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A Dispassionate Review of Roe v Wade · Stuff You Should Know

0:01
Speaker 1: Welcome to Stuff you should know, a production of I
0:04
Speaker 1: Heart Radio. Hey, and welcome to the podcast. I'm Josh,
0:13
Speaker 1: and there's Chuck and Jerry's here too, but she's hiding
0:15
Speaker 1: behind us, and this is stuff you should know. That's right.
0:20
Speaker 1: I think I have already titled this episode a dispassionate
0:23
Speaker 1: look at Roe v. Wade. Yeah, akin to our episode
0:29
Speaker 1: on kissing or roller coasters? Right, roller coasters is pretty appropriate, Yeah,
0:35
Speaker 1: for sure, because it's been a heck of a ride
0:38
Speaker 1: since h That's right. So, uh, just so folks know,
0:42
Speaker 1: we're gonna just sort of take a look at the case,
0:45
Speaker 1: the original case itself, and this idea was hatched, um
0:50
Speaker 1: quite a few weeks ago, and obviously we kind of
0:53
Speaker 1: sped that process along and we'll talk about that towards
0:56
Speaker 1: the end. Okay, cool, that sound good. We're doing this
1:01
Speaker 1: episode apropos of nothing at all. We just decided to
1:03
Speaker 1: try to do it finally, right, So, um, we're talking
1:07
Speaker 1: about Roe v. Wade. It's a Supreme Court case again
1:09
Speaker 1: from nineteen seventy three. I think it was um published
1:13
Speaker 1: at the very beginning of nineteen seventy three, and it
1:16
Speaker 1: basically said, um, all you states which at the time.
1:20
Speaker 1: Most of the states in the late sixties early seventies
1:23
Speaker 1: had bands on abortion, some of them almost total. Uh.
1:27
Speaker 1: The Supreme Court said, all those laws are unconstitutional. We
1:30
Speaker 1: have to re refigure this. And it was the culpination
1:34
Speaker 1: of like um, a whole process, a whole bunch of
1:37
Speaker 1: lawsuits were kind of file at the same time about
1:39
Speaker 1: the same thing. UM. But it was in no way
1:43
Speaker 1: shape or formed less sweeping because you know, it was
1:46
Speaker 1: kind of in the zeitgeist. It's what people were talking about.
1:48
Speaker 1: I think it took I read it took both sides
1:51
Speaker 1: of the abortion issue by surprise. It was that kind
1:55
Speaker 1: of sweeping and that much of a complete course reversal
1:59
Speaker 1: for the United States as far as how we approached
2:01
Speaker 1: abortion goes right. It's a good way to say it.
2:06
Speaker 1: Abortion is nothing, and we'll probably do I mean, but
2:10
Speaker 1: I think we've long wanted to do just a full
2:12
Speaker 1: episode on abortion, and so we'll probably work that one
2:14
Speaker 1: in at some point in the near future. But abortion
2:17
Speaker 1: has always been around. Uh, It's usually always been regulated
2:21
Speaker 1: in some form or another. UM, usually in what we'll
2:26
Speaker 1: call the third trimester. But we'll get to that stuff
2:28
Speaker 1: later as well, or later in this episode UM. But
2:32
Speaker 1: in the nineteenth and twentieth centuries, there were no federal
2:36
Speaker 1: laws on the books, and it was left to states
2:39
Speaker 1: to kind of come up with their own interpretations of
2:43
Speaker 1: UH what was kind of usually originally based on English
2:46
Speaker 1: common law. And beginning in the eighteen hundreds is when
2:51
Speaker 1: a lot of the states started really restricting or outright
2:54
Speaker 1: banning abortion. And I believe in the nineteen sixties there
2:59
Speaker 1: were not these states left at all UH that didn't
3:02
Speaker 1: have bands or restrictions on abortion. Yeah, And the nineteenth
3:06
Speaker 1: century UM was kind of a pivotal point for UM
3:10
Speaker 1: the concept of abortion in the United States for a
3:13
Speaker 1: couple of reasons. There's a historian named Leslie Jay Reagan
3:16
Speaker 1: who wrote When Abortion was a Crime UM, And she
3:19
Speaker 1: wrote that in eighteen fifty seven, the American Medical Association,
3:23
Speaker 1: which had just been founded, basically said, Hey, we need
3:26
Speaker 1: to start a campaign to outlaw abortion in part, UH,
3:29
Speaker 1: historians say, to help wrestle UM control of women's health
3:35
Speaker 1: away from midwives and to help consolidate basically all aspects
3:39
Speaker 1: of health, including that under doctors. That's one thing that
3:42
Speaker 1: people say led to the rise of abortion laws anti
3:46
Speaker 1: abortion laws in the United States. And then there's there's
3:50
Speaker 1: on both sides, there's allegations that some of the earliest
3:53
Speaker 1: proponents for for or against abortion UM were racially mo
4:00
Speaker 1: devated to on the UM. On the the proponent the
4:04
Speaker 1: abortion proponent side, they say that some of these earliest
4:08
Speaker 1: UM laws were basically white Protestant Americans starting to get
4:13
Speaker 1: nervous at all of the immigrants that were coming over
4:16
Speaker 1: and saying, we need to step up, you know, the
4:18
Speaker 1: birthrate among white Protestant Americans, and UM, one good way
4:22
Speaker 1: to do that is the outlaw abortion. And then the
4:25
Speaker 1: UM the anti abortion side says, no, no, that may
4:29
Speaker 1: or may not be true, but you guys were eugenicists,
4:32
Speaker 1: and you actually wanted abortion so that you could control
4:36
Speaker 1: UM undesirable meaning non white populations in the United States.
4:41
Speaker 1: So both sides are slinging mud all the way back,
4:43
Speaker 1: starting in the nineteenth century. It just kind of gets
4:46
Speaker 1: worse from there. Yeah, and of course you're using that
4:48
Speaker 1: terminology because they didn't have terms like pro choice in
4:51
Speaker 1: pro life at that point. Yeah, but I also see
4:54
Speaker 1: UM it seems to be more UM academic to call
4:59
Speaker 1: it pro abortion an anti abortion because pro life is
5:02
Speaker 1: such a it's such a loaded term. It's like, oh, oh,
5:05
Speaker 1: you don't like life. You know, if you're if you're
5:08
Speaker 1: if you're pro abortion, do you that doesn't mean that
5:11
Speaker 1: you're against life. So I saw a pro abortion and
5:15
Speaker 1: anti abortion kind of settling that dispute well, and the
5:20
Speaker 1: both sides have also taken those terms and bent them
5:23
Speaker 1: to their own will uh in more recent years, by
5:27
Speaker 1: saying things like we're not pro abortion, we're pro choice,
5:31
Speaker 1: and other people saying we're not anti choice, we're pro life,
5:35
Speaker 1: and then other people saying you're pro birth, not pro life.
5:39
Speaker 1: So it's uh. This sort of leads us into what
5:42
Speaker 1: I like to call the central mess of this, the
5:46
Speaker 1: whole debate really um and this is as it relates to.
5:50
Speaker 1: You know, legally speaking, there is a larger ethical and
5:53
Speaker 1: moral debate which you know obviously plays a huge party.
5:57
Speaker 1: You can't um remove that, but we're here to talk
6:00
Speaker 1: about the legal case. But legally speaking, the all caps
6:04
Speaker 1: huge mess, which has always been around and always will
6:07
Speaker 1: be around, is that nobody, doctors and certainly lawyers and
6:14
Speaker 1: justices and judges have never been able to agree on
6:19
Speaker 1: what life means and when that starts. And that is
6:23
Speaker 1: the central crux and the central mess of it all
6:26
Speaker 1: that will never get solved and has never been solved
6:30
Speaker 1: because it's unsolvable. Um, there is no definition that everyone
6:35
Speaker 1: agrees on. And even the justices in the original Roe v.
6:39
Speaker 1: Wade case admit to this and say, you know, doctors
6:43
Speaker 1: don't agree on this. We certainly can't decide this. So
6:46
Speaker 1: that created this, this quagmire and this uh many pronged
6:51
Speaker 1: debate um over you know, when is it okay? If
6:56
Speaker 1: ever is it a crime? When is it a crime?
6:59
Speaker 1: How severe is that crime? What about the mother and
7:02
Speaker 1: her health? What about the health of a fetus? And
7:05
Speaker 1: who decides all this stuff? Yeah, we've I mean despite
7:09
Speaker 1: not knowing and maybe not being able to know when
7:12
Speaker 1: life actually begins. Um, there have been attempts over the
7:16
Speaker 1: years at abortion regulations that kind of try to take
7:20
Speaker 1: a stab at it. And one of them was quickening.
