Episode Transcript
Speaker 0 00:00:00 Hi everyone. And welcome to a special webinar discussion by the Atlas society. My name is Lawrence Olivo. I'm the associate editor here at the Atlas society. It is the leading nonprofit organization, introducing young people to the ideas of on Rand in creative ways, such through animated videos and graphic novels. Before I begin to introduce our guest, I want to remind those of you watching on zoom, LinkedIn, YouTube, Facebook, whatever platform it is, feel free to post your questions in the comment section. We'll be pulling those together to answer a few of them closer to the end of this webinar. Now, today I am joined by two of our faculty members, senior scholar, Dr. Richard Salzman, and our senior fellow Robert Tru Zinsky who will be discussing today. The recently leaked Supreme court opinion, its consequences, and a overall general understanding of abortion and Roe V. Wade. And with that, I'll hand it over to Rob first.
Speaker 1 00:01:05 Thanks. Thanks you. The reason we're having this discussion right now is that, uh, you know, the ruling in, uh, these Dobbs versus, uh, Jackson women's health organization, this ruling was not supposed to come out for months, uh, but somebody leaked it. Uh, so I wanna talk, I wanna sort of address three issues here. Uh, first I wanna talk just briefly about the fact of the leak, you know, how that the fact that this thing was leaked there, there some controversy over that, then I wanna talk about abortion as a right, and then I want to talk, I'm gonna spend most of my time talking about the interesting implications of the, the, the leaked draft of, of this decision that would overturn Roe V Wade and, and, uh, remove federal protections for abortion rights. Uh, so I wanna talk, so just a moment about the leak itself.
Speaker 1 00:01:48 I, I think it is generally a bad thing because there are certain kinds of there's long history on this, that there are certain kinds of deliberations that are supposed to be sort of shielded from the pressures of ordinary day to day politics and not made into a political football. So, for example, when, you know, George Washington convened the, uh, was, was head the president of the constitutional convention that drafted the constitution. One of the first things he said to everybody was, you know, basically don't talk about this, uh, don't leak this out to the press because then once you do that, the press is gonna have a field day and they're gonna get all excited about how, oh, you're not doing this, or you're doing that. And it's going to influence the deliberation. So basically, you know, when, when the mass public, when, if Twitter had existed, that he said, you would've said, once Twitter gets a hold of this and it becomes a hysteria, then it removes the ability, or it reduces the ability for people to make, you know, re reasonable, responsible deliberations on this.
Speaker 1 00:02:43 I think that same thing applies and, and has traditionally applied to Supreme court deliberations that they have the, you know, the public, uh, oral hearings. And then they go back and they deliberate and they write their, uh, they write their opinions and that's all done, you know, behind closed doors, without, uh, Twitter weighing and without the newspapers weighing. And without that public pressure. And I think that's a good thing. Now, I'm gonna say that. So I think it's, it's a good thing that that's normally not subject to the normal pressures of the press. And I think in this case, one of the implications for example, is that that's exactly what people wanted from this. The whoever leaked, we don't know who leaked it or why, but one of the reasonable speculations is that the reason they did it was precisely to create that kind of, um, create that kind of public pressure.
Speaker 1 00:03:29 You know, the, the, the usual speculation is it was one of the, uh, liberals or, or people on the left who works somewhere in the, in the Supreme court system who leaked it out in the hope that this would create public pressure to get one of the conservative justices to recant that, oh, no, this is gonna be such a firestorm. I shouldn't sign onto this opinion. And they could somehow prevent it. I, I think they're gonna be very disappointed in that expectation. Uh, but generally speaking, that's not how these deliberations should be done. However, I'm also going to evoke here, uh, a Barones law. And this is, uh, uh, Michael Barone, a, a famous commentator on politics wrote a, a columns about 20 years ago or so. And it's, it's kind of a timeless one where he said, all process arguments are insincere. You know, that is that people tend to get upset about the process by which something is done the extent to which they upset, upset about the process generally is correlated with whether they like the result or not.
Speaker 1 00:04:25 So, you know, how, how upset you are that this got leaked is probably going to depend, depend a lot on what side of the issue you're on. And I think the substantive issue of, you know, our is the right to abortion protected. What is the legal reasoning behind that? Those are way more important than the issue of the leak. So I wanna sort of make a brief comment about the leak and let's on to those substance issues. Now there's two things I wanna cover. And then I'll, I'll, we'll, we'll go back and forth with, with Richard. I don't think we're gonna be in deep disagreement on this, uh, for a change, but, um, but you know, we, I think we made of some different things to add. I wanna talk a little bit about the right to the right to abortion and the usual objectives argument on this is that, uh, to refer to the, the difference between the potential and the actual, you know, the a, a fetus, especially in the early stages of pres of, of the pregnancy is very clear.
Speaker 1 00:05:16 A fetus is not an individual human being. It is a potential human being. It is something that will grow into a human being over a process of nine months. And so therefore it does not have the same rights. It, uh, it doesn't have the rights of an individual separate, uh, in a human being. It doesn't have that right, that it can claim against the right of, uh, of the mother or, or of the, of the woman in, in whose bodies it's growing. Uh, so the idea that, you know, uh, the fetus is so dependent on the woman of, on the mother to, to provide the nutrients, to provide all the material that's going to help it to grow into a child, uh, that it cannot make that claim of a superior right over her, right to her life and her right over making her own her body <inaudible> and historically, and, and the history of this is gonna be important as we get to the legal arguments.
Speaker 1 00:06:16 Historically, I find it interesting that that, uh, often that has been even the theological view of it. Uh, there was, I think there's an old Hebrew rule that it's, uh, uh, a child does not have a soul until 40 days afterwards, uh, after conception or in a lot of the ancient older, legal precedents that, that abortion is banned only after what's called the quickening. Now, the quickening is basically the point at which the mother can feel the, the fetus moving inside of her. And that happens generally in about 15 or 20 weeks. So the I modern idea that life begins at conception and that rights begin at conception is kind of actually, you know, despite being a theological view put forward by the Catholic church is actually something of a new innovation, uh, based, you know, uh, uh, that RA not an, a departure from older views.
