and Casey will do will kick the matter back to the political branches where we can finally reason together in the political sphere about how best to protect women and children and families.
And so the claim that women will be subjugated like The Handmaid's Tale if the court overturns Roe and Casey is Simply is false.
And we've seen, to my disappointment, states anticipatorily liberalizing their abortion laws in dramatic ways.
We've seen this in Colorado most recently, basically legalized abortion up to birth, defined out of the circle of humanity, embryos and fetuses.
We've seen that in Illinois.
We've seen it in New York.
We've seen state supreme courts find a right to abortion in their state constitutions like Kansas did a few years ago.
So if Roe be Wade and Casey are overturned, that's just the beginning of the legal and political struggle to protect women and children born and unborn and families.
It's not the end.
Regardless of what the law decides today, tomorrow, or even 10 years into the future, why is it important that people understand a true history of the law and medicine and just social debate over the issue of abortion?
Yeah.
I mean, I think truth is essential to any kind of reasoning together about our shared life and about the common good and human dignity.
And the idea that the jurisprudence of abortion is built on lies, factual lies about science, about when life begins, about medicine, about history and tradition, but also moral lies about what it means to be a parent and what a child is entitled to vis-a-vis his or her parents in the care that They don't have to earn, but that they simply are entitled to by virtue of that human relationship of parent and child.
It seems to me that right now, the truth is the single best asset in the pro-life movement's arsenal of persuasion.
We have science on our side.
There's no debate that there's not a living human being inside the mother's body who is destroyed in a violent fashion in abortion.
The history of the American constitutional tradition is on our side.
It is deeply rooted in our nation's tradition history to allow states to protect unborn children and their mothers and families.
The sociological truth of the matter is that women don't need abortion to be successful and to flourish.
The truth of the matter is that we're Better than a country that kills its unborn children on an industrial scale and forbids the elected branches of government from extending even the basic protections of the law.
When did abortion become illegal across the majority of states in the United States?
1973.
Roe v.
Wade undid the laws of every single state in the union and transformed them into essentially a regime of abortion on demand.
And prior to that, when did the majority of states make it illegal?
Well, it was always illegal at common law.
So at the time of the founding, it was unlawful.
But I would say by the middle of the 19th century, there were strong codified laws criminalizing abortion.
In all the states or most of the states?
Virtually every single state.
So when Margaret Sanger established her first birth control clinic in 1916, what at that time does the law say about things like birth control and abortion?
I honestly don't know the answer to the question with regard to birth control, but in 1916, abortion was criminalized nearly everywhere in the United States.
And how was the law in the view of morality's role in lawmaking?
How was that shifting during the 1950s and 1960s?
There's a lot of upheaval going on with...
The sexual revolution after that, you know, a lot of kind of talk of free love and women's equality.
So my understanding of the middle of the 20th century and attitudes about abortion is that originally there was a kind of movement towards liberalizing the laws of abortion.
Nothing like, by the way, what the Supreme Court did in Roe v.
Wade.
It wasn't a full-scale repeal of any restriction on abortion and replacement with a regime of abortion on demand.
What the Supreme Court did in Roe v.
Wade was more extreme than anything that was on the books at the time of that decision.
But there's an interesting history of liberalization of some laws in some states, some jurisdictions.
But as I understand the history, again, from drawing upon historians like Daniel Williams, is that there was also a pendulum shift back in the direction of more pro-life sensibilities.
And in fact, my understanding is that the state of New York Liberalized its abortion laws, but then the state legislature decided to reinstate its abortion restrictions.
That was vetoed by the Republican governor.
A Republican governor?
Yeah, later it was, what's his name?
Rockefeller?
Rockefeller.
Yeah.
Who loved abortion, by the way.
To what extent are you comfortable talking about the societal changes and shifts that were happening prior to Roe v.
Wade?
I'm not an expert, of course, but I would say that my view is that I think it's complicated.
I think it's more complicated than the linear story of people realizing that abortion was a good that went along with the sexual revolution.
I think that people were pretty divided in their conscience and their minds about the law of abortion.
While there was an initial flurry of liberalization, I think that tide shifted back once the pro-life movement organized itself in a way that was persuasive to their fellow citizens.
And in 1959, the American Law Institute released a draft proposal that would make abortion legal in cases of abnormality, rape, or incest, or when there was a threat to the woman's life.