7:23
Speaker 1: I saw this was an early nineteenth century one. And
7:25
Speaker 1: quickening is a two for right for yeah, for that
7:29
Speaker 1: moment when you first see Highlander two in your life
7:31
Speaker 1: changes forever for the better. No, it's actually when the
7:36
Speaker 1: the mother first feels the fetus moving inside of her.
7:40
Speaker 1: They call that quickening, and it's like a super nineteenth
7:43
Speaker 1: century a grarian FARMI um, kind of weird, almost animal term,
7:49
Speaker 1: but that's that's what they called it. And that's when
7:51
Speaker 1: they defined the beginning of life. And that's when they said, okay,
7:54
Speaker 1: after that, we're regulating abortion after a quickening. That's that
7:58
Speaker 1: was the first attempt and that kind of um that
8:01
Speaker 1: kind of underscores like the the attempts since since then,
8:05
Speaker 1: which are basically based on this idea of viability, Like
8:08
Speaker 1: if that fetus was removed from the mom what chance
8:13
Speaker 1: would it have to survive on its own? And if
8:16
Speaker 1: the if a doctor consensus of doctors say after about
8:20
Speaker 1: this time or at about this state or about this
8:23
Speaker 1: stage and pregnancy of fetus could probably survive on its own. Um,
8:27
Speaker 1: that has helped kind of define where, uh, where abortion
8:32
Speaker 1: regulation begins and ends. That's right. So um, the Supreme
8:37
Speaker 1: Court back then in the nineteen seventies grappled with this
8:40
Speaker 1: and like I said, they they flat outside. I mean,
8:43
Speaker 1: here's the quote. When those trained in the respective disciplines
8:45
Speaker 1: of medicine, philosophy, and theology are unable to arrive at
8:49
Speaker 1: any consensus as to when life technically begins, the judiciary
8:53
Speaker 1: at this point in the development of a man's knowledge,
8:56
Speaker 1: UM is not in a position to speculate, is to
8:59
Speaker 1: the end, sir. So they you know, at least the
9:03
Speaker 1: Supreme Court has flat out said over the years like hey,
9:06
Speaker 1: we can't define this UM. That would have made it
9:10
Speaker 1: even all the trickier if they weighed in saying, well,
9:12
Speaker 1: here's what we think. Right. So the upshot of all
9:16
Speaker 1: this is, we don't know when life begins, but we
9:18
Speaker 1: do know that there are plenty of women out there
9:20
Speaker 1: who don't, who get pregnant and don't want to carry
9:23
Speaker 1: the fetus to full term. They don't want to have
9:25
Speaker 1: that child for one reason or another. UM. So the
9:29
Speaker 1: government decided that it needed to step in and figure
9:32
Speaker 1: out how to balance those two things. They said that
9:35
Speaker 1: the state has an invested interest in protecting the life
9:41
Speaker 1: of the unborn while also protecting the interests of a
9:46
Speaker 1: woman's right to choose whether she has a child or not.
9:50
Speaker 1: And they basically took a bunch of plates, they put
9:55
Speaker 1: them on the end of polls, they started spinning them.
9:58
Speaker 1: They got on a unicycle and rode out on a
10:01
Speaker 1: high wire over the Green Canyon. That's right, Yeah, I
10:06
Speaker 1: think that's a good time for a break with that
10:08
Speaker 1: image in people's heads. And we will talk about the
10:13
Speaker 1: case itself and who Row was and who Wade was
10:16
Speaker 1: right after this, all right, So if you're gonna talk
10:43
Speaker 1: about Roe v. Wade, you gotta talk about Row and Wade.
10:47
Speaker 1: Um Row. And I think, you know, I'm not sure
10:50
Speaker 1: that a lot of people have really studied this. They know,
10:53
Speaker 1: may know a lot about the case, but um, I
10:56
Speaker 1: had never studied it to this degree until we did that,
11:00
Speaker 1: and it's just good information to have, especially these days.
11:04
Speaker 1: So Row was Jane Rowe obviously a made up name
11:08
Speaker 1: like Jane Doe, and they usually do use Jane Doe.
11:12
Speaker 1: But when there are a bunch of doughe cases on
11:14
Speaker 1: the docket, uh, and especially in this one, there was
11:17
Speaker 1: another dough on the docket that had to do with abortion, uh,
11:21
Speaker 1: Doe v. Bolton, which we'll talk about as well a
11:24
Speaker 1: little bit. Uh, they just change it to Row. It's
11:26
Speaker 1: that simple. But we do know, and we've known for
11:30
Speaker 1: decades now, who Jane Roe really was, and that was
11:33
Speaker 1: a woman uh named Norma McCorvey and her twenties in Texas. Yeah,
11:39
Speaker 1: so at the time Texas had um one of the
11:42
Speaker 1: most comprehensive band on abortion. It was basically UM. It said,
11:47
Speaker 1: if if the fetus is malformed, their words, if the mother, UM,
11:53
Speaker 1: if the mother's life is in danger, or I think
11:56
Speaker 1: if UM, if the what was the last think, if
12:00
Speaker 1: if it's the product of a rape. Then those are
12:03
Speaker 1: the three different criteria that an abortion could possibly be
12:07
Speaker 1: UM carried out, under performed under and UM. That meant
12:11
Speaker 1: that since Norman McCorvey didn't didn't fit any of those
12:14
Speaker 1: criteria but still didn't want the kid, that she was
12:18
Speaker 1: looking for an abortion but couldn't get one in Texas.
12:20
Speaker 1: She also didn't have very much money UM and so
12:24
Speaker 1: she couldn't travel out of state like a lot of
12:26
Speaker 1: more well to do women in her situation would have done.
12:29
Speaker 1: So she um started to get desperate because I mean,
12:32
Speaker 1: I didn't say this, chuck, but she had already had
12:34
Speaker 1: two kids. This was her third child. She wasn't married
12:37
Speaker 1: to the man who UM she had gotten pregnant by,
12:41
Speaker 1: and in fact was a lesbian who was in a
12:43
Speaker 1: committed relationship I think at the time. So yeah, she
12:46
Speaker 1: really did not want to have this kid. Yeah, she
12:49
Speaker 1: had given the other two up for adoption just so
12:52
Speaker 1: everyone knows. It's not like she had two kids at home. Um,
12:55
Speaker 1: she had given the other two up. I think one
12:57
Speaker 1: to a family member, I'm not sure about the other one.
13:00
Speaker 1: Definitely adopted the second one. The first one was raised
13:02
Speaker 1: by her parents, right, which is also adoption. But she
13:07
Speaker 1: is now in a position where she doesn't want to
13:10
Speaker 1: have this third one and was put in touch with
13:13
Speaker 1: an attorney name Linda Coffee and Coffees partner Sarah Weddington,
13:20
Speaker 1: two recent law school grads who were who were looking
13:23
Speaker 1: for a case like this. And this is where I
13:26
Speaker 1: don't know if you've seen the great Alexander Payne movie
13:29
Speaker 1: Citizen Ruth, But it's a movie about basically the Roe v.
13:35
Speaker 1: Wade Um debate with Laura Dern and it's his first
13:40
Speaker 1: movie and it's great and it's a great comedic satire.
13:44
Speaker 1: But wait what, you haven't seen it. No, it's comedic.
13:49
Speaker 1: Oh yeah, it's a it's a Alexander Payne satire. Is
13:52
Speaker 1: it a musical comedy? No? No, no, it's just a
13:55
Speaker 1: movie basically. You know, Laura Dern is the central figure
13:59
Speaker 1: who was a drug addict who is pregnant and gets
14:03
Speaker 1: co opted by both sides like they both have think
14:05
Speaker 1: they have found the golden case to make their case
14:09
Speaker 1: and and true Alexander Paine fashion like, you know, both
14:12
Speaker 1: sides are played rather satirically and there are no, um,
14:17
Speaker 1: no winners. Really. Uh that's great one that sounds like
14:21
Speaker 1: real life for sure. Yeah, but that that basically is
14:24
Speaker 1: what's happened. So she was um you know, later says
14:27
Speaker 1: she was kind of co opted and manipulated, which we'll
14:32
Speaker 1: get into by these two uh women who were her attorneys. Um.
14:39
Speaker 1: Later in life she became a born again Christian and
14:42
Speaker 1: this is when most of that stuff out about the
14:44
Speaker 1: attorney's manipulating her came out and after being pro choice
14:48
Speaker 1: for her whole life, was pro life. And then uh
14:53
Speaker 1: came out later almost like a deathbed confession, and said,
14:56
Speaker 1: you know what they paid me. The quote was it
14:59
Speaker 1: was a mutual thing. I took their money. And this
15:01
Speaker 1: is to be clear, the uh, the pro life side
15:04
Speaker 1: paid her uh to reverse course is what she says.
15:07
Speaker 1: At least, it was a mutual thing. I took their
15:10
Speaker 1: money and they put me in front of the cameras
15:12
Speaker 1: told me what to say, and that's what I said.
