Biola UniversityRoe vs. Wade (1973) was one of the most consequential Supreme Court rulings in America history, allowing abortion in all 50 states. It appears that the Supreme Court is overturning this case. A rough draft of the ruling was recently leaked to the public. In this discussion, which was recorded live on Sean's YouTube channel, Scott and Sean discuss the implications of the ruling and analyze the reasoning behind it.
Episode Transcript
Sean: Is Roe versus Wade being overturned? What would this mean for abortion rights? What would it mean for the pro-life movement? What was the reasoning behind the decision that was leaked? Today, Dr. Scott Rae and I, and Scott Rae is a colleague of mine at Biola University, Talbot school of theology, co-host of the Think Biblically podcast, one of the leading Christian ethicists. Today, we're going to discuss some implications of the leaked first draft majority opinion by Justice Alito. And if we have time, take some questions at the end. Scott, I'm really curious, your initial take when you heard about this ruling, what you thought and how you responded?
Scott: My first take was who leaked it and why.
Sean: Okay.
Scott: And I think that's the stuff that everybody wants to know about, but I don't think we will. And there have been speculation that folks on one side or another who leaked it, I think there's probably a little more rationale for one side than the other. But I think the second thing is that the response to Alito's draft, I think shouldn't have surprised anybody if you were paying attention. Because this has been hinted at for some time that we knew this might be where it was going after oral arguments. And both sides have been preparing for this for a long time. So anybody who paid attention, who claims to have been surprised by this, is being disingenuous. And I think some of the politicians who just, you know, they thought the world's ending here, they should have been the least surprised by anybody. So I think as far as it goes for the unborn, I don't think much is going to change as a result of the overturning. Because all the rescission will do is turn it back to the states. And, you know, roughly 25 or so states have indicated that they're going to put significant restrictions on abortion. But the other 25 will probably have something like what California has already said they're going to do and become a sanctuary state for abortion. So it's definitely not the end of abortion rights. It is a good day for the unborn because it will be more difficult in half the states to get abortions.
Sean: Okay. I'm with you that I wasn't shocked in one sense by the ruling, but to see it in print and the words of a ruling, it was pretty jarring and mildly brought a tear to my eyes in the sense that we have made progress in the pro-life movement. And you're right, it puts it back to the states. But in those 25 states, just as we've seen in Texas and Mississippi since these rulings, a significant drop in abortion is going to result in lives being saved. But how many of course remains to be seen?
Scott: That's hard to say. I actually think one of the, maybe one of the unintended side effects of this will be actually to reduce the polarization in the culture. Because instead of having one overriding federal law that shoved down everybody's throat in everybody's state, you've got different states are able to make their rules according to what the consensus of their population is. And so I think you'll see a pretty deep swath of the South and the Midwest that will restrict it pretty significantly. But on the coasts, Illinois, other parts that are more typical liberal democratic states, I think you'll find that abortion rights will be protected. So there will be places to go for anybody who has their own particular view on abortion.
Sean: It's an interesting idea that the rhetoric may tone down or the division may tone down because in this ruling that Alito released, he said that people called Roe and then Planned Parenthood versus Casey in 1992, said this is the final debate. It's over and they wanted to lower the temperature. If anything, it went up and got worse. And Alito says, and here he goes, “We don't have any guess where this is going to go with a rhetoric,” like that's not what they're responsible for division. My thoughts are it was going to go up, but you're making me rethink that actually now people have a voice because a voice in the sense of what they say in this ruling is now go make your case, go present to the public. This is not being decided from the top down. Go work through the legal system and go persuade people of your position. It seems as pro lifers, we would actually invite that.
Scott: You know what a what a concept that people would be persuading one another instead of shoving it down our throats. That's like I think that's a good change. And I think that I am both well for the pro life argument, although I think I think most most states, I think, have already made up their minds depending on where the decision goes. They'll go forward in a certain direction. But I think I think the idea that, you know, nobody nobody shoving some something down everybody's throat in every state by state is a good thing. And so we'll we will see how the debate goes. You know, who knows? I think if you read the art tutorials in the Los Angeles Times this morning, you would have thought that there's violence in the streets that's going to be happening tomorrow. That's, I think, way overheated rhetoric. And I think you'll see both sides out being public. Hopefully we'll see some of those public demonstrations that actually have reasons instead of just stating the position and calling the other side names. That's not healthy. But if you have a legislative debate, that's a good thing. And I think that bodes well for the for the unborn. The court will essentially I think essentially what they will do is the same thing that they did with the assistant suicide decision 20 something five years ago, because they refused. They refused to say that the state of Washington in that decision could not prohibit. They said they could allow it. They could prohibit it. But they said, we are not making a decision. We're leaving that to the states to decide. And the states have done that. Not every state has passed laws on assisted suicide, but a lot of them have. And we don't see acrimony about assisted suicide like we are being led to believe that we'll see about abortion here.