Can you talk about that?
Yeah, I would just say that sometimes the American Law Institute proposal in that Period is cited as an example of pro-choice sensibility, a shift in the law.
But if you look at what they proposed, it in fact is quite restrictive.
It does not constitute an open-ended right to abortion, the likes of which we see functionally from Roe v.
Wade in Planned Parenthood v.
Casey.
The proposal was a kind of limited decriminalization of abortion under certain circumstances involving extenuating circumstances, threats to a woman's health or the abnormality in the unborn child that would result in severe disability.
So who was Jane Roe?
Jane Roe was one of the handful of litigants in the Roe v.
Wade case.
Her real name was Norma McCorvey.
She was a young person who had a very difficult life and childhood and lived in poverty and very unstable circumstances.
And in fact, misrepresented to the court that she had been raped and became pregnant as a result of rape.
Later turned out that was not true.
And in fact, she ended up having the baby because the litigation proceeded beyond the term of her pregnancy and made an adoption plan for that child.
And so she was a very famous litigant.
I think she's a person probably who was taken advantage of by the abortion rights movement.
She later became a Christian and a pro-life advocate.
And then more recently, there is some evidence for the proposition that she had mixed feelings about how she'd been treated by some of the pro-life advocates.
And it's possible she was treated poorly by them.
And I think it's a little bit unclear as to what we should make of her later statements about changing her views on abortion.
I think it's hard to get a sense of what she thought ultimately about that question.
She kind of has been all over the map.
And I think she's a tragic figure and a person that deserves our prayers.
So, just definitionally for audiences, if you were to describe Roe v.
Wade in quick lay terms, what was Roe v.
Wade?
Roe v.
Wade was the decision by the Supreme Court in which they invented a right to abortion based on a very strained reading of the Constitution and a false reading of American history.
And what was Planned Parenthood versus Casey?
Planned Parenthood versus Casey is a five to four decision, a bare majority in 1992, in which the court addressed the question of whether or not Roe v. Wade should be overturned.
And a bare majority concluded that it should not be overturned, not just because they believed that there was a constitutional right to abortion as a matter of interpretation, but also, and maybe even more so, because they thought that principles of stare decisis required them to reaffirm Roe because that precedent was because they thought that principles of stare decisis required them to reaffirm Roe Because that precedent was stable and important.
But in reality, they basically overturned Roe v.
Wade, replaced it with an entirely new framework, which still provided abortion on demand, but pursuant to a different normative justification, source of authority, legal standard.
And they essentially reinvented the right to abortion under the false pretense of reaffirming the prior precedent.
So how did Americans...
What was the response from America in general to the Roe decision?
Was it Even divide?
Yeah, I think most people don't pay much attention to the Supreme Court.
They certainly don't attend to Supreme Court abortion decisions.
They didn't in the early days.
In fact, there was a belief among the justices that this was simply a case that was not a revolutionary decision.
In fact, I think it was Justice Powell in his private writing said, well, we just invented a right to abortion and of course the Catholics are upset and some African Americans are upset.
But the Catholics will get over it.
They get over everything.
And so it was – I think it was a kind of apex for lawless irrigation of power by the Supreme Court.
You'd seen the Warren Court era and then Justice Berger was the chief justice of the court in 1973.
the court was kind of in the habit of just doing social policy willy-nilly based on its own armchair philosophizing.
And Roe v. Wade seemed to be a kind of extension of that.
But it fanned into life the pro-life movement in a way that really nothing else could have.
I mean, it gave rise to an organized, orchestrated movement that has only grown in power and influence since 1973.
I mean, anybody who goes to the March for Life can see the fruits of Roe v. Wade.
Even more interestingly, the reaction to Roe v. Wade Wade by progressive pro-choice legal scholars is instructive.
One of the most famous pro-choice legal scholars, a man named John Hart Ely, who was a professor of law at Yale Law School, wrote a law review article right after Roe expressing his shock and disgust at the court's lawlessness and He said it doesn't even pretend to be constitutional law.
There's no sense at all that this is an extension of even the privacy jurisprudence.
It's completely out of left field and is a horrifyingly lawless decision.
Even though Ely himself favored abortion as a policy matter, he thought the court was completely making it up.
Lawrence Tribe expressed similar skepticism about the court's reasoning.