Speaker 1 00:07:08 And I think the older views are more sensible. The idea that at the very early stages, this is not yet an individual human being whose rights can be protected. Now, the difficulty as I see it, uh, with, uh, with abortion, the reason why this becomes an emotional issue, the reason why people find it a difficult issue though, is that if there is a continuum there that, you know, over nine months, you're going to go from a, you know, a couple of cells, you know, I fertilized a single fertilized cell to, um, a fully formed, uh, infant, fully formed fetus. That's capable of, of, you know, that's about to be born, it's capable of living outside the womb. So you don't have, you know, if, if, if, if the, if the fetus at the very beginning is a pure potentiality, it's something that might grow in would be able to grow into a human being.
Speaker 1 00:07:59 By the time you get to the end, it is almost a hundred percent there. It's like 99.9% there, you know, at, at, at the very, very end of that nine months. So you have this continuum, and I think that's why people find it confusing, because, you know, at the, in the third trimester where you have is essentially a fully formed, uh, a fully formed fetus that is just growing larger and stronger, but is capable of surviving. Uh, and I think that in that case, I think, you know, my view is that it would be imoral to terminate a fetus at that stage. Um, uh, uh, except for some really, you know, really important, really emergency type of reason. Like, you know, uh, there have been cases of this, like, uh, a woman who was diagnosed with cancer, uh, and, you know, the treatment was, well, we could treat your cancer, uh, but that, but the treatment, you know, the chemotherapy or the radiation would, would kill the, the fetus, or we can bring the fetus to term, but the time we do that, you know, the cancer will progress too long and you're not going to make it.
Speaker 1 00:08:58 And so there are these very rare cases where those, you know, the decisions that have to be made, but again, those are very rare. Um, but I, I think, you know, that would be moral in those situations. I think it would be imoral to, to terminate a, a, a pregnancy in the last trimester, but where I, I see the problem with let getting government DeVol, is that the pro what exactly what we see right now, which is that there's a, a, 1,000,001 real religious sell that's going around there, who if given the power, you know, significant of a grandstanding attorney general in, in Louisiana or Mississippi, or someplace like that, if given the power to basically second guess and make decisions, uh, uh, ratify or, or, or prosecute, I individual people's decisions about terminations of pregnancy, they would do so, you know, for their own grant sending purposes or out of their own, you know, religious convictions overriding the decisions.
Speaker 1 00:09:53 And in these very difficult cases where there's a, you know, a danger to the life of the mother, and I think you would end up having, uh, that power be used arbitrarily. And that's why even in the third trimester, I would keep government out of it. I think it should be a matter of medical ethics and personal ethics and not of government regulation. Um, now we talk about what iron Rand's view on this was, which is, you know, she made that argument, but, but pencil versus the actual, and she also acknowledged that there could be questions or issues in the third trimester, but I also wanna make the CA make the point that most of the abortion cases we're talking about happen in the first trimester they happen early on, they happen before 25 weeks, the, the most of them do not happen in the late stages.
Speaker 1 00:10:33 So what we're really talking about is that early stage, the first trimester, when you have a, you know, a, a, a, something that's developing into a human being, but clearly is not fully formed and fully developed yet, and is still dependent on the mother. And that's why I think her rights have to, um, have to supers, have to be the, the, the primary that we start with, uh, her rights to control of her own body. Now, I want to go on and transition briefly to the legal argument, which is the part I find most interesting because here's the thing, the draft of dos that we have, doesn't actually focus on so much on that issue of the metaphysical status of an, of, of a, of a fetus and the rights of the mother. It focuses on the, a much broader issue, one with a lot of bigger implications.
Speaker 1 00:11:22 It focuses on the issue of how do we determine what rights people have and what rights can be protected, uh, by the constitution. And that's a, a much, much broader and more sweeping issue. It's not just about this particular case. They don't make the case that well, you know, uh, they don't make the case on the basis of, well, the fetus is an individual with rights. They make a broader case about how do you determine whether people have rights, what rights they have and, and what rights are protected. Now, the crucial issue here is the issue of UN enumerated rights. Uh, so the idea is that in, in, there's a, an idea, a longstanding idea in, in, uh, in, in jurisprudence called substantive due process. And this is the idea that, uh, the government can't do anything it likes to, it has to follow due process of law.
Speaker 1 00:12:12 And due process of law has a procedural element, which is, you know, they have to file the right paperwork. They have to go through the right branch of government. They have to, you know, dot all the I and cross all the Ts. They have to go through the right procedures, but there's also something called substantive due process. And substantive due process says that sometimes the substance of what the government's trying to do is itself so invalid that there is no due process of law to do that thing. And so a good clear example would be the first amendment says, Congress shall make no law, a bridging freedom of the press, right? So if you then have the government trying to enforce a control on the freedom of the press and trying to enforce some censorship, you would say, well, the substance of what you're trying to do imposing censorship is itself illegal.
Speaker 1 00:12:58 Cuz Congress can make no law. There can be no law under the constitution that allows you to do this. So therefore the substance of what you're trying to do means that it cannot be done with due process of law. Therefore, you know, the constitution prevents you from doing it. Now that's an easy case to make when you have something like the first, uh, like freedom of speech, because it's explicitly guaranteed in the first amendment, uh, the tougher case with due substantive due process arguments is the what about something that's not explicitly guaranteed a right? That's not explicitly stated in the constitution, but which is still so fundamental to our system of government, that it needs to be protected. And that's where the UN enumerated rights come in. Now, the, the, uh, the ninth amendment, very specifically states this, they say that, uh, the, the enumeration in this constitution of certain rights does not mean to deny or disparage other rights that are retained by the people.
Speaker 1 00:13:55 And that's a very curious document. The, the, the very curious, uh, piece of writing in, in the ninth amendment, cuz basically it's saying it, it explicitly protects rights that it does not explicitly name. So how do you, how do you do that? How do you say, well, there's an explicit statement that we ha we're protecting other rights, but we're not gonna name what those rights are. Well, the way I view it is that it's an invitation to then refer back to political philosophy and they knew what, you know, the founders knew what political philosophy they wanted us to refer to. They wanted us to go back to the natural rights philosophy of John Locke and Aldon Sydney, that, which was pretty universally accepted among the founding fathers. Now, the problem, as I see it is that since then the natural rights philosophy, the philosophy of the individual rights that animated the constitution and the declaration of independence was basically abandoned by the early 20th century.