Sean: I think it might be helpful if we clarify exactly what Roe did, what Casey did, and what this case called Dobbs versus Jackson Women's Health Organization, which is in Mississippi, a gestational age act does. So just very briefly, what did Roe do in America in 1973?
Scott: Roe allowed abortion up until the point of viability, which was at the 1973 was at the end of the second trimester. First thing they divided in three trimesters only because nine's divisible by three. That's the only reason. And one of the striking things that has come out of this is the admission by Justice Blackmon, who wrote the majority decision in 1973, that those divisions were completely arbitrary. So what Roe versus Wade did, I'm going to read here. This is in the ruling from SCOTUS. It says, "For the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the view of its citizens. Then in 1973, the court decided Roe versus Wade, even though the Constitution makes no mention of abortion, the court held that it confers a broad right to obtain one." And as Scott said, that would be after viability. Now, here's a very interesting thing. I'm going to read some stuff from the ruling that I think might be helpful. It said, "It imposed the same highly restrictive regime on the entire nation and it effectively struck down the abortion laws of every single state." Justice Brian White put it in his dissent, "The decision represented the exercise of raw judicial power." That was 1973. Now, very quickly, what Casey did in 1992 was, here's a quote, again, this is from the opinion that has leaked. It said, "Casey threw out Roe's trimester scheme that Scott was referring to and substituted a new rule of uncertain origin under which states were forbidden to adopt any regulation that opposed an undue burden on a woman's right to have an abortion." So they forwarded the argument for Roe versus Wade, but in a sense just shifted it from viability to undue burden. Now, the Mississippi law, which is at the heart of what the Supreme Court is considering right now, does this. It says, again, I'm reading the leaked opinion of the court written by Alito. It says, "The state of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the 15th week of pregnancy.” So what this new law does that looks like is being upheld by the Supreme Court is it pulls back from Roe clearly viability and says at the 15th week a state can restrict abortion. Now, keep in mind, the majority of abortions are before this time. 15 weeks is about three and a half months, but what this does is by upholding this law, it gives precedent for the states to not follow Roe, to not follow Casey, and to go back to a federalist kind of case and make their own. That's what is at stake. Now, what has the court ruled? I would encourage all of you if you have a chance. The ruling is online. It's a rough draft in the sense that it might be edited for grammatical changes, but it seems to be pretty close to being final. And here's what they wrote on page five. I mean, it's jarring. It said, this is the majority. It seems like it was a five justice majority. It says, "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision." This is a strong denunciation of Roe. Now, with that said, here's what we're going to walk through some of the case and then I'll address some of the practicals of this and take some questions. But at the heart, this ruling says it very, very clearly. It says, oops, wrong page. Let me flip this over. It says, let me double check this page eight. OK, here it is. It says, "We begin by considering the critical question whether the Constitution properly understood confers a right to obtain an abortion." That's the heart of the question that they're challenging. Now, to do so, let me bring Scott back in and we'll see if this works. All right, Scott, we got you. We're moving along. Sorry about that. No problem at all. Let's keep rolling. We are just jumping into the case itself. And I read that the key question is what whether or not the Constitution confers right to abortion. And in this ruling, three things were considered, three steps. And let's take these kind of one in turn. So three questions of whether or not it's constitutional that this ruling addresses. And the first one is, is the right to abortion in the Constitution? Now, I'm going to read some stuff from the ruling, but tell us, give us your thoughts.
Scott: No, it's pretty simple. You can look high and low all the way around. I think it's important to recognize that what the Constitution did, it was not create rights. It recognized them. It recognized God-given fundamental rights that had been a part of common law and natural law and recognized widely as such. And they're nowhere. Even even in 1972, 46 of the 50 states had lost prohibiting abortion, hardly a moral consensus that was about to be recognized. And the same was held by the system of suicide, that there's no longstanding tradition of a right to die and no reason for the court to recognize it.