Ruth Bader Ginsburg said that she thought Roe v.
Wade was an overreach, the court trying to do too much at once in a way that the American public was not ready for.
So even progressive and liberal legal scholars who themselves support abortion rights were shocked by the shoddiness of the reasoning of Roe v.
Wade, which explains why the court felt the need to reinvent it in Planned Parenthood v.
Casey.
So is there much overlap in the legal reasons that abortion is allowed currently under US law and the kind of social, emotional arguments that the kind of public-facing movement uses?
I think they're very much connected to one another.
I think that if you were to boil down the normative core of Roe v.
v. Wade and Planned Parenthood versus Casey, is that women have to have access to abortion to realize their freedom to participate equally in the social and economic life of the country.
That's it.
Women can't be free without abortion.
That's the core of the argument.
And I think that's the same argument that's made by Planned Parenthood.
It's the same argument that's made by NARAL.
It's the arguments we heard in the oral arguments in the Dobbs case.
They view this as an existential threat to women's freedom and equality.
And they believe that if women lose the right to abortion, they will be relegated to a subordinate position in our nation's life.
I think that's demonstrably false.
I think for some people it's probably a rhetorical scare tactic, but I think some people really do believe it.
I think there are women, especially women of a certain generation, that really believe that abortion is the single most important linchpin of women's freedom and equality and flourishing.
And that's what drives Justice Blackmun's opinion, saying to restrict, to impose this burden on women ruins their lives.
And Planned Parenthood v.
Casey basically said the same thing.
That's not a constitutional argument.
There's nothing in the Constitution that says that you have the freedom – you have to have the freedom to do something that will empower you to express yourself sexually and also be free of the consequences of that action.
And to be able to – and nature – I mean, this is a quaint expression and probably people would disagree with it, but by virtue of the natural endowments of our species, women carry The pregnancy to term.
Men do not.
And therein lies the inequality, the natural inequality, that is the moral grounding for a right to abortion.
It's unfair that women have this burden that men don't have, and therefore they have to use the lethal violence of abortion to even the playing field.
Has the court ever explicitly said that...
I mean, because, you know, I think the current statistic is 95% of biologists...
I explicitly agree that it's a human being from the moment of conception.
Right.
And that's even academic.
Because at the moment in which an abortion is going to be performed, there's simply no dispute.
There's some people that make arguments that I think are unpersuasive about the one-celled zygote or the blastocyst or whatever.
We're not talking about the debates that happen in embryo research.
Which, by the way, it's equally clear that that's a human being too.
But a fetus is a completely formed, stable, individuated organism of the human species.
No one disputes that.
It is not a clump of cells.
That's a lie.
The question is not when the life of the organism begins as a biological matter.
That is a matter of consensus, in terms of the pregnancy, at least, in terms of a fetus in utero who's the subject of an abortion.
The dispute is over the moral status and the legal status of the unborn child.
And that incidentally is not, again, all of these are policy and political arguments that we will have, God willing, when Roe and Casey are overturned.
There's nothing in the Constitution that I read that tells us that there's a right to abortion because of the balancing of burdens and benefits that arise and have to be weighed in this human context.
Has the court ever gone so far as to explicitly say, look, in a weighing out of a human being's right to live versus another human being's convenience, that convenience sometimes should outweigh another human being's right to live?
The court has said explicitly that the interests of this – because the unborn child is not a party in this.
In a constitutional litigation, what we're debating over is state action.
We're debating the state's authority under the Constitution to regulate certain kinds of behaviors.
And so on the one side of the ledger of the state's interests in protecting life, which is a – from time immemorial, governments have recognized that as a compelling state interest, to protect the life of the people within the borders from private violence of other people.
You could argue that that's the social contract.
That's Hobbes and Locke and why we come together to form communities and their sort of conjectural theory of how – Which, of course, is not real history, but it's a kind of metaphor for why people come together in community to protect themselves from private violence.
That's Hobbes, right?
And everybody agrees that there's a state interest in protecting one person from being violently killed by another person.
That's basic stuff from time immemorial.
What the court has said is the burdens on women, on their freedom, on their future is so significant That it categorically outweighs the state's interest in the life of the unborn child.
And the only way that could be true is if the implicit premise of the court is that that unborn child is not a person.