15:14
Speaker 1: I did it well because I was a good actress. Yeah,
15:17
Speaker 1: and there's a there's a lot of people who argue
15:20
Speaker 1: that she wasn't ever really pro choice either. Um, that
15:24
Speaker 1: that she was um and ed helped us with this one.
15:27
Speaker 1: That she was basically more of a mercenary who looked
15:29
Speaker 1: out for herself. And I've read quotes from her that
15:32
Speaker 1: basically say as much that she she didn't really care
15:35
Speaker 1: about this whole huge um case that she was the
15:39
Speaker 1: center of. She just wanted an abortion, and that was
15:42
Speaker 1: the thing that she said that she was manipulated about.
15:44
Speaker 1: That coffee in Weddington basically talked her out of getting
15:49
Speaker 1: an abortion because they were worried that if she didn't um,
15:54
Speaker 1: if she didn't have the child by the time the
15:57
Speaker 1: the Supreme Court heard this case, she would no longer
16:00
Speaker 1: of standing because at the time, the courts used to
16:03
Speaker 1: rule that if you weren't actively pregnant, if you'd already
16:06
Speaker 1: had the kid, your case would just get thrown out
16:09
Speaker 1: because you weren't pregnant anymore. So who cares. And we'll
16:11
Speaker 1: talk a little more about that in a minute, But
16:13
Speaker 1: that was why, Um, they they supposedly talked her out
16:17
Speaker 1: of it. They say they definitely didn't talk out of it.
16:20
Speaker 1: But at the same time, they didn't help her find
16:22
Speaker 1: an abortion, which is what she was after when she
16:24
Speaker 1: contacted them in the first place. Right. So, uh, if
16:27
Speaker 1: you're wondering why this happened, she was, I believe, pregnant
16:32
Speaker 1: in nineteen sixty nine, and this case wasn't rendered until
16:36
Speaker 1: nineteen seventy three. It's because a lot of stuff happened
16:40
Speaker 1: in nineteen seventy one. They were gonna begin hearings in
16:43
Speaker 1: December of that year when both Justices Hugo. Black and
16:47
Speaker 1: John Marshall Harlan the second retired from poor health. That
16:52
Speaker 1: was in you know, they died. They both died before
16:56
Speaker 1: the end of nineteen seventy one, so they were definitely
16:59
Speaker 1: in poor health. Yeah, the prophecy turned out to be
17:02
Speaker 1: correct well and just crazy timing. I mean, I don't
17:04
Speaker 1: think we've seen I we definitely haven't seen anything like
17:07
Speaker 1: that since then. But for two justices to retire, you know,
17:11
Speaker 1: within days of each other as pretty monumental. Um. And
17:15
Speaker 1: so President Nixon of course was looking at chops and
17:18
Speaker 1: appointed William wind Quist. Always have the trouble with that
17:22
Speaker 1: wind Quist. I know, I just go pretend like the
17:27
Speaker 1: h is called Prince's pride in that moment. Uh and
17:31
Speaker 1: Lewis F. Powell Jr. Nominated on the same day in
17:35
Speaker 1: October seventy one, came in and because these Supreme Court
17:40
Speaker 1: cases take so long to get through, Um, they decided basically,
17:45
Speaker 1: after a lot of handwringing, that even though they had
17:48
Speaker 1: begun hearing arguments on that case, that they would redo
17:51
Speaker 1: it all with the nine justices instead of the seven. Yeah.
17:55
Speaker 1: So this was October two when the case that was
18:00
Speaker 1: eventually decided started in earnest Um. So yeah, by this time, um. Uh,
18:06
Speaker 1: Norma McCorvey had already had her child, Her child was
18:10
Speaker 1: two and a half years old, and already had been
18:13
Speaker 1: given up for adoption. Um. But they still ruled that
18:16
Speaker 1: she had standing. That essentially it was not moot right, No,
18:20
Speaker 1: it wasn't so so that that's um, let's just talk
18:23
Speaker 1: about that real quick. So, like I was saying, like
18:26
Speaker 1: courts used to rule that if you weren't actually pregnant,
18:28
Speaker 1: you couldn't have standing in a pregnancy related case, even
18:31
Speaker 1: if you'd filed the initial lawsuit while you were pregnant.
18:35
Speaker 1: You weren't pregnant any longer. So whatever, So the Supreme Court.
18:38
Speaker 1: One of the things they did in Row was established
18:42
Speaker 1: that um, pregnancy could not be rendered moot because, as
18:47
Speaker 1: they put it, pregnancy provides a classic justification for a
18:51
Speaker 1: conclusion of non muteness, which apparently is a real legal
18:54
Speaker 1: term because it says it could truly be capable of
18:57
Speaker 1: repetition yet evading of you, meaning that any time you
19:02
Speaker 1: um that, like an appellate said, Hey, these guys passed
19:06
Speaker 1: me over for lack of standing because I'm not pregnant anymore. Um,
19:10
Speaker 1: the following the letter of the law, the appellate court
19:15
Speaker 1: would be like, well, we can't hear because they're right,
19:17
Speaker 1: you don't have standing anymore. So the Supreme Court finally said,
19:19
Speaker 1: forget that pregnancy is a recurring thing. Um, it's a
19:22
Speaker 1: it's a transitory thing, but it's actually a thing, so
19:25
Speaker 1: we need to be able to review it. So they said, yes,
19:27
Speaker 1: if you are a woman who has been pregnant or
19:31
Speaker 1: even could be pregnant, you have standing in cases like this. Yeah,
19:35
Speaker 1: because basically they would never hear a case because it
19:37
Speaker 1: takes way longer than nine months to like get this
19:41
Speaker 1: thing up to the court system and review it. Yeah,
19:44
Speaker 1: and I mean all the initial prosecutor have to do
19:46
Speaker 1: with be like file a bunch of emotions to delay
19:48
Speaker 1: it for nine months and then the case gets automatically
19:50
Speaker 1: thrown out. And they even say, like, our law should
19:53
Speaker 1: not be that rigid. So that was a big thing
19:55
Speaker 1: that they did in in the row Um opinion. For
19:58
Speaker 1: a brief side track into levity, I cannot hear the
20:02
Speaker 1: word moot without thinking of that great Saturday Night Live
20:05
Speaker 1: sketch with Jesse Jackson years ago, the question is moot?
20:09
Speaker 1: Did you ever see that one? No, it was a
20:12
Speaker 1: game show called the Question Is Moot, and Jesse Jackson
20:14
Speaker 1: was the game show host, and basically he would just
20:17
Speaker 1: he would laugh out a big question and anytime someone
20:21
Speaker 1: would go to answer it, he would just interrupt him
20:23
Speaker 1: and say, the question is moot. And like my brother
20:26
Speaker 1: and I said the question is moot to each other
20:28
Speaker 1: over and over for your period of years when we
20:30
Speaker 1: were kids. It was pretty great. No, I've never seen
20:33
Speaker 1: that one. Alright, So back to Roe v. Wade funniness
20:36
Speaker 1: now over Um, we have to talk about a few
20:39
Speaker 1: of these cases because you know, we tend to think
20:42
Speaker 1: of Roe v. Wade as this sort of this vacuum
20:45
Speaker 1: single case but there were many cases that went into
20:48
Speaker 1: UM kind of shaping what ended up happening UM. The
20:51
Speaker 1: first of which was probably UM United States versus v Which,
20:56
Speaker 1: which was in one when a doctor in d C,
21:01
Speaker 1: Dr Bowich, was performing abortions and said uh, and was
21:06
Speaker 1: prosecuted for doing so under d C law because d
21:09
Speaker 1: C law said, um necessary it can only be done
21:12
Speaker 1: if it was necessary for the preservation of the mother's
21:14
Speaker 1: life or health. Key under the direction of a competent
21:18
Speaker 1: licensed practitioner of medicine. And he said, this is really
21:23
Speaker 1: unconstitutionally vague of of what that means, like what does
21:27
Speaker 1: health of the mother even mean? And a really key
21:30
Speaker 1: thing came out of that, right, Yeah, they they said, Nope,
21:34
Speaker 1: it's actually not overly vague. It actually makes sense. But
21:38
Speaker 1: they ruled in their opinion, so they ruled against voisch
21:42
Speaker 1: Um and in favor of DC's abortion law. But they
21:45
Speaker 1: did say, but we could see how health could include
21:50
Speaker 1: something like a mother's psychological health or the impact an
21:53
Speaker 1: unwinded child might have on a family that but he
21:57
Speaker 1: knew and that was huge. So that was a precedent.