Speaker 1 00:14:44 It was abandoned by both the left. And unfortunately by, by at least by a large segment of the right. So what you have instead is, is when you, when people are asked, when jus are asked now to say, well, they look at the ninth amendment, there are these UN enumerated rights. When they're asked to figure out where do rights come from? There are two basic answers. The answer from the left is well, rights come from society. And so therefore if society thinks that you should ever write to something you do, and that's how you get this famous formulation of the living constitution theory, which is that, um, uh, rulings are made on the basis of the evolving standards of decency in a progressing society. Something, I, I think I got a little word off there, but, uh, uh, you know, the idea is that as society progresses as the social consensus changes as to what rights we have, therefore society creates new rights for us now in practice that tended to mean, you know, whoever mixes in the social Sur, same social circums circles as the, as the justice, uh, he, he pulls them, you know, the people I went to the last dinner party with, what do they think are the evolving standards of decency?
Speaker 1 00:15:52 And he goes with that. It, it's not, you know, that they conduct public opinion polls and there's an arbitrariness to that. And so the rights answer was to say, well, we have to go back to the original meaning of the constitution. Well, what does that mean? How do you gauge the original meaning of the constitution? Well, the thing that I find interesting about this DB's decision that was leaked and we have confirmation, it was a real thing that was leaked. It wasn't, it's not a fake, it's not, uh, you know, the, the Supreme, the, uh, chief justice confirmed, yes, this is an actual draft that was being circulated. And what's interesting about it is when, in, in it, for the standard of how you determine what rights we have, the standard it gives is that they be deeply rooted in our traditions and history. Now that's an interesting thing because the founding fathers, I think intended that they be rooted in our, our concept of rights, our understanding of rights be rooted in a natural rights philosophy.
Speaker 1 00:16:46 And that's different from deeply rooted in our traditions and history. And you can see the difference because, you know, when the, uh, uh, when the founding, when, when the founding father signed the declaration of independence, the Stu the, they went out and all the state governments now declaring themselves independent from the crown. They changed their constitutions and they passed all sorts of laws. And many of those laws overturned traditions. Uh, they overturned things that had lots of historical, uh, uh, support for them because they were, uh, contradictory to their understanding of individual rights. So for example, one of the first bans on slavery in the English speaking world, I think it may be the first ban on slavery in the English speaking world was passed in Vermont in 1777, you know, the year after the declaration of independence. Uh, but you know, slavery was something, they had lots of grounding, deeply rooted in history and tradition going back thousands of years.
Speaker 1 00:17:43 And they outlawed it, uh, because it was inconsistent with the individual rights philosophy. And, uh, another example is Georgia in 1777 outlawed, uh, premature. And NTEL now these are rules about inheritance of property, where, which were basically aristocratic rules, the idea that you had to only the, basically only the oldest son could inherit a property. And it was a, this aristocratic approach where you're trying to keep all the property under the, uh, uh, under the oldest sons that you have, you don't de dilute your property, uh, to among all the different errors who would claim it. Uh, and this is something that they banned in, in Georgia as a way of, you know, getting rid of that element of the aristocratic system. And there were a number of other things they did like establish into religion. Another, you know, having an established church at official church was also something they had deeply rooted in our history and traditions that the founding fathers got rid of because of their understanding of free speech and freedom of religion.
Speaker 1 00:18:43 So I think that this ruling and creating that standard of traditionalism as the basis for which we decide what rights you have, and don't have this ruling, I think kind of overturns the basic idea of the founding, which is that our rights are determined by, you know, appeals to natural rights appeals, to philosophical arguments about the nature of man and the need and his need for rights. Uh, and it said what it does. And I, I think this is really interesting to me, cause for, for many decades, there's been a prevailing dominant, um, uh, conservative judicial philosophy of originalism and originalism. The promise of it for someone, you know, from our perspective, somebody who is an advocate of individual rights is that originalism is great. If it refers us back to the original individual rights philosophy behind the constitution and the declaration of independence, but that's what not what they're doing here.
Speaker 1 00:19:40 They're almost doing kind of a bait and switch. They're saying, we're gonna go back to the original meeting of the constitution, but as judged as a set of traditions that are based in, you know, long, deeply rooted in long English traditions and this, you know, this, this ruling does this where it goes back to 700 years of, of, uh, of English, common law and back to 17th century, jus uh, sir, Edward Koch and what he wrote about abortion. And it's very much based on this idea that, you know, if it's not there in the traditions prior, if it's not, if, if a right is not recognized in deeply rooted traditions, then it doesn't exist and there's no argument you can make that it exists. And I wanna end with this observation of why would that be important? Why would that be a problem? Well, part of the problem is that the, the, the ninth amendment, and it's just declaration of enumerated rights, those rights are enumerated for a reason.
Speaker 1 00:20:35 You know, the reason they left it. So open ended if, if an issue was known and traditional and important at the time of the founding, they probably would've enumerated it, right? They're leave, they're deliberately leaving it open that there may be other things that have not been contested yet that have not been recognized yet that are consistent with the philosophy of individual rights that are yet to be litigated, essentially, that are yet, yet to be argued out. They wanted to leave that open ended. And Roe V Wade, the, the, the ruling that, that legalized abortion is an example of that. In fact, we tend to think of it standing on its own, but it's actually part of a constellation of rulings that happened in the middle of the 20th century, mid to late 20th century that had to do with basically all the aspects of your, your personal life.
Speaker 1 00:21:20 Your, uh, had to do with sex, had to do with marriage, had to do with medical procedures. So there was, uh, uh, Griswold versus Connecticut, which basically banned, uh, uh, struck down bands on contraception. There was, um, uh, uh, loving versus Virginia, my favorite title for a, uh, a Supreme court ruling ever loving versus Virginia struck down bounds on interracial marriage. There were number ones that had to do with, uh, your right to consent to, uh, to medical, uh, procedures, you know, no involuntary medical procedures and, uh, various other things rulings that were similar to that this whole constellation and Roe V. Wade was at the center of that. So I think that striking down Roe V, Wade and furthermore doing it in this way, that basically says, if something is not traditional, then we don't recognize it as a right, really opens up the floodgates for all sorts of potential, other controls, uh, on our personal lives and on our sex lives and on our, uh, our, our personal medical decisions, because you have eliminated the basis for claiming any such rights. So I think I've probably gone too long, but I wanted to sort of lay out that as my perspective on, on this, on this ruling and, and what's wrong with it.