And it becomes even clearer when the court says the state may not impose one definition of unborn personhood on the woman such that her freedoms are abridged.
Okay?
Think about that for a minute.
If there were a class of human beings that the state said or that the court said Indiana is not allowed to declare to be a person and everyone can decide for themselves on whether or not that's a person, then the Supreme Court has declared that to be a non-person.
Because the hallmark of personhood is that other people don't get to set your moral value at zero and take your life and your freedom.
So is the Supreme Court – is the court in – is U.S. law in general – is it defining the life of the child in an accurate way based on modern medical consensus?
Yeah.
So I don't think medical science tells us what the moral status of the unborn child is.
It's morally neutral.
Modern science is morally neutral.
What it tells us is that if you want to define the species of Homo sapiens and you want to know when the life of the individual organism begins, it begins at conception.
And it is inarguable that the child in utero who's threatened by abortion is a living member of the human species.
The question, the dispute between pro-lifers and people on the abortion right side of the equation is, does everyone who's a human being deserve the basic protection of the law, or only some people?
That's, in a nutshell, the difference between the pro-life position and the pro-choice position.
The pro-choice position says, and Planned Parenthood versus Casey and Roe v.
Wade say that So individuals, women, pregnant women can decide for themselves what the moral standing of the unborn child is.
Is it a person?
Is it not a person?
If they choose it's a person, then they can act like it's a person.
If they choose it's not a person, then they can take legal violence against it in a way that you wouldn't be permitted to against a person.
The personhood of the unborn child as a matter of constitutional law in this country, as interpreted by the Supreme Court, is that it is a relative value.
There is no...
And they are ignoring the proposition that all human beings are created equal, which is a normative proposition that I think includes every living member of the human family born and unborn.
They're rejecting a deep normative good of human equality that I think is embedded in our nation's best traditions.
And so that gets to one of the follow-up questions, which is, does the practice of abortion violate most of the major talking points of inclusion, equality, and personhood that modern society claims to allow?
I would go even further than that.
I would say that liberals and progressives frequently and correctly invoke the norms of equality and and inclusion and anti-discrimination and welcoming the stranger and caring for the other and collective action in service of the weakest among us.
Those are fundamental tenets of American liberalism and progressivism as articulated by its proponents.
Because somehow, when the topic shifts to abortion, all of these liberals and progressives become radical libertarians.
And they all say it's an individual's right to choose how to configure their life plan.
And if their own child threatens that, their own child in utero, then there is a near absolute right to take that child's life.
Nothing could be more discriminatory, nothing could be more antithetical to inclusion, or welcoming, or hospitality, or solidarity, or any good of unconditional love and support and protection than the drive to abortion.
And, you know, as a corollary to that, you know, what you just said is nothing could be more discriminatory.
You know, one of the questions I have is, you know, are there other reversals of kind of common discrimination in our country's history?
And I'm thinking specifically of the civil rights, you know, movement.
You know, what are the closest kind of correlations between kind of the legal acceptance of abortion and other forms of discrimination in law?
I think Brown v.
Board of Education is a great example of the court exercising extraordinary courage in the face of criticism that to declare segregation, which by the way had been declared by the Supreme Court in Plessy v.
Ferguson many years before, way more than the years that Roe v.
Wade has been on the books.
Plessy versus Ferguson said, separate but equal, segregation is okay.
In Brown versus Board of Education, they didn't hesitate to overturn that prior precedent and destabilize entire economies and ways of life that had depended upon segregation for schooling.
And that case was about schooling.
They completely disrupted the school systems across the country that had come to rely on Plessy versus Ferguson.
But they did it because it was the right thing to do.
They did it because segregation is pernicious.
It's invidious and hateful discrimination in the same way that discriminating against a person by virtue of how small or dependent or whether they're born or unborn is as well.
I think that the civil rights movement is a useful example for us to look to and for the justices to draw courage from.
I mean, you think about Loving v.
Virginia, the idea that laws that ban people of different races from forming families and marrying each other was a rank form of hateful, toxic discrimination.
And the court had the courage to declare that to be unconstitutional, even though it was a longstanding practice on which people had come to rely.
From a legal standpoint, has the government and its view on the purpose of sex and sexual activity, has its view on the purpose of that changed from a legal standpoint over the last two centuries?
Well, I would say that in the case Griswold v.