Sean: So that's great. What's really clear on page nine in this ruling is it says that the Constitution makes no express reference to a right to obtain an abortion. And therefore, those who claim that it protects such a right must show that the text is somehow implicit in the constitutional text. Now they walk through how there's at least five different constitutional provisions. First, fourth, fifth, ninth and fourteenth amendments that people have tried to make this case and they all fail. And here's what's really interesting that's written here. Alito says “the message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” That's a pretty damning thing. Let me read one more line that I want you to jump in here. At the very end, they said this. “We must ask whether the 14th Amendment means what it means by the term liberty. When we gauge that inquiry in the present, the clear answer is that the 14th Amendment does not protect the right to an abortion.” And then they move on to the second question. So it's not in the Constitution. And it seems to me, Scott, that people have known this about Roe for a long time and many pro-choice people have conceded this.
Scott: Yeah. And some of the most interesting concessions came right after Roe v. Wade was passed by Ruth Bader Ginsburg, for example, who decried that it was wrongly decided. And she was actually very concerned that the court overreached and would interrupt legislative momentum that she saw happening in a number of states. And there are others who suggest that there's just no place to find it. The right to privacy is some sort of broad umbrella thing that nobody can really tell us where that's found in the Constitution either.
Sean: Exactly.
Scott: And I think it's just a huge stretch to think that the founding fathers gave their lives so that women could kill their offspring. That's a big stretch. And that's why it's nowhere in the Constitution.
Sean: Well, this is the first point. And again, the ruling, the opinion goes into more depth, critiquing efforts to justify that abortion is a Constitution. And Alito and the majority do not mince words saying “it's not in there.” Now, the second question that the ruling looks at is, “is the right to abortion rooted in our nation's history?” And here's what they say. A few things I want you to weigh in this. They say until the latter part of the 20th century, there was no support in American law for a Constitution right to obtain an abortion. Zero, none. The earliest a Constitution right to abortion that has come to our attention was published only a few years before Roe. And then they make one more point. They say “not only was there no support for a constitutional right until shortly before Roe, abortion had long been a crime in every single state.” Your thoughts?
Scott: Yeah, I mean, that's there's a clear moral consensus in the opposite direction. And so if under a view of the Constitution that it's we interpret it according to the original intent as opposed to it giving this living, breathing document that's malleable, you know, to really do whatever we want to do with it. And if under that under that assumption, then there's no there's no basis for saying that this is a right that the court needed to finally formalize and recognize. And that's really what the court should be doing if they recognize rights that are incipient in the Constitution, but just haven't been recognized so far. And the courts made some egregious errors in the past. I mean, thank God that the court decision that allowed the interment of Japanese during World War Two was overturned. You know, thank God that separate but equal in plus, Evie Ferguson was overturned. You know, so the court, of course, not infallible. And I think that Roe v. Wade is one of those decisions that is best overturned and the matters left to the states for rational debate.
Sean: Let me read a few of the lines here that they make in this just to emphasize the point. So in asking the second question of this ruling, “is the right to abortion rooted in our nation's history?” They actually go back to English common law and say all the way back to the 13th century, the trees, the statement is that abortion was a crime. They say in some, although common law authorities differed on the severity of punishment for abortions committed at different points of pregnancy, none endorsed the practice. And then they write a couple of things here. They say now one original grounding that justified was quickening, which is when the mother experienced the first kick and presence. That's when they would allow presumably abortion up until that point in certain circumstances. And some of that was the inability of their science to know whether the unborn was really alive or not. But the point was when it's actually alive, abortion is is not permissible. They were just mistaken about when it was alive. But even that point is relevant because it says in 1803, the British parliament made abortion a crime at all stages of pregnancy and authorized imposition of severe punishments. And then they shift to our country and say in this country during the 19th century, the vast majority of the states in active statutes criminalized abortion at all stages of pregnancy. Of the nine states that had not yet criminalized abortion at all stages, all but one did so by 1910. And then by the end of the 1950s, according to the Roe court's own count, statutes in all but four states and D.C. prohibited abortion. And then they conclude this overwhelming consensus endured until the day Roe was decided. So here's their conclusion. And the language, Scott, you and I know as academics were supposed to be calm about things. They say the inescapable conclusion is that right to abortion is not deeply rooted in the nation's history and traditions. I'd say Alito got kind of fired up at this point. He did. And because I think we recognize is that what the court did in 73 was not was not to recognize the consensus that was already there, but it created one.