Speaker 2 00:22:36 Thanks, Rob. I, I would like to, what I'll do first is dive into what I consider that the issue of abortion, the physiology of it, and the right to it, and then kind of use that as a standard for gauging what the court has done here, but also what it's done historically. I think it's helpful to, uh, go to the extremes of each physician, because it really goes to the heart of the matter. So, so let's go to the anti-abortionists first. They say they are pro-life, but they really are not for the life of the would be mother. And I always say would be mother because it's not a mother until there's birth. Um, and so they're talking about the life of what prenatal, uh, inter in uterine species like going sequentially, ZY, go embryo fetus. These are all in the womb, and they're concerned with that life.
Speaker 2 00:23:30 And when they speak of life beginning at conception, they're not really speaking of human life. So Rob and I agree on this idea that the human being is post-birth, there's not a fully formed human being until birth. And that is what's Eva here. Now, if that side is correct, then it's murder. It's murder for human being. Now, if you look up murder, murder is the killing of a human being by a human being. Now, the would be mother is clearly a human being, but by the physiology of it, she's not killing a human being she's she's con she's killing a pre-human form. So, so there is life there. It's not as if it's not a living organism as I go an embryo, a Fe, they are living organisms. There's no doubt about that. So there's an, a huge equivocation on the idea of life. Beginning at conception, potential human life begins at conception, but we're talking here about, if we're talking about murder, we have to talk about two human beings.
Speaker 2 00:24:29 Now, just to take this a little further, which almost no one ever does, if they're right, that it's murder, then the would be mother and the doctor must go to jail. They might even have to face capital punishment, cuz they're deliberately murdering a human being. According to this view. Now I I've not heard anyone, but if they were really courageous about it, they would say this. And I don't think I've heard anyone on that side. Say all women, a borders, uh, should go to jail or face murder, uh, murder face capital punishment. Well, I, I do recall when Trump was asked during the last, uh, campaign, he said the doctor should, when, when he flipped, I think he used to be a pro-abortion that he was anti to get the vote, but he said, another woman shouldn't be punished. Well, that's just, that's inconsistent. If it's truly murder, then both parties.
Speaker 2 00:25:18 I would actually say the woman is more, uh, culpable because the doctor would never see her unless she approached him and came to him with this request. Now go to the, a complete other side, the side that I'm actually on, which is if you really con, if you really take the view that there is no human until birth, that human beings begin at birth, you have to be able to defend. And this is this, this is cringeworthy for most, most people abortion right up until birth abortion, right up until the moment of the crowning, the cresting, the dilating, all that. I mean it's to most people, they can't stomach it. And I think even people on the right who call not on the right on that side, who say that they're pro-choice well, that's a non fundamental position as well, too. Right? Cause you don't of course have the choice to murder people.
Speaker 2 00:26:06 And if it was truly murder, no one would say I have a choice to, so what are they saying that the mother really has a choice to control her own body. And that's my position. I think that's the Liberty position would be bodily autonomy in both ways, by the way, the government has no right to make you put stuff in your body or prevent you from taking stuff outta your body. I think I would include the mind as well. The things you take in and read and learn, and then the things you speak your mind shouldn't control that either. So there's a consistency there. Now, the reason I go to these extremes is I think it makes people really test their logic and test their views. And, and if, if you listen over the next couple days, you'll see it over and over again. You'll hear phrases like the child in the womb, the baby in the womb, these are just contradictions and terms, the, the term baby infant and child in that sequence by the way is exactly what happens after birth.
Speaker 2 00:27:01 So no more. Can you say baby in the womb than say, you know, fetus riding a bike down the street, it's just ridiculous. It's a mixing of terms and no side should really be able to get away with it. I actually heard the president the other day speak of a boarding, a child in the womb. So even the president, I mean, well, he doesn't mostly know what he's talking about, but lots of people talk this way. Um, I wanna say something, uh, also about, um, that now that it's called it, the legal relationship to what I just said. Um, one of the most interesting things I think in Alitos decision in Dobbs is, is, and Rob alluded to this is he basically says it's not a right in the constitution and I'll get to that in a moment. But then he also has a lot on the history of abortion, not only in Britain, but in the United States as well.
Speaker 2 00:27:55 And it's not well known, but you can get histories of abortion in America that from roughly 1800 to 1900, there were very few restrictions on abortion. So it was seen as an implicit Liberty and especially in the, up until the civil war. And, um, so I, I believe that all the analysis that Alito gives about, I, I think it really overstates the idea that this in law, at the state level and elsewhere and in court decisions was always considered a crime. That's not true. I think it's very interesting that if we trace the liberties, we had economic, political, and otherwise in the 18 hundreds and how they became eroded starting with antitrust in 1890 and afterwards. So also was women's freedom to choose eroded. So there's no, um, inconsistency there, the same kind of trend in the progressive era that had government increasingly restricting people's liberties was also happening to women in this particular field.
Speaker 2 00:28:56 And so by the time Roe V Wade comes about, it really comes about because there'd been about 50, 60 years of the states', uh, increasingly restricting a women's right to control her reproductive function. So that, so that's what was happening. People have this idea that abortion was, uh, despised, criminalized and banned, you know, from the time the constitution was signed, that's not true. Uh, but I also agree with Rob that you can't just resort to the history because of course there's been a history of, you know, anti interracial marriage. There's been a history of slavery. There's been a history of a whole bunch of things which are unjust. So just because there's been this history doesn't mean it should be endorsed. And so Alito also, and the conservatives are really grappling with half the time they want to cite precedence and half the time they don't.
Speaker 2 00:29:49 But if you say precedents in this case, and I think I recall Alito actually saying this in his, uh, in hearings, when he was being nominated, all of them say, well, Roe is, uh, decided Roe is settled, uh, you know, settled. I was settled law and they all, uh, reversed on that. Of course, cuz they probably would not have been nominated. Um, now a couple things about, uh, interesting, I'm seeing Carlson and others on the right, saying what's wrong with democracy. The idea that Alitos decision basically says, we're going to turn this back to the states and let the states vote on it. Well, think of this, if it's truly a right rights, aren't subject to vote. That's the whole point of the bill of rights. The whole point of the bill of rights is if you have the right to free speech, it isn't conditioned by.