21:59
Speaker 1: And we saw in the Freedom of the Press episode
22:02
Speaker 1: that sometimes justices will like rule against the person, but
22:06
Speaker 1: then we'll establish a foundation for a later case by
22:08
Speaker 1: just mentioning something like that, and that's what they did
22:11
Speaker 1: in that case. Another few cases that had a big
22:14
Speaker 1: impact were the first two were Meyer versus Nebraska in
22:20
Speaker 1: nineteen twenty three, which was post World War One. There
22:24
Speaker 1: was a large anti German sentiment, so they basically enacted
22:28
Speaker 1: laws and said, you can't teach foreign languages in school anymore.
22:32
Speaker 1: Only English is the only language you can teach. Uh.
22:35
Speaker 1: And then Pierce versus Society of Sisters, which was based
22:39
Speaker 1: on based on an Oregon case where the state of
22:43
Speaker 1: Oregon said all kids have to go to public school.
22:46
Speaker 1: You can't go to private school because of the Oregon
22:49
Speaker 1: Compulsory Education Act. So those two factor in and how
22:54
Speaker 1: they affected how the Fourteenth Amendment and the Ninth Amendment
22:58
Speaker 1: were framed in terms of row. And it's a little confusing,
23:02
Speaker 1: but it's a little wonky, but the upshot of it
23:06
Speaker 1: is that the the in nineteen twenty three and nineteen
23:09
Speaker 1: twenty five, the Supreme Court established a precedent by saying
23:13
Speaker 1: we're going to start in interpreting the Ninth Amendment, which
23:15
Speaker 1: basically says, even though we've mentioned some stuff in the
23:19
Speaker 1: Constitution and the Bill of Rights specifically, that doesn't mean
23:22
Speaker 1: that other stuff isn't constitutionally protected, like there are other
23:26
Speaker 1: rights to that we didn't mention. Figure it out, Supreme
23:29
Speaker 1: Court basically what the framers were saying, or the Ninth
23:32
Speaker 1: Amendment writers, and then the fourteenth Amendment UH grants equal
23:36
Speaker 1: protection under the law with due process. It's called the
23:39
Speaker 1: due process clause. And so they put these two things
23:42
Speaker 1: together and they basically said that um, that that the
23:46
Speaker 1: Court now has the ability to interpret whether something not
23:51
Speaker 1: mentioned in the Constitution is a constitutionally protected right. That's
23:55
Speaker 1: what those two cases did, and that established a longstanding
23:59
Speaker 1: precedent that gave the Supreme Court that ability. Sure, because
24:02
Speaker 1: the Constitution was written in the eighteenth and nineteen centuries,
24:07
Speaker 1: and obviously there were not things like the Internet back
24:10
Speaker 1: then and all kinds of things that we have to
24:12
Speaker 1: decide upon these days. So but if you're an original list,
24:15
Speaker 1: then that's great because that just means that you can
24:18
Speaker 1: overturn the existence of the Internet by outlawing it if
24:21
Speaker 1: you're a Supreme Court just that's right. What did Thomas
24:23
Speaker 1: Jefferson think uh. Griswold versus Connecticut was the other case
24:27
Speaker 1: in ninety five, and they used that. I don't think
24:31
Speaker 1: we said that was the doctrine was ended up being
24:34
Speaker 1: called substantive. Jeez, here we go, substantive due process. Can
24:41
Speaker 1: I take a crack at it? I would say substantive
24:45
Speaker 1: due process. Substantive. Yeah, you know why, because that's correct.
24:50
Speaker 1: I knew I was tripping over it a very obvious thing.
24:53
Speaker 1: They're substantive, substantive due process. Let's just call it SDP.
24:59
Speaker 1: Uh So in sixty five with Grizzwald versus Connecticut, they
25:03
Speaker 1: use that s DP doctrine to say that Americans also
25:08
Speaker 1: have a right to privacy because that's not mentioned in
25:11
Speaker 1: the Constitution either. But like I mean, this kind of
25:14
Speaker 1: opened up all what we you call like the bedroom cases,
25:17
Speaker 1: which is, hey, we can't um legislate what happens in
25:21
Speaker 1: someone's bedroom. That's that's a right, inherent right to privacy,
25:25
Speaker 1: and that covers and that ended up covering according to Scotus, marriage, procreation, contraception,
25:32
Speaker 1: family relationships, child rearing, and education, which was sort of
25:37
Speaker 1: the basis of everything in terms of row. Yeah, and
25:40
Speaker 1: Grizzwald versus Connecticut was not really the first case that
25:44
Speaker 1: tested that. I think Loving versus West Virginia, which UM
25:47
Speaker 1: the Supreme Court overruled laws that that UM kept interracial
25:52
Speaker 1: couples from marrying UM. But but Grizzwold versus Connecticut was
25:56
Speaker 1: short on the heels of that, and it was over
25:57
Speaker 1: birth control rights. But also that led the that right
26:00
Speaker 1: to privacy, that substantive due process doctrine kind of led
26:05
Speaker 1: to the creation of UM, led to everything from the
26:09
Speaker 1: the support for gay marriage, UM overturning laws that band
26:14
Speaker 1: gay sex, I mean, all sorts of different stuff. It
26:17
Speaker 1: just basically said there's really private things in people's everyday
26:20
Speaker 1: lives that the government has no business or no saying.
26:23
Speaker 1: So we're just gonna leave that alone. But there's a
26:26
Speaker 1: big problem with that, Chuck, And this is a huge problem,
26:29
Speaker 1: at least as far as law goes. The idea that
26:33
Speaker 1: Americans have a right to privacy guaranteed by the Constitution
26:39
Speaker 1: is technically illegal fiction. If you're an originalist and you
26:43
Speaker 1: read the Constitution literally and you say, okay, what would
26:48
Speaker 1: the founders think about this? What were they thinking at
26:50
Speaker 1: the time they wrote this document? Then they would say
26:55
Speaker 1: they didn't put right to privacy in there, and maybe
26:58
Speaker 1: they do have a right to privacy. Americans do, but
27:01
Speaker 1: it's not in the constitution, meaning that it could be
27:04
Speaker 1: overturned later by a court because it's not constitutionally protected.
27:11
Speaker 1: And that is what put Roe v. Wade on shaky
27:14
Speaker 1: ground from the beginning, is that it was argued and
27:16
Speaker 1: decided as a right to privacy case. And again, privacy
27:20
Speaker 1: in this sense is not privacy like you and I
27:22
Speaker 1: would think of like you know, nobody looking over his shoulder,
27:25
Speaker 1: but more um, the an American's ability and freedom to
27:29
Speaker 1: make decisions about what affects their own personal life without
27:33
Speaker 1: government intervention, that term of privacy. But by basing it
27:37
Speaker 1: on that, it's set Roe v. Wade up on rather
27:40
Speaker 1: shaky legal foundation. Uh. And that was actually a kind
27:43
Speaker 1: of a pet argument of Ruth Bader Ginsburg. Yeah, I mean,
27:50
Speaker 1: she was on record as saying that she thought it
27:52
Speaker 1: was on shaky ground and for good reason, and that
27:56
Speaker 1: it should have never been decided on those grounds. And
28:00
Speaker 1: and uh was was certainly not saying that she was
28:03
Speaker 1: pro life, but was on record as saying that it
28:08
Speaker 1: tried to do too much, to sweeping too fast, and
28:11
Speaker 1: the way it should have gone about, Uh was you
28:14
Speaker 1: know X y Z and uh So who knows what
28:18
Speaker 1: had happened, what would have happened had she um you know,
28:22
Speaker 1: had to cover one of these cases. But well, what
28:24
Speaker 1: she was at the time one of her cases was
28:27
Speaker 1: was on its way to the Supreme Court and it
28:29
Speaker 1: was an abortion case. It just got um decided or
28:32
Speaker 1: or it was resolved because the Air Force changed its policy.