Connecticut, 1965, the court declared that laws, which by the way were not being enforced, that forbade The use of contraception by married couples was contrary to the protected good of privacy that was implicit in the Constitution.
Interestingly, I think some of the reasoning behind Griswold was not a kind of sexual liberationism, but actually a defense of the sanctity of marriage and the sanctity of the marital home and the marital bedroom.
And one can see immediately how the good of privacy and people who are pro-life could see how the good of protecting the integrity of the marital home, the marital bedroom, the marital intimate relations is an important good for us to defend.
And if there is a kind of longstanding norm that we should stand up for, that's one of them.
But then it pivots from the good of marriage and the spouse or the privacy of the spouse or the intimacy of the spouses to a kind of individual right when they shift and they say, OK, we're going to say that in a case called Eisenstadt v.
Baird, that single people have the same right to contraceptive.
It became a kind of right to make reproductive choices in a way that were more reflective of the norms of the sexual revolution.
So, you know, I mean, the Supreme Court is supposed to interpret the Constitution.
They are not supposed to put their finger in the wind and see which way the normative winds are blowing in culture to adapt their reading of the Constitution to modern culture.
That's the role of the political branches.
It's not the role of the Supreme Court, which is why even for a person who is pro-choice like Ruth Bader Ginsburg or Lawrence Tribe or John Hart Ely, There's a real strong line of criticism that one can mount against Roe and Casey.
In fact, you could imagine someone saying, and I'm sure there are people who would say, they are pro-choice as a matter of policy, but obviously the Constitution doesn't protect a right to abortion and it should be a matter for the political branches.
Now, you would hope that some of the justices on the court who favor abortion rights as a policy matter would have the integrity to take that point of view.
And truthfully, Dobbs should be a 9-0 decision.
But unfortunately, that's not where we are, and we have justices who will succumb to the temptation of reading into the Constitution their own policy preferences.
I guess the last question I would have is, for a layperson who doesn't understand constitutional law, the history of constitutional arguments and cases and the precedents that they've set, what is the one thing that a layperson should understand?
Lay people should understand that there is no right to abortion in the text of the Constitution.
There's no right to abortion in the constitutional tradition of this country.
There's no right to abortion in our legal history or our legal practices.
Quite the opposite.
Abortion was a crime at common law.
Abortion was a codified, very serious crime in the 19th century.
It was only in 1973 when seven justices decided that the right to abortion was so important as a policy matter and as a philosophical matter that they grafted it onto our Constitution and fanned into life the most toxic, zero-sum political dispute, arguably, in modern history.
They took to themselves the authority to settle the question of abortion, about which people strongly disagree, and prevented the political branches from government from even deliberating in a way to find a solution that the losers of that deliberation could live with.
Imagine the court taking the most hot-button issue possible, declaring an absolute victory for one side when the country split down the middle, and saying, go home, we've settled this question by virtue of our interpreting a constitution that says nothing about the issue at all.
That's what Roe v.
Wade is.
That's what Planned Parenthood v.
Casey is.
It's a stain on our law.
It's a stain on our nation.
And truthfully, we shouldn't rest until it's overturned.
The abortion industry uses women for their own profit.
These lies are pervasive They're not difficult to refute, but it can be difficult to penetrate that culture of lies, to get the truth out there.
We have to do it.
We have to do it because it's right.
We have to do it for the victims of abortion.
We have to do it for the women who are taken in by this industry, who are used for dollars, even to their own detriment.
If you enjoyed this conversation with Carter Sneed, you'll want to check out our Daily Wire original documentary, Choosing Death, The Legacy of Roe.
In it, we take a wrecking ball to the four fallacies keeping the abortion industry alive.
To watch it right now, go to dailywireplus.com.
Today, if you join, you will see not only this full movie, Choosing Death, The Legacy of Roe, but you will have access to The Daily Wire's entire catalog of content, which we can only produce and distribute because of you, with your support. - Come on. which we can only produce and distribute because of you, I'm Michael Knowles.
This is the Choosing Life Podcast.
We'll see you next time.
The Choosing Life Podcast is a Daily Wire production produced in association with Outer Limits.
Our technical and support team includes Ian Reed, Jesse Eastman, Ryan Moore, Mariah Cormier, and Jim Wirt.
Copyright Daily Wire 2022.
▲
Export Selection