Sean: That's right. That’s right.
Scott: And what it shows is the educational power of Supreme Court decisions that that even if doesn't change the law in any state, but the law will do will provide this kind of educational impetus for people to rethink whether abortion rights are really the order of the day. So that I think that I think that's huge value just I mean, even if nothing changes on the ground, that's significant value educationally for the lives of the average person and how they think about abortion.
Sean: So the third question that they consider is this one. It says is the right to abortion is it supported by other precedents? So Alito walks through and says the abortion, the right so-called right to it is not in the Constitution. It's not rooted in our nation's history. Third, is it supported by other precedents? And he says, for example, here's one of the first one he cites in his response to this is simple but profound. He says he quotes Casey, who elaborates on at the heart of liberty is the right to define one's own concept of existence of meaning of the universe and of the mystery of human life. And here's his response. This is Alito again, the majority. “While individuals are certainly free to think and to say what they wish about existence, meaning in the universe, they are not always free to act in accordance with those thoughts.”
Scott: That’s correct.
Sean: And then on the next page, Alito says, “I think pretty clearly, he says those criteria at a high level generality could license fundamental rights to use illicit drugs, prostitution and the like.” So it seems to me he just decimates the heart of Casey in honestly, like I don't want to overstate it, but I feel like a freshman in college, maybe in high school could see through some of that meaning.
Scott: Well, I think what they did is what Alito is doing is what the court did in the decision on assisted suicide and the contrast between Roe and the decision on Glocksburg, the decision on assisted suicide couldn't be more striking. And what they what they recognized is that there's no there's no fundamental right to die. There's nothing in the Constitution that protects that. And therefore, the court was under obligation not to create ex nihilo, a right to die. And that's precisely what the court did in Roe. And I think it emerged out of a different judicial philosophy where the original intent of the authors of the Constitution carried less weight than it does with this particular court. And I think that's that fundamental difference between those two courts is a hermeneutical one and how they view the interpretation of the Constitution.
Sean: I'm going to bring in a comment here and I'm going to give my two cents and then you can give yours Scott and then we're going to go back to the ruling.
Scott: I thought you've been giving your two cents all the way through this.
Sean: I have been because you were late Scott. That's why I get to take over here. I’m just kidding. Sean Cook says “I want to so badly follow you Sean because I appreciate your nuance. But even just putting quotation marks around rights tells me your nuance has left the building. I can't support this.” So the title of this got to give clarity, as I said, some of the effect of our abortion rights being undone. Sean, first off, thanks for wanting nuance. Thanks for following the channel. I actually thought a lot about that. And the reason I put it in quotes is because that's exactly what is at stake here. Do we have rights or do we not have rights and abortion rights? Is it a right to take the life of the unborn? That is actually what this ruling is putting back to the states for us to debate. So if I didn't put it in quotation marks, I would actually be assuming ahead of time a certain position that there is such a thing as rights. And that hasn't been established. So I understand that that language might be off putting. I do try to be nuanced. I hope you and others will stay with me. I really try to be fair and respect other opinions. But that's actually why I do it, because now we need to have that debate. Casey and Roe versus Wade skipped that debate and shoved down the throats of all 50 states bad reasoning about the unborn. Now we can actually have this debate. I'm going to keep rolling, but you want to weigh in here on anything, Scott, or I'm going to keep going.
Scott: I think that's entirely appropriate to point out that the rights question is at the heart of this. And so to not have quotation marks around abortion rights, I think is an assumption that is up for grabs now. And I think in the right of pro-life versus has always been up for grabs. But now I think is going to be more culture wide. And that that's a hugely good thing. And I hope we put that out on the table and put the best arguments out on the table, because I think I think the pro-life stand, the pro-life argument can withstand the best of it. And I think that's one of the reasons why the decisions have skirted the question of rights in the past.
Sean: You know, it's interesting if I didn't put in quotes, it would assume there's such a thing as abortion rights, which would be to take a particular position. If you put it in quotation marks, then it's saying there could be right. There could not be right. It's actually a more neutral position to take and says, let's debate it. Let's keep going.