28:36
Speaker 1: So she could have been the one who argued the
28:37
Speaker 1: abortion case in front of the Supreme Court. Yeah, I'm
28:40
Speaker 1: really curious how that would have panned out. But the well,
28:42
Speaker 1: the way that she suggested it should have been done
28:45
Speaker 1: is rather um basing it on the right to privacy,
28:48
Speaker 1: it should have been based on the Equal Protection Clause
28:51
Speaker 1: of the fourteenth Amendment, because she her her logic was
28:54
Speaker 1: that by forcing women to be pregnant, the government is
28:58
Speaker 1: forcing a condition on women that men are not subject to,
29:02
Speaker 1: and that that is by definition, gender discrimination, which is
29:07
Speaker 1: uh protected against by the Equal Protection Clause. So that's
29:11
Speaker 1: in the Constitution. So what Ruth Bader Ginsburg was saying,
29:15
Speaker 1: if you had argued and decided row on the basis
29:18
Speaker 1: of the Equal Protection Clause, it would have been virtually
29:21
Speaker 1: ironclad from day one, and it wasn't. It was on
29:24
Speaker 1: shaky legal ground, and anybody who knew the law knew
29:27
Speaker 1: that it could be challenged. He just had to chip
29:29
Speaker 1: away a road at it, make all these different arguments,
29:32
Speaker 1: and sooner or later a changing court would start finding
29:35
Speaker 1: holes in it because they knew the law too. That's right, Uh, great,
29:40
Speaker 1: time for another break, I think, So let's come back,
29:42
Speaker 1: uh and talk a little bit more about Rob Wade. Yeah. Sure,
29:47
Speaker 1: that's a good idea. I was thinking we changed the
29:49
Speaker 1: Zeppelin's mid mid episode led Zeppelin. I would do that actually,
29:54
Speaker 1: all right, So, Chuck, I think you said, um that
30:21
Speaker 1: the Roe v. Wade was, um, just one of a
30:26
Speaker 1: number of cases that we're making its way to the
30:28
Speaker 1: Supreme Court. At that time around, I think there was
30:31
Speaker 1: something like eight teen cases. And the reason that America
30:35
Speaker 1: went from abortion laws starting in the nineteenth century to
30:38
Speaker 1: all of a sudden, a bunch of them being challenged
30:41
Speaker 1: from different states all at once, was because in the
30:44
Speaker 1: sixties there was so much social change, and one of
30:48
Speaker 1: the big changes is that women were getting out from
30:51
Speaker 1: under men's thumbs. They were going into the workplace, they
30:55
Speaker 1: were taking birth control pills, they were taking control of
30:58
Speaker 1: their lives in ways that they never had been before.
31:01
Speaker 1: But they saw very clearly, very early on and long
31:04
Speaker 1: before the sixties, that one of the major paths to
31:09
Speaker 1: self determination was their ability to choose whether to terminate
31:12
Speaker 1: a pregnancy or not. And that's why, all at once
31:15
Speaker 1: they were like at least eighteen cases coming to the
31:18
Speaker 1: Supreme Court that that UM sought to overturn abortion bands.
31:22
Speaker 1: That's right, Uh, And all of these cases sort of
31:24
Speaker 1: played into it. Some were actually joined to ROW, some
31:28
Speaker 1: were decided alongside Row. One of them was John and
31:32
Speaker 1: Mary Doe. They filed a complaint because uh the wife Mary.
31:39
Speaker 1: Of course, that probably wasn't her real name, right, I
31:43
Speaker 1: don't think that they would have been a heck of
31:44
Speaker 1: a coincidence. Well, I mean Mary. They couldn't use Jane
31:47
Speaker 1: anymore either, so oh yeah, I guess not. They went
31:50
Speaker 1: from Jane Doe to Jane Row to marry at Dough
31:54
Speaker 1: and maybe there would have been a Mary Row eventually,
31:55
Speaker 1: who knows. But she couldn't continue to take birth control
32:00
Speaker 1: role uh pills for health reasons, and so they argued
32:04
Speaker 1: that the government was infringing on their right to have
32:07
Speaker 1: sex as a married couple without getting pregnant. Basically, Um
32:11
Speaker 1: James Halford was a Texas doctor who was arrested for
32:14
Speaker 1: violating the Texas abortion band that was tagged on. And
32:18
Speaker 1: then we mentioned Doe versus Bolton earlier. This was a
32:22
Speaker 1: Georgia case which was really similar to Roe v. Wade.
32:26
Speaker 1: Georgia just had a bunch of kind of hoops you
32:28
Speaker 1: had to jump through to get a legal abortion, and
32:31
Speaker 1: they they decided that at the same time, and we
32:35
Speaker 1: could be talking about DOVEE. Bolton more. It just kind
32:38
Speaker 1: of went the other way and we talked Roe v.
32:40
Speaker 1: Wade more, but it was the same kind of deal
32:43
Speaker 1: equally as important. Yeah, the thing is I read that
32:46
Speaker 1: UM Bolton went further, like way further that the the
32:51
Speaker 1: case was. They were both published on the same day.
32:54
Speaker 1: But then in Dovie Bolton, the Supreme Court essentially said,
32:57
Speaker 1: like a woman should be able to get an abortion
33:00
Speaker 1: and for basically any reason she wants that they couldn't
33:03
Speaker 1: see any genuine reason why, um, the government should be
33:08
Speaker 1: able to tell a woman that she she couldn't terminate
33:11
Speaker 1: a pregnancy. That there just wasn't a good reason. And
33:14
Speaker 1: I guess that fact or that argument didn't come up
33:16
Speaker 1: in Roe v. Wade, but it did come up in
33:19
Speaker 1: Dovie Bolton, and you mentioned that it was a Georgia
33:22
Speaker 1: law and that there were some hoops that that basically
33:25
Speaker 1: um the um. The Jane Doe in that case was saying, um,
33:30
Speaker 1: like George is just putting up obstacles barriers just to
33:33
Speaker 1: keep me from getting an abortion. And there were a
33:36
Speaker 1: bunch Your doctor had to agree to it in the
33:38
Speaker 1: first place, they had to go consult with two different
33:41
Speaker 1: doctors who both had to agree that you should have
33:43
Speaker 1: the abortion. Then your doctor had to go get permission
33:48
Speaker 1: from a hospital review board where the abortion would be performed.
33:51
Speaker 1: If it was um. If it was because of rape,
33:54
Speaker 1: you had to produce proof of rape, proof of the
33:58
Speaker 1: rape to get an abortion. So you basically had to
34:00
Speaker 1: bring a note from the local police saying, yes, this
34:03
Speaker 1: woman was raped and became pregnant as a result of it.
34:06
Speaker 1: Like that's nuts in and of itself. And then also
34:09
Speaker 1: your family or even a court attorney could block it,
34:13
Speaker 1: could could petition to for you not to have the abortion,
34:16
Speaker 1: and it would come before a judge to hear whether
34:18
Speaker 1: it should proceed or not. I would say there's a
34:20
Speaker 1: lot of obstacles mixed up in there in that Georgia law,
34:23
Speaker 1: I would agree with you, um, And that was decided,
34:26
Speaker 1: like I said, alongside row and in the end, uh,
34:31
Speaker 1: well the end at the time at least, um, Supreme
34:35
Speaker 1: Court World seven two in favor of Jane Rowe uh January.
34:40
Speaker 1: Justice Blackman wrote the majority opinion did the same for
34:44
Speaker 1: Doe versus Bolton, also a seven two decision, and Byron
34:48
Speaker 1: White and William oh God, William Renquist, thank you very much. UM.
34:56
Speaker 1: They were the ones who did not join the majority
35:00
Speaker 1: in those cases. And you know again it was it
35:04
Speaker 1: was based on those ninth and fourteenth Amendments, and they
35:07
Speaker 1: basically said that an unwanted child can be a serious
35:10
Speaker 1: problem for both the physical and mental health of the
35:13
Speaker 1: mother uh and the family and even the child. And
35:16
Speaker 1: the government forcing families to take uh, to take this
35:20
Speaker 1: burden on violated the right to privacy. Um, you want
35:24
Speaker 1: to hit us with a little bit of the uh.
35:26
Speaker 1: The majority opinion. Yeah, they were saying, like, um, you
35:30
Speaker 1: you like it could be harmful to the woman's health,
35:33
Speaker 1: and you could diagnose that even early in pregnancy, So
35:35
Speaker 1: why should the government block that treatment from a doctor
35:38
Speaker 1: or Um, it might force the stressful life onto a woman. Um,
35:43
Speaker 1: she might suffer psychological harm by it, just from even
35:46
Speaker 1: raising a kid, especially a kid that is unwanted, which
35:50
Speaker 1: is going to have an impact on the child itself
35:52
Speaker 1: and how the child is raised. Um. They basically said,
35:56
Speaker 1: like there's an also, don't forget like the stigma of
35:58
Speaker 1: unwed mothers. Like, are we going to also force the
36:01
Speaker 1: woman to get married too because she's uh an unwed mother. No,
36:05
Speaker 1: we're not gonna do that, but there is a social stigma.
36:08
Speaker 1: They called out like a pretty decent handful of reasons
36:12
Speaker 1: why the government saying no, you cannot get abortions was
36:16
Speaker 1: unfair to women and unconstitutional as a result. And you
36:19
Speaker 1: know a lot of that has been um uh well
36:24
Speaker 1: basically proven in what's called the Turnaway Study, which for
36:28
Speaker 1: some reason I was calling the Takeaway Study. Uh. The
36:31
Speaker 1: Turnaway Study is um a longitudinal study that was performed. Uh.
36:37
Speaker 1: They basically took a thousand women from three different groups,
36:40
Speaker 1: women who sought an abortion up to three weeks over
36:44
Speaker 1: the limit who were called and we're denied. They're called turnaways, uh,
36:48
Speaker 1: which is where the study gets his name. Women who
36:50
Speaker 1: sought an abortion up to two weeks under the limit
36:54
Speaker 1: and did receive the abortion. And then women who received
36:57
Speaker 1: an abortion in the first trimester, and we'll talk about
37:00
Speaker 1: all the trimester stuff here in a bit too. But
37:03
Speaker 1: what the Turnaway Study found was a lot of things. UM.