Speaker 2 00:30:36 There's no proviso saying, you know, unless a majority opinion doesn't allow you to speak. So again, you get back to first principles, if it's a right, it shouldn't be open to vote. And in that regard I have no problem actually with the court striking down these things, I don't, I didn't actually have much of a objection to Roe. And I actually think Roe V Wade was wobbly on the right, because that was the decision in 1973 that created the trimester analysis. Now the trimester analysis does have some basis in biology, but they were trying to use it to dice up the rights. And it was almost as if they said there is no unconditional right to abort. It kind of fades away as you go into the trimesters. And so they set it up as well. You have a definitive right in the first semester and then kind of in the third, second, definitely not in the third.
Speaker 2 00:31:31 And so they kind of deferred to states and that's why we're back to where we are today. Roe actually allowed states to restrict abortion in the third trimester. Now, Casey, which hasn't come up yet. Casey was decided in 1992, planned parenthood versus Casey and planned parenthood versus Casey with the, which the court up held in a more mixed way, actually got rid of the trimester idea and came up with the viability idea. So VI now think of this. This is even Mercier. Viability is defined as the capacity for the fetus to survive outside the womb. Now this too is a hypothetical because if the would be mother doesn't want the fetus outside the womb, it's a, it is a moot point, right? So you have outsiders like guessing and judging whether some woman's fetus could survive outside the room. And that decides whether she has the right or not.
Speaker 2 00:32:23 To me, that is completely unprincipled and ridiculous. But notice that conservatives are using this today in the following way, as the science gets better, as detection methods get better as incubation methods better, as it becomes easier to bring a, a pre if you will out into the world and have it survive, they're arguing for more and more restrictions on abortion, right? Suppose, uh, 10, 15 years from now, um, somehow science and natal care could, you know, bring a, uh, embryo to survive in the world. You know, after 10 weeks, see the conservatives would say good, then it's murder at 10 weeks. Uh, so it's a shame here because here's a case where science is being used against itself. Um, in terms of designating, what, what, what the being is to begin with a couple of other things, then I'll, I'll stop. I, I think, um, the, I can think of two analogies that might help, um, where cases, where if you get gray and wobbly on the distinction, you mess things up completely.
Speaker 2 00:33:34 And I think that's what's happened here. So one would be economic power versus political power. It's widely been recognized that if you don't distinguish between coercive action and voluntary action, if you start calling economic activity, coercive and government coercion voluntary, you mess up the whole thing and you ruin your economic liberties. Um, that that'd be just one example, but another example would be in the field of rights. This is very much of an issue. Now, are your rights violated by people yelling at you or saying things that you consider to be hate speech? No. The objective is you is we need an objective standard here, a clear bright line just as we have with economic power and political power. And here it's the initiation of physical force or fraud period, nothing short of that. And, but same thing. Notice if that becomes a gray area, you have people saying that, you know, silence is violence or speech is hate.
Speaker 2 00:34:31 And at the same time, you know, burning down cities and looting is a peaceful protesting. So, so the positions get completely reversed. The distinctions get completely muddled. And just as in economic power versus political power and the issue of rights and coercion and initiating force are muddled. I think that's what's happened on abortion. It is so muddled, not only are they flipping back and forth between the line called birth, they're flipping back and forth between the lines of rights versus, uh, you know, duties and, and the kind of the national historical appeal that people are looking at. And, um, so I, I, I conclude with it is a right. It's a right that the court should uphold. They should strike down any law that violates these rights. And I'm very troubled that the next steps will be legislatures legislating. And, and even if the national legislature does, which I don't think it should.
Speaker 2 00:35:28 Um, you're basically going to have legislative acts that amount to saying, this is how you should speak. This is how you should assemble. This is how you should, you know, and that's not how rights should be handled. Um, I was asked the other day, well, what would be the solu ideal solution? If it could be enacted, I suppose, a constitutional amendment, but we all know that the amendment process itself and caught includes voting. So it's a shame. Last thing I'll say is the idea that the, that certain rights are not in the constitution. I agree with Rob entirely that the idea that, uh, the ones not enumerated are in the ninth amendment, but we also know that for decades, the Supreme court has basically ignored the ninth amendment. So it's pretty hard for them to trot it out now, but even so Alito doesn't wanna chart it out now, but it's it the idea of enumeration?
Speaker 2 00:36:18 I mean, if, if enumerated powers was a legitimate concept, we could not have the air force. I mean, the air force is not in the constitution either. The Navy is the army is cuz he had an army and Navy there. Now why would the air force be legitimate? Because what the constitution is providing for is national defense, right? So, so it's necessary and proper. That's the clause from the constitution as well to assume that as technology improves, you would have this new capacity, you know? And so, and so no one would, would banish it. Well, same sex marriage. Isn't in the constitution either. And the Supreme court upheld that in over group fell what three or four years ago, Rob, I forget maybe more mm-hmm <affirmative> the, we, we forget that when the constitution was initially passed, it had no bill of rights because the Federalists were saying, well, listen, you can't violate these rights.
Speaker 2 00:37:08 So why do we have to enumerate them? There isn't anything in here, giving them the power to we've enumerated, what the government can do. Can it banish free speech? No, we didn't say it can banish free speech. And the anti-real list said, no, we don't really trust this document. You need to put in a list that you need, you need to give a list of rights. And unfortunately that led us down a road of people later forgetting how that was done and forgetting that there's a whole bunch of rights, uh, in this case I would say, including abortion rights. So I I'm very troubled that this is part of, I've talked before about America becoming very illiberal and very authoritarian. And I think, and not just in economics, but I think this is another example where normally the civil libertarians would say we're making progress, you know, interracial marriage, uh, contraception, um, same sex marriage, a woman's right to choose, uh, for whatever liberties we're losing on the economic side, the feeling was, well, at least we're gaining some on the call it the civil side. I think we're gonna start seeing, and we are seeing restrictions on speech assembly worship, right? We already have guns. I think this is just another case of the trend going in the direction of ilial but on the call it on the civil rights side. So I'll, I'll stop there.
