Defending Idaho's Anti-Abortion Law

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All right, we're live on the conversations that matter podcast. We have a special guest with us today who hasn't been on the podcast before,

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Mr. Josh Turner. And he is the chief of constitutional policy in the

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Idaho's AG's office. He's been working on some pro -life legislation, defending it.

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And we're gonna talk to him today about how to go about defending pro -life legislation, not just in Idaho, but in the current paradigm where states are, conservative states, are taking it upon themselves to limit abortion.

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How can they do that, whether it's a Trump presidency or a Harris presidency? So with that, Josh, thank you so much for being willing to talk to me and joining the podcast.

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Yeah, glad to be here, John. So let's start with the beginning here. Idaho has a law that is being called by some, at least an abortion ban.

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What does it do? Does it actually ban abortion? I guess would be the first question.

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How does it limit abortion if it doesn't completely ban it? And then what are some of the things that pro -choice or pro -abortion advocates are saying to try to discredit it and bring legal challenges against it?

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Yeah, so after the Dobbs decision, which was a Supreme Court's decision that overturned

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Roe v. Wade, and effectively said states have the authority to regulate on the issue of abortion.

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There is no federal constitutional right to an abortion. So it put the issue back into state control.

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The state of Idaho had a law on the books called the Trigger Law that the legislator said, if Roe v.

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Wade ever gets overturned, this law will go into effect in 30 days. And that Trigger Law is called the

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Defense of Life Act. And it is pejoratively called not just the abortion ban, but the total abortion ban.

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But it doesn't totally ban abortion. What it does is it prohibits abortion except in three circumstances.

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The first is rape, the second is incest, and the third is, well,

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I should say, it prohibits abortions in all circumstances except rape, incest. And then the third is -

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Life of the mother. To prevent the death of the mother, yeah. Now, that's a little bit different than most states which have a health exception.

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And the health exception is broader. Idaho drew its exception for the life of the mother to really be the life of the mother.

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And it explicitly says that mental conditions or self -harm are not a basis to provide an abortion.

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Yeah, so maybe let's zoom in a little bit on Idaho because Idaho is unique, every state is.

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And Idaho has a high Mormon population. It's known as a deep red state. Although the Idahoans I talked to don't seem to believe that press about themselves.

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They think that it's more establishment, Republican, and moderate. But the conditions in Idaho, are they suitable for,

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I mean, does the population want a actual total abortion ban? Or do you think this law reflects the will of the population there?

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Yeah, I think the, you know, I'm not from Idaho, so I'll tread lightly here.

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But from what I can tell, having been there and talking with the legislature who presumably represents the will of the people, this is exactly what the people want.

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And, you know, personally, I think the exceptions for rape and incest are not ideal.

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And I don't think they're moral. You're effectively punishing the unborn child for actions that were, and wrongs done by other parties.

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But the life of the mother, that is, in my mind, it's a moral exception.

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And there's a lot of nuance to why that's the case, but the simplest analogy I'll draw is self -defense.

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We all recognize that another person does not have the right to harm you, whether that person intends to harm you, or does so even unintentionally.

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So for example, if you are walking down the street, and somebody pushes another person into you, and if you did not take action to defend yourself against that other person being pushed into you, you would be flung into the street in front of a bus.

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You don't have to sit there and let that, you know, unintended party get shoved into you and get thrown in front of a bus.

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You can put your hands up. And a mother is essentially doing that when her child is threatening her life.

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There's a moral way to go about terminating the pregnancy, and doctors ought to have that in mind when they are ethically treating a mother's condition that is life -threatening, and not intend to kill the fetus.

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They should not take action that intends to kill the unborn child. Like, a D &E is a horrible procedure because what it is doing is it is doing nothing more than intentionally ending the life of the unborn child in one of the most barbaric ways possible, but you can separate, and I think there's a term called medically indicated separation, where the mother and the child are separated, and medical attention is given to both at that point.

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And if the child is pre -viable, you know, the chances of survival are unlikely, but if the child is around the 20 or 21 -week range, medical attention should be given to both, and it's possible that both the mother and the child can survive in that circumstance.

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When you do a D &E, there's no chance of survival unless there's a miracle or a flaw in the

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D &E procedure itself. So back to your original question, I wanna stray there a bit, John. I think, you know,

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I think this is what Idaho, the people of Idaho want. They've elected people who are largely, the legislature is largely

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Mormon -controlled, and you know, I work for the attorney general and the attorney general is a

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Mormon, and he's told me that it is part of the Mormon faith, it is a part of their dogma, their doctrine, that there be exceptions for rape and incest.

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So I just, I don't see how a state that is dominated by a

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Mormon population like that, which has voting control, I don't know if there's a majority population, but they at least have plurality control, is ever going to pass a law that doesn't reflect the dogma of their faith.

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Gotcha, so you would say, since you're defending this law essentially, that this is a step in the right direction at least, as far as limiting abortion.