37:08
Speaker 1: Women who were denied abortions were more likely to experience
37:12
Speaker 1: UH complications from the indo pregnancy UM, including death, more
37:17
Speaker 1: likely to stay tethered to abuse of partners very big one,
37:21
Speaker 1: less likely to have aspirational life plans for the coming year. UM.
37:26
Speaker 1: What else? UM, I mean, there's a lot of financial
37:29
Speaker 1: burden to being denied an abortion. UM was linked to
37:33
Speaker 1: a lower credit score, a higher amount of debt, and
37:37
Speaker 1: increasing the number of negative public financial records like bankruptcies
37:41
Speaker 1: and evictions just from being denied an abortion. And women
37:46
Speaker 1: reported that having the abortion was the right decision over
37:50
Speaker 1: a five year period after the procedure. That's a pretty
37:53
Speaker 1: key finding. Yeah, And that turn Away study has been
37:56
Speaker 1: like widely lauded as a gold standards buddy, because these
38:01
Speaker 1: researchers figured out how to create, um, you know, an
38:06
Speaker 1: experiment under natural conditions like the women involved in the
38:10
Speaker 1: experiment in the study, the only essentially the only thing
38:15
Speaker 1: that differentiated them was when if they had gone to
38:20
Speaker 1: the abortion clinic just before the cut off or just
38:23
Speaker 1: after the cut off. That was it like, there was
38:25
Speaker 1: a follow up Okay, so but those the first two groups,
38:30
Speaker 1: like that was the only difference. UM. There was a
38:32
Speaker 1: follow up study that looked at the methodology that they
38:35
Speaker 1: used and found that UM like analyzing the different participants
38:41
Speaker 1: credit scores showed that they were like. They virtually had
38:45
Speaker 1: the same credit scores. They were that similar economically education wise,
38:50
Speaker 1: UM and that when where they diverged was when they
38:54
Speaker 1: were either granted an abortion or turned away for an abortion.
38:57
Speaker 1: And the turned away for abortion groups life like started
39:00
Speaker 1: to go downhill. The UM the receiving an abortion UH
39:04
Speaker 1: groups UH suffered a slight dip in mental health that
39:08
Speaker 1: that recovered, they recovered from and then apparently over five years,
39:12
Speaker 1: the thing that they most frequently expressed as an emotion
39:17
Speaker 1: or thought about it was relief UM for having been
39:20
Speaker 1: able to to get the abortion that they'd wanted. So
39:23
Speaker 1: that's a turnaway study. Like I encourage people to go
39:25
Speaker 1: check this out and read more about it. UH. Back
39:29
Speaker 1: to Roe v. Wade, one of the crucial parts of
39:31
Speaker 1: the decision was this legal term strict scrutiny. Uh, And
39:37
Speaker 1: that means that if you have a uh, if it
39:39
Speaker 1: is a right that you're deciding upon this guaranteed by
39:41
Speaker 1: the Constitution, then any restrictions on any laws that you're
39:45
Speaker 1: gonna put down or put forth have to be narrowly tailored, uh,
39:50
Speaker 1: to only limit the right in that case where the
39:53
Speaker 1: government thinks like we should get involved here. So that's why,
39:56
Speaker 1: like the Second Amendment is in the Constitution that you
39:59
Speaker 1: have right to keep in bear arms. So any restrictions place,
40:03
Speaker 1: and this is why it's so hard to get anything
40:05
Speaker 1: passed any on gun legislation. Any restrictions on that is
40:10
Speaker 1: protected by the Second Amendment, so it has to be
40:13
Speaker 1: narrowly tailored to serve just that case. Yeah, because the
40:18
Speaker 1: the government has an inherent interest in protecting human life,
40:23
Speaker 1: but they also have to protect the Second Amendments guarantee
40:27
Speaker 1: to bear arms, right to have a gun, So they
40:29
Speaker 1: have to figure out through their laws how to say,
40:33
Speaker 1: like prevent mass shootings without infringing on people's right to
40:36
Speaker 1: have a gun. That's why this is so hard and
40:38
Speaker 1: so pernicious. Like you were saying, that's just gun rights.
40:41
Speaker 1: I mean the abortion issue makes gun rights seem like
40:44
Speaker 1: a walk in the park. Yeah, absolutely, because in in
40:48
Speaker 1: the case of Roe v. Wade, Scotis determined that laws
40:52
Speaker 1: restricting abortion had to be narrowly tailored um to that
40:56
Speaker 1: state's compelling interests to protect the health of the mother. Uh.
41:00
Speaker 1: And this is where we get back, kind of for
41:02
Speaker 1: full circle to that central mess. With this quote, some
41:06
Speaker 1: argue that the woman's right is absolute, that she is
41:08
Speaker 1: entitled to terminate her pregnancy at whatever time and whatever way,
41:11
Speaker 1: and for whatever reason she alone chooses. We uh sorry
41:15
Speaker 1: with this, we do not agree. Uh. And in that
41:18
Speaker 1: quote kind of sprang up this the central mess again,
41:22
Speaker 1: which is how do we define life and how do
41:25
Speaker 1: we define where life starts? Again there, everyone has their
41:30
Speaker 1: own opinions. Some people say, from the second two cells
41:34
Speaker 1: are joined together, then that's a potential human life. Uh.
41:38
Speaker 1: Other people say that is not the case. So they
41:41
Speaker 1: had to come up with what ended up being a
41:43
Speaker 1: pretty uh initially arbitrary system of deciding this. So they
41:48
Speaker 1: invented trimesters, which is, you know, months one through three,
41:53
Speaker 1: uh four through six, and uh seven, eight and nine
41:57
Speaker 1: during a pregnancy. And in terms of rov Wade, the
42:00
Speaker 1: first trimester you could get an abortion and that it
42:04
Speaker 1: was legal, and second trimester there were restrictions if your
42:08
Speaker 1: state wanted to have them. And in the third trimester, uh,
42:14
Speaker 1: you could ban an abortion outright if he wanted to
42:17
Speaker 1: in your state. And the quote here is that's the
42:20
Speaker 1: point where a fetus is quote presumably has the capability
42:25
Speaker 1: of meaningful life outside the mother's womb. And what I
42:28
Speaker 1: thought when I was hearing this was I'm surprised that
42:31
Speaker 1: hasn't been challenged, because that would be the stickiest of
42:34
Speaker 1: all cases if someone really wanted to to throw a
42:40
Speaker 1: wrench in this whole idea. Is for a woman to say,
42:45
Speaker 1: I've just entered my seventh month and I want to
42:47
Speaker 1: have a c section today because you're telling me that
42:51
Speaker 1: I have a viable, uh human being growing inside of
42:56
Speaker 1: me at this point, and if you don't agree with me,
42:59
Speaker 1: let's take it to court and let them decide. Huh.
43:03
Speaker 1: That person would be the most reviled person in America
43:07
Speaker 1: for trying that. But yeah, that would definitely be a
43:11
Speaker 1: messy test case for sure. But the problem with this
43:15
Speaker 1: trimester framework, like like we said earlier, with quickening, with
43:19
Speaker 1: the idea of viability outside of the womb, like science
43:22
Speaker 1: doesn't know. We just don't have that information right now,
43:26
Speaker 1: and so the the whole idea is kind of arbitrary
43:30
Speaker 1: because science is actually advanced by leaps and bounds and
43:33
Speaker 1: its ability to keep a baby alive way earlier than
43:37
Speaker 1: the first trimester than the third trimester, which led abortion
43:42
Speaker 1: anti abortion UM groups to say, well, wait a minute,
43:45
Speaker 1: if we can do that and it's before the third trimester,
43:48
Speaker 1: we should be banning abortion earlier than that, just the
43:52
Speaker 1: third trimester. And that led to a bunch of challenges
43:55
Speaker 1: UM against Roe v. Wade because again, like we said,
44:00
Speaker 1: it's widely considered to have been based on shaky legal foundation.
44:03
Speaker 1: So there have been challenges a plenty. But the thing
44:06
Speaker 1: is is, up to this point, the Supreme Court has
44:09
Speaker 1: always overruled those challenges to large decree or at the
44:13
Speaker 1: very least in every single case upheld Roe v. Wade. Uh,
44:18
Speaker 1: and it's it's ban on full bands on abortion, that's right,
44:23
Speaker 1: and UH Planned Parenthood versus Casey is a shining example
44:28
Speaker 1: of that. This was the case where the Supreme Court
44:33
Speaker 1: upheld UM almost all of the two Pennsylvania law that
44:38
Speaker 1: was kind of like the Georgia law in Dovie Bolton,
44:41
Speaker 1: where they had a series of obstacles. Um, I believe
44:44
Speaker 1: in this case it was spousal notice, parental consent for miners,
44:49
Speaker 1: and uh a twenty four hour waiting period. So in
44:53
Speaker 1: this case there was not It was decided on um plurality.