Speaker 1 00:38:23 Yeah. There's, there's a couple interesting things I like to pick up very briefly on that and then maybe we'll have some questions from our audience. So I think the one area of disagreement, I think between us is I give a little more credence to the trimester analysis. Yeah. And to the idea that you do have this continuum. So yeah. You know, a child that's basically one day before birth or a fetus that's one day before birth really is fully developed. And so, but I, I, I see that as, I think we have to recognize that moral dimension, I see it as a moral issue rather than, uh, properly, rather than a legal issue. Cuz I, like I said, I don't want the busy body bureaucrats and the zealots coming in and then being given the power of the state to make decisions, uh, at, at rather than, you know, doctors and, and um, and, and patients making those decisions. Well, I do think,
Speaker 2 00:39:10 Let me say this. I, I agree with, let me just say, I, I didn't elaborate on that, but I agree with you. It's almost like to me, the principle is you have liberties. Now, if you're gonna be an idiot <laugh> and you're gonna be irrational and irresponsible in exercising your liberties, uh, that's your fault, but it doesn't make you a murderer. It just makes you irresponsible. And, and to me it still comes down to, is it in the self interest of the would be mother to do this or that? Now, if it's, if it's UN it truly is actually unsafe at the end. And I would actually say it's unsafe to her psychologically. In other words, your point about this really is starting to look like a, you, I mean, just psychologically I I'm told, and I read that it's damaging for would be mothers actually for many of 'em to have any abortions, but especially late term abortions. And I think the other issue is it takes two to tango. There, there would not be necessarily doctors willing to do this, but for the same reason, if you came to them and said, you know, please do a dangerous operation on me. <laugh> it should be perfectly within the rights of the doctors to say, no, I'm not gonna do that. And I
Speaker 1 00:40:15 Advises and, and by the way, that's a real issue. So, uh, I remember a year, a couple years back there was, um, a guy who did these sting operations, where they had this woman coming in, you know, an actor, basically the, well, she was actually pregnant, but she was not, she wasn't actually seeking abortion. She was trying to do a sting operation. Yeah. And she went into abortion clinics at 25 weeks or 26 weeks and said, right. You know, I wanna have an abortion. And the doctors actually did turn her down. Yeah. Uh, and it was supposed to be this big scandal, but you know, the actual substance of it was, she was turned down or she was told, look, look, we want you to do psychological counseling. We need to know more about what's going on with your situation before we do this. Yeah. So I, I do think, yeah, that is an issue. I that's why I said, I think it should be an issue of medical ethics that a, you know, a doctor would look at that and say, look, I can't, you know, I can't, I can't be cooperating in this, at this stage because I don't think it's the right thing to do. Um, but yeah, like I said, this is different
Speaker 2 00:41:08 By the way, the Mississippi, the, in terms of trimester, the Mississippi law to which, uh, Dobb refers, uh, banded at 15 weeks now 15 weeks is like, well, three weeks beyond the first trimester. But isn't it interesting though, because notice that's not the extreme position. If life begins at conception, then that's still murder. Right. Yeah. And I think what's, I think what might be interesting is at, if it goes, if this comes to pass and this goes back to the states and already states are using their trigger laws and things like that. Yeah. I think I heard the other day that Colorado, for example, has the most extreme view on the other side, namely, you can abor right up until the end. Well, if you think about what Rob and I have been saying, philosophically, the Colorado law is actually the most consistent one out there because it's really willing to say, since this is in murder, since this is really the rights of the would be mother, she has the right right up until it's a human being and I'm not sure you're gonna see things on the other side. You're not gonna see, oh, maybe, maybe there are completely banning at every stage. In some cases, maybe some of them will get bold because row's not there anymore. And they'll go that way. But, but you know, apart from the legality of it, philosophically, those are the more consistent positions. Of course I take the one that says the wo woman has the rights. Right.
Speaker 1 00:42:24 And, and uh, so one other showing to bring up that you came up and you're what you're talking about is the issue of the role of science. Cause I think part of the reason why there weren't a lot of bands on, on, on abortion in the 19th century was because it was not a, a safe, that's true, a widely available procedure, you know? So it wasn't something that, uh, you know, it didn't come up as much. And I think that's an interesting example of why we have this idea of UN enumerated rights. Yeah. That there are gonna be new circumstances that arise,
Speaker 2 00:42:53 Right. Like the air force.
Speaker 1 00:42:55 Yeah. Yeah. Like, like, well, and, and of course, you know, the, as you know, the, the standard on that is where the constitution, uh, the standard of, of, uh, prevailing standard of constitutional interpretation is that when it comes to granting government powers yeah. Expansive interpretations and, you know, <laugh>, won't be as loose as possible and allow you to do as many things. And, oh, well they say they don't say an air force, but that's really implicit. You can go ahead and do it. And then when it comes to rights, they say, oh no, we have to take the narrow whistle hustle interpretation and anything other than that is judicial activism. So there's that anti Liberty approach to it. And, um, one thing I find how about,
Speaker 2 00:43:33 How about also that just the awesome science, the awesomeness of the science of birth control mm-hmm, <affirmative> the pill the morning after the pill was like 1962 or so. Right the morning after Phil, all these other,
Speaker 1 00:43:43 And, and this is why the actual number, I think the actual number of abortions performed in America is lower than it was before Roe V Wade. It, it
Speaker 2 00:43:50 Peaked, peaked in it peaked in 74. Yeah. Yeah. If you see the charts, it
Speaker 1 00:43:54 Peaked and it's because of the widespread availability of birth control, but the other thing I wanted to throw in there.
Speaker 2 00:43:58 So I think that Rob, I think, actually think that makes the anti-abortion as angrier cause their view is, well, you could have prevented this. There's so many opportunities. Why are you still resorting to this very dangerous seemingly barbaric method? But I think if we broadly thought of phrases like birth control or a planned parenthood, I know those are dirty words to the uh anti-abortion but that in a rational person's life, we should be controlling the timing and manner of the birth suite birth. Right. And we should be planning. Parenthood should not be arbitrary things. These are huge decisions. Right. And we should be promoting the idea that they should be done rationally freely, you know, in a planned manner, as much as possible, but people will still be unsure, you know, as to whether to, uh, proceed or not. And that might mean they have late term abortions. I think
Speaker 1 00:44:52 A
Speaker 3 00:44:52 Lot of we have 15 more minutes. So I would love to, to just try to dive into some of the questions guys. Okay. Um, from, from Instagram, uh, Jeffrey Wright asks political question. I'm not sure if we touched on this yet, do you think it is a good talking point for, uh, Democrats in the midterms in terms of, uh, overturning low versus win?