Scott: It's more is more nuanced, actually.
Sean: I think so. So, Sean, I hope you'll hang with me. Thank you for appreciating that. I tried to be nuanced, even if we differ it sometimes. Now, a big issue that came up and then we're going to get to five reasons why the court says in this leaked document. Again, it's not final. I guess potentially things could change. But as far as we know, this leaked document, I want to qualify it with that is stare decisis, which essentially is respect for earlier precedent in the law. There's probably more technical term to say it. But here's what the court says, Scott, and then I want I want you to weigh in. He writes, he says, we've long recognized that stare decisis is not an inexorable command. It has been said that it is sometimes more important than an issue be settled than it be settled right. When it comes to the interpretation of Constitution, the great charter of our liberties, which was meant to endure through a long lapse of ages, we place a high value on having the matter settled right, not just settled. And then he goes into three examples of constitutional decisions that have been overruled by prior precedent. I won't read all of them, but very quickly. Brown versus Board of Education repudiating separate but equal in Plessy versus Ferguson, which was a disastrous 1896 ruling. And then here's his conclusion. Scott, I thought it's so interesting. It says on many other occasions, the court has overruled important constitutional decisions without these decisions. American constitutional law, as we know it, would be unrecognizable. And this would be a different country.
Scott: The precedent, you know, the precedent matters because the court, you know, at least operates on the presumption that they think things through carefully and they make reason decisions. They have months and months to consider them. They read all of the amicus briefs that everybody weighs in. But the court's not infallible. And I think that's what Alito is suggesting here. These are fallible. You know, they're very qualified, but fallible justices. They make mistakes. And we shouldn't I guess we shouldn't be real surprised when decisions are overruled, especially ones that are so erroneous. And especially in in this case where you have such a clear contrast at the end of life and assisted suicide for how it should have been done. And the number of people who said when that came out in ninety seven that this is exactly how the court should have handled Roe v. Wade I think were absolutely right. And that that contrast was not lost on a lot of legal scholars and legal opinions.
Sean: Let's work through kind of the five factors that are stated in this opinion of why they say five factors weigh strongly in favor of overruling Roe v. Wade. Let's kind of briefly move through these. But one is the nature of the court's error. And the briefing says Roe was also egregiously wrong and deeply damaging for reasons explained. Roe was on a collision course with the Constitution from the day it was decided and Casey perpetuated its errors. Now, we've talked about that, but that's one reason why these five judges at least are saying we should overrule Roe v. Wade. Now, number two, and this is where I jump in. It says it says number two, “the quality of the reasoning, it stood on exceptionally weak grounds.” And then here's a couple of points that are made made. Scott, let me jump ahead to page 46. I'm reading directly from the opinion itself. One of the concerns was it said “Roe did not provide any cogent justification for the lines it drew. For example, does the state have no authority to regulate first trimester abortions for the purpose of protecting a woman's health? If as Roe held a state's interest in protecting prenatal life is compelling after viability, why is it that interest compelling before viability?” It asks. So that's one of the questions that asked about viability. Then here's one, Scott, this one blew me away. It says “some have argued that a fetus should not be entitled to legal protection until it acquires the characteristics they regard as defining what it means to be a person.” Among the characteristics that have been offered, sentience, self-awareness, ability to reason, etc. But here's what it says. Then I want you to jump in. It says “by this logic, it would be an open question whether even born individuals, including young children, those afflicted with certain development or medical conditions merit protections as persons.” This sounds like the kind of argument you and I have been making for decades and other apologists.
Scott: Well, and people who are favoring infanticide today are making exactly the same point. But the birth is just a change of location. There's no ontological difference. And there's no there's no point between conception and birth that makes any metaphysical or sort of fundamental difference in what kind of a thing the unborn child actually is. And so there's no there's no actually no good reason on Roe’s reasoning why infanticide shouldn't also be allowed. And that's why early on Peter Singer and others who made the case for infanticide and did so on the basis of Roe were absolutely right about that. There's nothing to stop that. Here's the other thing. It doesn't stop. It doesn't stop persons who are under anesthesia from being persons because they don't lack any of those qualities when they're under general anesthesia. I think some people who are even in a deep sleep, they don't have those capacities. And what we have to recognize is that even though those capacities are for somebody under anesthesia are just lost temporarily, the unborn child also doesn't have them temporarily. But they will. See, from the point of conception, the unborn child has all the capacities he or she needs to be a fully human person. They are a fully human person, but with lots of unactualized capacities. But from the very start, they have all those capacities resident and they mature at stages that are appropriate to the way a unborn child matures. I don't like it when we use the terms develops or becomes. They mature into what they already are.