44:58
Speaker 1: I can't believe I can say that word. Um, there
45:01
Speaker 1: was no majority that agreed to one specific verdict in
45:04
Speaker 1: this case. That's a plurality. And nowlet's see there, I
45:06
Speaker 1: go jinx myself. Um, that's what that substantive plurality of
45:10
Speaker 1: ring quists. Oh my gosh. Um, So in this kind
45:14
Speaker 1: of case, you don't have like a majority opinion and
45:17
Speaker 1: the dissenting opinion. You have a bunch of opinions, or
45:20
Speaker 1: you know, several opinions that are written with different parts
45:23
Speaker 1: agreeing with different elements. Basically, yeah, and that's what happened.
45:27
Speaker 1: Apparently four of the judges wanted to overrule Roe v.
45:31
Speaker 1: Wad or overturn Roe v. Waight entirely in this case.
45:35
Speaker 1: Two wanted to uphold it entirely and just throw the
45:37
Speaker 1: Pennsylvania law out. And then three of them, Um, Sandra
45:42
Speaker 1: da O'Connor, David Suter and Anthony Kennedy. I think all
45:44
Speaker 1: of them were appointed by conservative presidents. Um basically took
45:49
Speaker 1: the middle ground and they said, you know, um, we're
45:52
Speaker 1: we're just gonna say, the only part of that Pennsylvania
45:54
Speaker 1: law that should be struck down his spousal uh notification,
45:58
Speaker 1: because that is an owners undue burden. Um. But we're
46:02
Speaker 1: gonna tinker with the law a little bit. And one
46:04
Speaker 1: of the things that they did they got rid of
46:06
Speaker 1: the trimester framework and they instead said, um, the viability
46:10
Speaker 1: of the fetus, as determined by a doctor should be
46:13
Speaker 1: when abortion restrictions can begin. So you take I means
46:18
Speaker 1: as unscientific as the trimester system was chuck, at the
46:22
Speaker 1: very least a provided objective guidance for women and abortion providers. Um.
46:28
Speaker 1: They threw that out with with Casey and replaced it
46:32
Speaker 1: with viability of a fetus right. And they also downgraded
46:36
Speaker 1: that strict scrutiny that we talked about, that standard that
46:39
Speaker 1: came along with row of undue burden. So, UM, a
46:44
Speaker 1: law could be unconstitutional if it placed a substantial quote
46:47
Speaker 1: substantial obstacle in the path of a woman seeking an
46:50
Speaker 1: abortion of a non viable fetus. Uh. End quote. And
46:55
Speaker 1: the long and short of what all of this did
46:58
Speaker 1: was it made it easier to put more restrictions on
47:01
Speaker 1: abortion without overturning a row. Yeah, because, um, the Supreme
47:06
Speaker 1: Court didn't say and here's what an undue burden is.
47:10
Speaker 1: They they didn't at all, which means that it's open
47:13
Speaker 1: to state legislatures to start passing more and more restrictive
47:16
Speaker 1: abortion laws to test where that boundary is. And then
47:20
Speaker 1: that's how we we got here. Casey opened the door
47:23
Speaker 1: for that to basically say, let's find out what is
47:27
Speaker 1: an undue burden. Let's see what you got state legislatures,
47:30
Speaker 1: and they started tripping over themselves to come up with
47:32
Speaker 1: the most restrictive abortion laws that they could um and
47:37
Speaker 1: and fin and get them into the Supreme Court in
47:39
Speaker 1: the hopes of eventually reaching a court that would say,
47:43
Speaker 1: you know what, let's just let's just forget about this
47:45
Speaker 1: whole thing. We don't think that Roe v. Wades should
47:47
Speaker 1: stand at all. And that's exactly what happened last week.
47:51
Speaker 1: Of course, it was leaked earlier in the year, but
47:54
Speaker 1: officially the Dobbs case was rendered last week. Uh Supreme
47:58
Speaker 1: Court overturned Roe v. Aid and said it's now up
48:02
Speaker 1: to the states. Many states that trigger laws and effect.
48:05
Speaker 1: Many more had laws that are soon to follow. And
48:08
Speaker 1: this is just the beginning of what is to come,
48:13
Speaker 1: which is a lot of uncertainty, including people like Mike
48:16
Speaker 1: Pence saying, uh, even though we have long said it
48:19
Speaker 1: should be states right, what I really think we should
48:22
Speaker 1: do is make a federal ban. UM. People on the
48:26
Speaker 1: pro choice sider obviously very upset uh for a lot
48:30
Speaker 1: of reasons, but namely because of a few specific things. Uh,
48:35
Speaker 1: first of which is Brett Kavanaugh. Justices Kavanaugh and Neil
48:40
Speaker 1: Gorcichu in particular led people to believe under oath during
48:44
Speaker 1: their confirmation hearings that this was settled law and quote
48:47
Speaker 1: precedent upon precedent. Um. People like Alexandria Occacio Cortez have said, Um,
48:54
Speaker 1: just in the last couple of days, like, hey, that's impeachable.
48:58
Speaker 1: They were under oath. But when you look at their quotes, Uh,
49:01
Speaker 1: they didn't say they would not overturn row. They use
49:04
Speaker 1: that very slippery confirmation language. Um, it's misleading under oath,
49:10
Speaker 1: but that is not going to end up being an
49:13
Speaker 1: impeachable offense. I have the quotes, but you can you
49:16
Speaker 1: can read them. There are all kinds of articles out there. Yeah,
49:19
Speaker 1: when you read them, you're like, Nope, they didn't And
49:21
Speaker 1: that was a huge failure on the UM Democratic senators
49:24
Speaker 1: who couldn't bring themselves to apparently ask them directly, would
49:28
Speaker 1: you overturn Roe v. Wade? They wouldn't answer, though. They
49:31
Speaker 1: asked Amy Coney Barrett, they asked Clarence Thomas, and they
49:34
Speaker 1: they literally didn't answer. So the other thing that is
49:40
Speaker 1: uh that pro choice, the pro choice that is pretty
49:44
Speaker 1: upset about is uh the idea that five of these
49:46
Speaker 1: justices were nominated by presidents who lost the popular vote. UM.
49:51
Speaker 1: So we're in a situation where five of the nine
49:53
Speaker 1: justices sitting on the Supreme Court were decided by a
49:57
Speaker 1: minority of Americans voting UM, and people like Elizabeth Warner
50:01
Speaker 1: calling for the end of the electoral college as a result. Man,
50:05
Speaker 1: wouldn't that be a gift? The third thing that is
50:10
Speaker 1: upsetting to the pro choice side or how two of
50:14
Speaker 1: these justices were confirmed with Mitch McConnell um not allowing
50:19
Speaker 1: the Obama nomination Merritt Garland to even go before committee
50:25
Speaker 1: because it was eight months before an election. In an
50:27
Speaker 1: electioneer whereas Amy Coney Barrett was confirmed in the thirty
50:32
Speaker 1: five days leading up to the election, the shortest gap
50:35
Speaker 1: between the confirmation and election in US history. And the
50:41
Speaker 1: third thing or is that the fourth thing four is
50:47
Speaker 1: that Uh, people like Elizabeth Warren are rightfully bringing up
50:51
Speaker 1: the notion that the Constitution was written in at a
50:56
Speaker 1: time when women not only had no vote, but they
50:59
Speaker 1: had no voice. And it was written entirely by men
51:04
Speaker 1: in the eighteenth and nineteen centuries. Uh, white men who Um,
51:11
Speaker 1: they believe that the Constitution is a living document. That
51:15
Speaker 1: and those things need to be taken into account. Like
51:17
Speaker 1: had women been able to have their hand in the Constitution,
51:20
Speaker 1: things might have been written differently, differently. And we're in
51:23
Speaker 1: a different world now where women do have a voice
51:26
Speaker 1: and they do have a vote. Um. But this is
51:29
Speaker 1: you know, this is a decades long victory for conservatives. Uh.
51:38
Speaker 1: That started long long ago, Uma far farmalaxy, far far away.