Speaker 1 00:45:13 Well, I, I agree. I guess I'll, I'll, I'll do it stuff. Uh, I do think it's gonna help them and this, I mean, they need a lot of help by the way. Cause you know, if the, if the election is about the economy or if it's about inflation, if the economy's actually doing well, but it doesn't seem like it's doing well. Cuz a lot of all the gains are being basically taken back by inflation. So if it, if it's about inflation, then the Democrats are in trouble. If it's about foreign policy, it's not gonna be so hot for them. Uh, they need something that will energize their voters and this will definitely energize their voters. So I think this is, you know, potentially could save the Democrats from what looked like a bad midterm election. I think the consequences politically though are gonna come farther out, which is, uh, Richard just mentioning Colorado has an extremely, you know, uh, uh, basically no restrictions on abortion and Texas, I think now has one, uh, or it's one, maybe it's the trigger one that, that would cut kick in at six weeks or even even earlier.
Speaker 1 00:46:06 And would actually, I think there are proposals out there that make abortion a capital crime. So you would have this case where you have, um, you know, somebody in, in Colorado, in Texas, they're not that far away in one state, that's totally legal. And in the other state it's a capital crime. Well, that's, that's a big difference. You can talk about difference. You know, we always should have different laws in different states and the laboratories of democracy, but the idea that you could, you know, something that's totally fine in one state will get you killed executed by the government in another, that's a big difference and it's gonna create all sorts of horrible cases. So if somebody posts on the internet, um, uh, on Twitter, somebody proposed, you know, this thing that you have two college students, uh, studying at a college in Texas, one of those from Colorado, right?
Speaker 1 00:46:48 The, the, the, one of the, one of the girls is raped by an acquaintance on, you know, uh, on a date. She gets raped and it, she take and, and the, the girl from Colorado, her roommate from Colorado has one of these, uh, the morning after pill, you know, this, these, uh, chemical abortive patients and gives it to her, you know, as an emergency gives it to her and she takes it well, suddenly this is something totally legal in Colorado that she got in Colorado and brought down thinking it was legal. And then suddenly they're both on the hook for a capital murder charge. And that's the sort of thing that's going to arise. If, if this is implemented there's, uh, in Missouri, they proposed something where a law saying, making it a crime to help somebody cross state lines in order to get an abortion. Right? So this is going to create almost dread Scott like levels of dis cognitive dissonance between different states. So I think this is rather than settling this issue by sending it back to the states, like you're gonna make it way, way, way more contentious. So way, way, way worse. And this is going to go on for 10 years, uh, settling the political consequences of
Speaker 2 00:47:48 This. Well, the question was about the elections. I think it'll help the Democrats. And if they widen the argument to see the Republicans or anti-women, they'll just do that, they'll be smart to do that. It's not a great argument, but, um, this was a loser for the Republicans, I think.
Speaker 1 00:48:02 And, and maybe the advantage, maybe the advantage of the Democrats law SHA to define what a woman is.
Speaker 2 00:48:07 There are other questions, Jennifer.
Speaker 3 00:48:08 Yeah. Um, on YouTube, Joe Posto, originalism is a good thing. If it enlarges Liberty, the doctrine of incorporation moves in this direction. I think,
Speaker 2 00:48:19 Yeah. I think one of the reasons originalism is popular among conservatives and those on the right is the original system was pretty good. The original system was pretty pro Liberty. The slavery stuff was terrible, but we got rid of that in the 1860s. So, but yeah, it's not a fundamental grounding at any point, the Supreme court, the judicial review, which is, uh, in the system as well, Federalist 78 should be looking at every law from the standpoint of does this uphold individual rights or not period, not K said this. And Blackstone said that when you think about it, they're authorities, but it is kind of an appeal to authority. Yeah. Um,
Speaker 1 00:48:58 And, and, and one thing I'd add on that, I think that the sort of objective, this is a logical standard objectives view on, on, on judicial philosophy has sort of gravitated towards the idea that, that the kind of originals we want is not, you know, what was the definition of this word in, in 1776, but more the idea that you, you refer back to the original principles, the original principles of individual rights, and that's the standard for, for, for interpreting the constitution and, and interpreting the laws
Speaker 3 00:49:26 From Facebook, Marcus Herrera asks, what is the bigger implication for the Supreme court now that the precedent has been set for leaking documents?
Speaker 2 00:49:36 You take that one wrong. I think it's terrible.
Speaker 1 00:49:39 I, I, I think, you
Speaker 2 00:49:40 Know, the, the, the, uh, Briar retirement was leaked as well. So we we've had, and, and, and I think that actually pushed, you know, to get Jackson in there. So the whole idea of strong arming, these people, really what amounts look at them, gathering around the homes now. Yeah. Of the justices. This is, this is the rule of lawlessness. And it's really terrible. Now I actually think the Alito decision is lawless. So, and they'll say, that's why we get to fight back, you know? But the whole thing is being brutalized made
Speaker 1 00:50:11 Physically. Yeah. And I, for, I makes the whole world blind in this case. Yeah.
Speaker 3 00:50:15 All right. Uh, Vinco to car asks, are there not cases of a purpose traitor being charged with double murder when killing a pregnant woman?
Speaker 2 00:50:26 I've heard of cases like that. And of course it would assume that that's a human being in there. Yeah. So I, I think that's like hate speech. You should never have hate speech laws because you have free speech and hate itself is not initiating force against everybody, anybody, but now just before you strike say a homosexual and you say homosexual slurs, the problem is the striking. <laugh> not the slurs. And I think the same way here, you know, the idea of, of killing a, a pregnant woman. Um, I hate to say it, but it should be a, a single murder. It's not the murder of two people.
Speaker 1 00:51:01 I, I think's, there's a, there's a correct intuition that there's something extra to it. Right. That this should be punished separately. I mean, but there, but there're the differentiations between a wanted pregnancy and an unwanted pregnancy. Yeah. Right. So, you know, if, if the mother asks for the dis you know, the, for, for the fetus be destroyed, then that's a very different thing. Then she wanted to bring this to term and you, and you killed it. And then that would be a, I think there's a, a room for that to be a special crime, but calling it murder, it's not, there's lots of different ways you could call, you could extreme bodily mayhem or give it somebody some very severe punishment. Yeah. There are certain and recognize that without calling
Speaker 2 00:51:40 Murder there. Yeah. There's legal gradations for that. Yeah. Mm-hmm, <affirmative>
Speaker 3 00:51:44 All right. On Instagram, Brandon, the blacksmith asks, if you look at the result, all of a sudden there's popular support on the left to actually create a law that, uh, legalizes abortion, all, all abortions, federally, um, thoughts.