Sean: An unborn becomes an adult, but it is a human person from conception.
Scott: I would even say an unborn matures into an adult. This is not metamorphosis here.
Sean: You've always got to correct me. Gosh. That's why your philosopher being careful. But what strikes me is I would invite anybody to get row printed out, print out Casey and print out this ruling and just look at the reasoning itself. This is Phil softly, historically, legally. Just there's no they're not begging the question. They're making a forceful argument here, unlike the previous rulings. Now, one other quick one I want you to weigh in on is they say viability was the state originally under row when a child could survive outside the womb. Then abortion was restricted, except maybe for some more extreme scenarios in principle. But what this ruling does is it critiques us. It says, wait a minute, due to the development of new equipment and improved practices, the viability line has changed over years. It says, according to Roe’s logic, states have a now have a compelling interest in protecting fetus with a gestational age of, say, 26 weeks. But in 1973 did not have an interest in protecting that identical fetus. Then it says, how can you know viability depends on the quality of available medical facilities and the location of the mom. So the bottom line in this ruling is it's taking so many of the reasons that have been given, justifying pro choice and logically, I think going after them pretty firm. So the basis of this is sound.
Scott: In other words, viability has nothing to do with the right of an abortion.
Sean: Exactly. Well Said.
Scott: There's nothing to do with what a human person actually is. And viability today is it 22, 23 weeks. It differs for different unborn children, newly born children. And it also depends on the it's more a statement on medical technology…
Sean: Exactly.
Scott: …and where it has brought us. And it really has it's just as it's incidental to the point. And I think people should recognize that today, when a child is born this close to viability, you know, it's not like they can go home with mom at the end of the day. They go from a natural life support system to a full artificial life support system and they stay on it for months usually. So even the notion that after viability, quote, after quote, “viability,” pardon the nuance here, you know, that a baby can really survive outside the womb is a little bit misleading because without really sophisticated neonatal ICU technology, they would die shortly. So they're just they're they've changed one life support system for another.
Sean: Exactly.
Scott: For months.
Sean: Now, there's there's three other factors, though. The last two we can work through quickly of why the majority is saying strongly Roe versus Wade case you should be overturned. And the third one they say is workability. Another important consideration deciding whether precedent should be overruled is whether it imposes the rule it imposes is workable. Is it is it workable practically in law? And they say the very idea of undue burden is just standardless. What does that mean? They say terms like undue burden, substantial obstacle, unnecessary health regulations. Casey offers no boundaries how to answer those. And as a result, we've had all these rulings where they say we disagreed about bans on certain kinds of abortion procedures, discrete about when an increase in the time is needed for a clinic constitutes an undue burden, discrete on whether state may regulate abortions performed because the fetus is rates, sex or disability. In other words, the third reason they say Casey and Roe need to get overturned is because it's not practically workable and doesn't help in terms of the way we can adjudicate law by any standard. It's just too vague.
Scott: Well, neither did Dovi Bolton give us guidelines on what constitutes psychological harm to the woman and harm to her familial health. What that really means is that she's got too many children that she can logically care for. It doesn't give any guidance on what it means that the woman's even with the one physical health is jeopardized because that it could mean I mean, it could mean just that she would have difficulty conceiving children in the future. And that would constitute some threat to her physical health. It was not that just that her physical life was threatened. But once you bring in her health that opened the door. I mean, that's a loophole you could drive a truck through. And in reality, that's why we say that abortion has been illegal through all all nine months of pregnancy from the very start. And that's still true today.
Sean: The last two points I'm going to say really briefly so people understand it says the effects on our areas of laws and what they argue in, again, the leaked majority opinion is around Casey have led to the distortion of many important but unrelated legal doctrines. And they say members of this court have repeatedly lamented that no legal rule or doctrine is safe from ad hoc nullification by the court when occasion for its application arises in a case involving state regulation of abortion. In other words, it's such bad precedent that it's harmed other laws is what they argue. And then the fourth and the fifth point very quickly is called reliance interests. And that seems to be a minor point that was actually established in Casey for those five reasons they're basically saying we strongly affirm that it should be overturned, and here's their final conclusion. They say our decision what they do “our decision returns the issue of abortion to those legislative bodies and allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators voting and running for office.” As we've talked about, it puts back to now, if you weigh in here, Scott, one of the last kind of almost add on arguments that they respond to is the claim that this ruling will undermine the legitimacy of the court. What are your thoughts on that?