51:44
Speaker 1: Like you know when when Trump had his list, you know,
51:48
Speaker 1: he he doesn't come up with a list, He gets
51:50
Speaker 1: handed a list. Uh. And this list of justices, potential
51:54
Speaker 1: justices were hand picked by the Federalist Society, an organization
51:58
Speaker 1: of conservative lawyers run by or at least the list
52:02
Speaker 1: was basically tailored by men and Leonard Leo. And you know,
52:07
Speaker 1: I think there are people on the left that say
52:11
Speaker 1: these justices were hand picked because they absolutely knew that
52:15
Speaker 1: they would overturn Row and that was always a part
52:18
Speaker 1: of the plan, and that they were coached to be
52:22
Speaker 1: as vague as possible in the confirmation hearings too. What
52:27
Speaker 1: people on the left side would fool, people like uh,
52:29
Speaker 1: Susan Collins and uh and uh, what's his name? Mansion Mansion, Yeah,
52:35
Speaker 1: mansion qui. So, uh, that's what has really upset people
52:42
Speaker 1: on the pro choice side, those specific things, and that
52:45
Speaker 1: just that has nothing even to do with the the
52:48
Speaker 1: ethics and morals of abortion even well. Plus also there's
52:51
Speaker 1: there's some other things that people are really really concerned about.
52:54
Speaker 1: One is that the Supreme Court just basically said that
52:58
Speaker 1: Roe v. Wade was based on that right privacy, which
53:01
Speaker 1: is a they decided was um a legal fiction created
53:04
Speaker 1: by activist justices back in the sixties, UM, and that
53:08
Speaker 1: they overturned that. And since um not just Roe v. Wade,
53:12
Speaker 1: but also gay marriage, the ability for a married couple
53:16
Speaker 1: to access birth control, UM, gay sex a whole bunch
53:20
Speaker 1: of different privacy issues are based on that same legal fiction.
53:25
Speaker 1: Then all those things are up for grabs too. So
53:27
Speaker 1: a lot of people are worried that this Supreme Court
53:30
Speaker 1: will overturn gay marriage and all of a sudden, your
53:34
Speaker 1: marriage will be null and void if you're a gay,
53:36
Speaker 1: if if you're a gay couple who was married in
53:38
Speaker 1: the United States, that's incredibly scary as well. Piled on
53:42
Speaker 1: top of you know, the um a ban on abortion
53:46
Speaker 1: essentially is what what's happening now or at least in
53:49
Speaker 1: some states. And then, like you said, Mike Pence was
53:52
Speaker 1: calling for a federal band and uh, that's another thing
53:55
Speaker 1: that are making people on the pro choice side really
53:58
Speaker 1: worried that essential personhood will be granted to fetuses. That
54:04
Speaker 1: some state somewhere, I would guess probably in the Midwest
54:08
Speaker 1: or the South, would come up with an abortion ban
54:11
Speaker 1: or even a resolution that they adopt as a law
54:14
Speaker 1: that says life begins at conception in the state of Oklahoma, right,
54:19
Speaker 1: and that somebody would sue them and it would go
54:21
Speaker 1: to the Supreme Court, and the Supreme Court would say,
54:24
Speaker 1: you know what, Oklahoma's right, Fetuses are people and they
54:28
Speaker 1: deserve all the constitutional protections under the law, if so
54:32
Speaker 1: facto you could not abort any fetus anywhere at any time.
54:37
Speaker 1: There is now a federal ban on abortion entirely. That's
54:41
Speaker 1: something that's scaring um uh, proponents of choice as well. Yeah,
54:46
Speaker 1: and you know just the kind of worms that's been
54:48
Speaker 1: opened up now as far as enforcement and are you
54:51
Speaker 1: going to send police after people? Are you going to
54:53
Speaker 1: send police across state lines if people are able to
54:56
Speaker 1: get the funds to travel across state lines to a
54:59
Speaker 1: state still allows abortion. Uh, it's just the beginning of
55:06
Speaker 1: of a lot of uncertainty for a lot of people. Well. Plus, also,
55:10
Speaker 1: if you are pro life or your anti abortion, and
55:15
Speaker 1: you have um a problem with the with the the
55:17
Speaker 1: decision of Row and say that it was judicial activism,
55:21
Speaker 1: you have to admit that what just happened in Dobbs
55:24
Speaker 1: was judicial activism. It just went the opposite way. And
55:27
Speaker 1: there's a lesson in there. Judicial activism is bad on
55:31
Speaker 1: either way. We're supposed to leave it to Congress to
55:34
Speaker 1: create laws that say this is the law, not the
55:38
Speaker 1: Supreme Court to come up with laws on its own
55:41
Speaker 1: and then overturn those same very controversial laws. Fifty years later,
55:45
Speaker 1: that's not what's supposed to happen. It completely erodes any
55:48
Speaker 1: trust in the Supreme Court and its ability to be
55:50
Speaker 1: like the final arbiters of what's right and what's wrong
55:54
Speaker 1: in the United States. And that's what's going on right now.
55:57
Speaker 1: But you know, that's that's just because the shoe is
56:00
Speaker 1: and the other foot to the other foot. There were
56:02
Speaker 1: plenty of people who lived from nineteen seventy three onward
56:05
Speaker 1: with that same view of that Supreme Court and are
56:07
Speaker 1: perfectly happy with this Supreme Court. And that's the that's
56:10
Speaker 1: the big problem, not just with this issue, but with America.
56:13
Speaker 1: I feel like today is it's just all tipped for tat.
56:16
Speaker 1: You know, yeah, maybe there should never be lifetime appointments. Oh,
56:23
Speaker 1: definitely not. That's definitely not. That is I mean, if
56:26
Speaker 1: there's one thing that's just a no brainer as far
56:29
Speaker 1: as American law is concerned, lifetime appointments to the panel
56:36
Speaker 1: that decides ultimately what's law and what's not in the
56:40
Speaker 1: United States is just a bad idea. Yeah, let's have
56:43
Speaker 1: term limits to pour at it. It's too much power.
56:45
Speaker 1: Man's people are supposed to have that much power for
56:49
Speaker 1: that long. It creates a really screwed up system. Yeah,
56:53
Speaker 1: it definitely does, all right, since I said screwed up system,
56:57
Speaker 1: wait a minute, Wait a minute, that's my part. I'm
57:00
Speaker 1: always want to say it though. Anyway, since Chuck's had
57:02
Speaker 1: screwed up system, it's time for listener mail chime. I'm
57:11
Speaker 1: gonna end this on a lighter note. Uh, that might
57:14
Speaker 1: bring a smile to people's faces. Hey guys, a few
57:17
Speaker 1: years ago, on one of your numerous and wonderful tangents,
57:20
Speaker 1: used the phrase don't yuck someone's yum. I love how
57:23
Speaker 1: simple this was and summed up in ethos of being
57:25
Speaker 1: kind of people no matter their beliefs and opinions. Fast
57:28
Speaker 1: forward and now, and I've used this simple saying when
57:31
Speaker 1: bringing up my two daughters, who have just turned five
57:33
Speaker 1: and three, as a way of teaching them manners and kindness.
57:37
Speaker 1: Yesterday I had a message from my three year old
57:39
Speaker 1: childminder saying that my daughter had told another child not
57:43
Speaker 1: to yuck someone's young and how great that was. She
57:46
Speaker 1: liked it so much, she's going to make it a
57:48
Speaker 1: saying that she used when teaching the children that she
57:50
Speaker 1: looks after going forward. Uh. It was then passed on
57:54
Speaker 1: to the parents of the other kids who all reported
57:57
Speaker 1: back that they would also be using it in passing
58:00
Speaker 1: on nice Uh. And by the way, Matt, we didn't
58:02
Speaker 1: invent that. I believe that could from a listener, right, yep, definitely,
58:06
Speaker 1: So hats off to the anonymous listener who that's right. Uh.
58:09
Speaker 1: Some people might wish you stay on topic for but
58:13
Speaker 1: I'm here to tell you that even you're off the cuff,
58:15
Speaker 1: comments can educate others, and you can be safe in
58:18
Speaker 1: the knowledge that you've helped in still good manners and
58:20
Speaker 1: a growing number of children in Berkshire, England. Oh wow,
58:25
Speaker 1: I wasn't expecting that Barkshire even give me a pronunciation.
58:29
Speaker 1: Keep night, so you said sheer right, sheer, Like I
58:32
Speaker 1: said Burke, not bark Barkshire. So it's Barkshire, but it's
58:36
Speaker 1: spelled Berkshire. Okay, you get my drift. Yeah. Yeah, that's
58:41
Speaker 1: why I'm gonna start calling up state in New York. Now,
58:43
Speaker 1: barks here, let's go weekend in the bark shears there,
58:46
Speaker 1: let's do it. Uh. That's from Matt Walford. Thank you, Matt.
58:51
Speaker 1: That was very kind of you to let us know
58:53
Speaker 1: we're glad that we're enacting really positive change. In your
58:56
Speaker 1: kids schools and uh that was kind, so thanks. Uh
59:00
Speaker 1: keep it up. If you want to be like Matt
59:02
Speaker 1: and get in touch with us and tell us something
59:04
Speaker 1: kind that we helped to you. We love to hear
59:06
Speaker 1: that stuff. You can send us an email to stuff
59:09
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59:16
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