Speaker 1 00:51:59 Well, it's, it's gonna be a hard lift for them to pass. That is the problem, because you know, it is an issue in which people are divided. There's not that, you know there, there may be a, a congressional majority now. I'm not sure whether they can manage it. Um, and you know, like I said, Richards had made the point that the whole purpose of the ninth amendment and of the bill of rights and, and of the constitution is to remove certain things from popular vote to basically say certain fundamental rights should not be up for a vote. And, uh, so I think that that's my bigger concern is that if you get rid of that, now I wanted to mention earlier, one of the things I zeroed in on this, in this decision is that, uh, Alito has a lot of bad things to say about Lochner versus New York. Is this, oh, I know. Yeah. He, he all this, this a total example of it that
Speaker 2 00:52:42 Was outta the left field. Yeah. I like
Speaker 1 00:52:44 It. This case, I, I think in a way the left is sort of dealing with the chickens coming home to ROS because they got Lochner versus New York recognized as the right to contract, basically the right to free trade, the right to economic freedom as a, as an UN enumerated, right. That was protected by the constitution. And what happened is a bunch, a bunch of progressive
Speaker 2 00:53:03 Down regulations against business.
Speaker 1 00:53:05 Yeah. And a bunch of progressive jus during the new deal era basically got rid of Lochner and destroyed Lochner. So they could make room for lots of economic regulations. Well, now I think they're going to see is that the, the, the right has said, okay, great. We're glad you agree that we can't have these UN enumerated rights that the constitution is protecting. And therefore, now we're going to get rid of the protections against regulations of your, of your, of your personal life. And of
Speaker 2 00:53:30 I on this question, I think more likely is not that Congress passes a law legalizing abortion, cuz they'd have to get rid of the filibuster. They'd have to get up to 60 votes. Yes. More likely is that I think you're gonna see an increasing push to pack the court. They're gonna do what they did in Venezuela. They're gonna try to add as many seats as possible to dilute the power of those five conservatives.
Speaker 3 00:53:52 All right. Last question. Uh, from Facebook, Greg E asks worldwide, what is the more common position on societal norms regarding abortion and also referencing, uh, more stringent anti-abortion positions in European countries?
Speaker 2 00:54:08 Well, the treatment in the Europe is much more liberal, right? Rob, I, I think, uh, abortion rights are much more
Speaker 1 00:54:13 Widely. It depends, depends on where you are. So for example, there's
Speaker 2 00:54:16 Just not countries.
Speaker 1 00:54:18 There was, well, there was recently a case of Ukrainian women who have been raped by Russian soldiers who then got, you know, escaped from, uh, uh, escaped from that I think in BCA and places like that and escaped to Poland where they have an extremely restrictive regime and abortion. So suddenly they, uh, you know, some of them became pregnant by their rapists and they cannot get an abortion in Poland. So you have it's it's in the more Catholic countries, the more conservative countries, especially in Eastern Europe, uh, that you do have some extreme restrictions, uh, elsewhere in Europe. It's much more of course, open and liberal. Um, but again, the, the idea of the global consensus, you know, there's a global, you you'll rarely find a global consensus in favor of Liberty on a lot, whole lot of issues. Uh, if you want to ask that question about freedom of speech, right?
Speaker 1 00:55:04 There's may far fewer protections for freedom of speech anywhere except where they, the us, our first amendment is a much stronger protection for freedom of speech that anybody else has in the rest of the world. Most of the rest of the world is taken for granted. The government has certain powers to regulate, uh, people's speech. So, you know, you, for the same reason, you can't just go by, oh, it's tradition. Uh, somebody pointed out you knowdo sites, Edward Koch, six 17th century English Juris about the traditions about abortion. And somebody pointed out, well, you know, Edward Koch also wrote about how to conduct witch trials. <laugh>, you know, so you just go by tradition, you'd have to have to accept witch trials as traditional. So you go by tradition and you don't go by a global poll.
Speaker 2 00:55:45 Something else I would predict is just as after Roe V Wade, which legalized abortion. Right? Um, the shift went toward people saying on both sides, by the way, Republicans and Democrats abortion's okay. I mean the numbers, if you look at them up every year, more, more, it's now more than a majority people think abortion's okay now that's interesting. Now, if you reverse this, I think it's gonna go the other way. I think this is gonna cause such animosity and such antagonism that people are gonna start going the other way and saying, well, I'm also against abortion. Um, so that's kind of a paradox, right? In 17, in 1973, if you ask conservatives just gonna make people more or less, uh, favorable toward abortion, they would've said less. They would've said there's gonna be an array of abortions and people are gonna be pissed. That's not what happened. A number of abortions commented amid the freedom, obviously. Uh, and that was a paradox to people. And so if that's reversed, imagine how much more illiberal we're gonna become. People in their own opinions will become less favorable to, uh, women's freedoms. I worry about that.
Speaker 3 00:56:51 All right. Well that brings us about up to time. I guess I would only add that, uh, if I was forced to try to find a silver lining in all of this, um, this very dark cloud, it would be that, uh, this has the potential to unleash a huge wave of technological and medical innovation, uh, to E improve even the birth control options that we have, and also, um, provide new solutions for women seeking to manage their lives and, and terminate pregnancies, uh, in a way that may yeah. Be beyond, beyond the, uh, the judges and the politicians and, and, uh, relegate this to, to their sole discretion. So that's something that we can all hope for. So thank you guys. This was a really thank you, uh, spectacular conversation. Um, thanks. All of you who joined all of you who asked questions. Um, if you are enjoying our programming, please consider supporting the outward society with a tax deductible donation. I will be back in three hours, I'm gonna be talking to buck angel. He is a transsexual activist, an educator. Um, you guys know I had Kara Dansky who wrote the abolitionist of sex, very critical of the transgender activist community. So, um, going to invite, uh, an actual trans person on to, um, to provide a, a slightly different perspective. So I hope you'll join us for that. Thanks everyone.
Speaker 2 00:58:21 Thanks, Rob. Thanks. Uh, thanks everyone for, thanks everyone.