Scott: Well, it won't undermine the legitimacy of the court any more than reversing Plessy v. Ferguson did or reversing some of the other egregious decisions that were made in the past. I think, you know, with those decisions, we look at that and say, hey, the court made a mistake. Times change. We learned more and may correct it a mistake. And God bless them for that. And we should we should praise the court. What's more of a threat to the court is actually that the draft that you read from was leaked. I agree. And that's the level of trust that has to exist between the justices for the court to function well. I mean, I think if if the leak came from one of the justices, that's an impeachable offense. And if it came from one of the one of the staffers, which I suspect is where it came from, that's that that may be a prosecutable offense if if if not just firing. I mean, that that person should be dismissed immediately. And I wouldn't surprise me if the force of law came after them too.
Sean: It’d be interesting to see if there's a legal case against that. I've heard William Barr take one side and another scholar take another. I don't understand the legal side of it, but that has to be made known. And an example has to be made out of this person. Although I suspect some people are going to turn this person into a martyr and a hero.
Scott: They will.
Sean: And create a fund to help them out. But we'll we'll see how that goes. Here's the conclusion at the end. “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives.” Then it says “states may regulate abortion for legitimate reasons.” So now states can can make state based decisions on the legality of abortion. They could completely rule it out. They can put it 15 weeks. And they say these reasons include protection of maternal health, elimination of particularly gruesome or barbaric medical practices, preservation, integrity of the medical profession and so on. So they've moved it back to the states moving forward. By the way, back in the legitimacy question, I actually think Roe versus Wade did far more to damage the court than this would because the ruling itself is so shoddy and so poor that that undermines confidence in it. When I read a ruling and I've read a few, I would really encourage people to read the rulings. It's so fascinating to read a Supreme Court ruling for yourself and analyze it. I probably, I don't know, maybe read a dozen or so different cases to familiarize myself with it. But the arguments in Roe were so bad that they decimate them. Now, if this is going to be overturned, they're going to now have to respond to this case that is written into law. That's going to be a much harder task, isn't it?
Scott: Well, and that will actually guide the legislative process, too, because anybody who wants to see abortion rights become the order of the day in a particular state is going to have to respond to all of the things that the justices raised. And they can't, won't be simple simply to appeal to the right of a woman over her body or an abortion right that's been widely recognized because neither of those things are absolutely true.
Sean: So let me throw a curveball your way. By the way, if this is helpful, give us a thumbs up, write a comment. It just helps get this out for people to see it and follow it in the YouTube metric. Comment, thumbs up there. Do you think at all, and you can pass on this because you and I in co-hosting our podcast together, ThinkBiblically Podcast, do not take political sides. But I know a conversation that's downstream from this is going to be how this affects the legacy of Trump, never Trumpers and others. And of course, viewing this positively as part of the legacy wouldn't mean you don't criticize his character and other rulings. But one of the big reasons people gave for voting for Trump was the issue of the Supreme Court and life. And this has to, in the minds of people that voted that way, feel like this is a huge win for them and they voted right. I'm guessing people that voted that way are going to feel that way. How in your mind does this just affect that larger question?
Scott: Well, I think it does give aid and comfort to people who recognize that they had to hold their nose about Trump's character in order to vote for him. And it was the Supreme Court that was the main reason for that. And I think they, I mean, the selections have actually set up the court to have one of these conservative members be the chief justice for the next 30 or 40 years after this. And it was it was really I'm not sure this was Trump's idea, but some somebody who was advising him, it set it up really nicely in my view. I think it could have it could have another impact, I think, on his legacy. The thing that I think I've been reading just in the last 24 hours is how this could galvanize the folks on the left to really turn out and force. And that's what really changed the way the midterm elections go, because most most people are sort of are widely considering a Republican route in the midterm elections. And I think this now gives the Democrats an issue to run on that could gain them a lot of traction and get their base out in ways that they wouldn't have been able to do before since the far left base has been pretty unhappy with the Biden administration and the Democrats are not going as far as they would have liked to have gone. So it’ll be interesting to see how that affects. Yeah, you know, the midterm elections I think will be the commentary on the legacy of Trump, if he's able to carry that. There are a few supporters have been able to carry that forward into the midterms.
Sean: Good. Well, we'll see how that politically plays out left or right. That's an interesting conversation here. Here's a comment I want to weigh it on and then get your thoughts, Scott Vinny rack. Thank I know you watch and engage. I see you comment now and then he says “the lesson here is just how much power the evangelical Catholics have over our politics. This is why I; an atheist, fight every day.” Well, let me say a couple of things about this. Number one, thanks for watching my channel. I'm honored you'd weigh in here and you'd watch as an atheist. I don't take that lightly at all. To me, this actually seems like a ruling that pro choicers should be in favor of because what this is doing is not mandating one view for all 50 states, which is authoritarianism, which is what was done in Roe versus Wade. This is actually giving choice to the states. A woman can still get an abortion and will be able to in the long distant future in the United States. It seems to me that if somebody is actually pro choice, they should look at this and say, good. Now, if they're pro choice, not by the label, but truly pro choice, this should be a positive ruling that says good. Now we can make a case, choice for choice against and it's moved to an issue of the states. Your thoughts, Scott.
Scott: May the best arguments win.
Sean: Okay.
Scott: In the states, that's what it set up for. That's the way it should have been from the start. That's the way it was with assisted suicide. And I actually think it's going to be less divisive, not more so. I'd be surprised if there was, you know, violence in the streets and all, you know, all hell breaking loose like some people are suggesting. I just don't think that's going to happen. I think it'll be less divisive, not more so.
Sean: Let me issue a practical question for and I know you've got to run. We've got to wrap up is one of the things I try to do on my channel is have civil conversations with people about a lot of issues. I've had progressive Christians on. We've had great conversations. I've had people who are I've had a woman who is a lesbian. Come on. I've had atheists come on out of conversation, haven't posted it yet with the atheist New York media elite that was fascinating. And we had a civil conversation. The hardest topic of all for me to talk civilly about is pro life because of how much is at stake. I struggle to because life begins scientifically and philosophically at conception. And you know that I have firm convictions towards this. What advice would you give for people? I appreciate if pro choices are watching maybe to everybody moving forward how to have meaningful conversations on this because right now you look on social media. It's people gloating against pro choicers. And I think that's not Christian. That’s not helpful. I see other rhetoric that is so through the roof that's like same sex marriage is now going to get overruled. And I mean, just said nothing to do with that. What advice would you give for people when there's so much emotions at this? It's personal for many people who have experiences with abortion. What advice would you give moving forward, Scott?
Scott: Oh, I think for one wants to get conversations a little bit more substantive is to stick to the issue at hand. And that is what kind of a thing is the unborn child metaphysically philosophically. That's where that's where it has to eventually go. But for most people and you know this from the number of people we've interacted with most people who are very passionate about any particular issue. There's a story behind that. And I want to understand the story that's behind it. Why why are people so passionate about this? What what is it? Why is it so personal? Because I think if unless people really understand that that somebody feels feels their pain and understands the story, the underlying story, I don't think we'll ever get to the issue at hand. And we can have an academic discussion. But unless you get to the deeper stuff that motivates people's passions, we're not going to change them. And that's so I mean, that's where I would start. And if and if we can get to the more important issues, then stay focused there.
Sean: Amen to that. I'm a Christian. I want to be civil, want to love people and I want to protect the unborn. Let's just keep the end goal in mind as Christians loving God, loving our neighbors and try to conduct in a way that represents that. I know you got to run. So really quickly, if you are watching this hit subscribe, have some of the conversations coming up that we're talking about. And Scott and I teach together at Biola at Talbot School of Theology. We have graduate and undergraduate degrees in apologetics, ethics and philosophy. Information is below. We'd love to have you join us fully online programs and equip you how to defend life, understand why there's evil, the historical Jesus and so many other issues today. Scott, I know you got to run to a meeting, but this was fantastic. Really, really appreciate the time, brother.
Scott: And this was fun. Thanks. Thanks for your work on this and commend your listeners for tuning in. Glad you could join us.
Sean: Thanks, brother. The rest of you, we’ll see you soon.