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Are their Planned Parenthood still in operation in the state of Idaho? Because I've heard they've all been run out of the state as far, or at least they can't proceed with abortion procedures.

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Yeah, I know that there are still Planned Parenthoods in the state because they have sued us, and so I don't think they're providing any abortions.

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In fact, I know that they're not providing any abortions unless they're doing so illegally.

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But these operations maintain storefronts for other purposes, and so I think there is still one clinic in the

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Boise area Now, you're right, I am defending the law. Whether I think this is a step in the right direction versus a true total abortion ban that only has an exception for the life of the mother,

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I'm not sure about that policy choice. That would be my preference, that there wasn't an exception for rape and incest.

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I'll say that the exceptions are drawn pretty narrowly. You can't just claim I was raped, or you can't just claim that your pregnancy is the result of incest.

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And so I think that the legislation has done a good job with the flawed exceptions being the case.

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I think it's done a good job to limit them as much as possible. So what are the arguments then?

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You said Planned Parenthood sued you, and I'm assuming maybe there's other pro -abortion groups that are trying to explore avenues to get this knocked out in court.

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What are their arguments that they're using? Well, the

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Planned Parenthood litigation is a little bit different than the

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EMTALA litigation that went up to the Supreme Court. So I can talk about both real quick.

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The Planned Parenthood sued Attorney General Labrador for issuing a letter to a legislator named

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Brent Crane He had been asked by this legislator whether a doctor could refer women to an out -of -state clinic for an abortion, and whether that would violate

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Idaho's Defense of Life Act. And he responded and said, "'No, a doctor cannot refer a woman "'to an out -of -state abortion clinic "'consistent with Idaho law.'"

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And they sued and said, oh, you're preventing doctors from telling their patients where they can go get lawful medical care.

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Because in Washington or Oregon, they're like sitting there on the border, waiting and ready for women to come across and get abortion, get abortions.

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And Planned Parenthood is like trying to funnel women over there. And there's even groups that are setting up like funds to transport women.

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I mean, it's really quite evil what's going on. There's, we have another law called the

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Abortion Trafficking Statute that makes it illegal to traffic a minor across the border for an abortion without the parent's consent.

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Something very basic and common sense. And we got sued over that. And the groups are arguing that they somehow have a

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First Amendment right to take minor girls across the border without their parents' knowledge or consent for abortions.

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And like we're living in loony times here. But anyways, the letter said, no, a doctor cannot work for women.

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Can I just interject? So it's the argument then that there, because of the

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Dobbs decision, you can't claim that there's a fundamental or a constitutional right for an abortion, but there is a right to transport someone to another state who's a minor for an abortion.

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Am I understanding this correctly? Yeah, I mean, their argument is we're engaged in First Amendment free speech activities.

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And when we find a woman, a minor girl who's pregnant, we have a right to go and associate with her.

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We have a right to go and tell her where she can get an abortion. And we have a right to go and take her there.

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That's all First Amendment activity, they say. Of course it's not, because if that's

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First Amendment activity, then a bank robber could say, it's also First Amendment activity for me to associate with other bank robbers and to go and find a bank and rob that bank and ask the teller with a gun pointed at his head to give me all the money.

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There's a difference between conduct, illegal conduct, and speech. And the

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First Amendment speech doctrine is very convoluted, but most people understand that, yes, you can advocate for abstract ideas, even if they're illegal.

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Like you can say, I could tell you on here that communism's great and we should work to overthrow our government as an abstract idea.

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Like that's what the First Amendment protects. But if you start to get close to the line of telling somebody how to overthrow the government and making concrete plans, think,

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I don't know if these allegations were ever true, but the allegation was made that there were people in Michigan who were hiring to kidnap

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Gretchen Whitmer, right? And that's, whatever the allegations, whether they were true or not, if they were true, the allegation was that they became so concrete that they were now illegal and not simply abstract ideas.

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So for us, I mean, we're just seeing people who are bloodthirsty to commit abortions.

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They want, they have gone crazy since the Supreme Court overturned Roe and now any reasonable law is getting overturned.

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And I think this is an important point. You ask, why would a state need a law like the abortion trafficking statute?

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We're not out there, we, the people of Idaho, are not out there like trying to make up new laws for the sake of getting sued.

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There was a real concern based on groups advertising publicly in companies, even companies were like telling their employees, we'll pay for you to go get an abortion in another state, that young women would be afraid to tell their parents that they got pregnant and they would fall into the hands of these groups that want only to abort their baby.

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They don't want to direct them to a crisis pregnancy center or any other location. All they wanna do is tell them how they can abort their baby.

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And these women are minors and minors don't have fully developed decision -making and they certainly don't know all that an abortion entails and abortions are not safe.

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They're not, basically nobody would bat an eyelash if a state said you cannot traffic minors across state borders to go get pot or to go get a tattoo or any, even benign things without their parents' consent.

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Like you've got to tell the minor's parent what you're gonna do with their child. But when it comes to abortions, like, okay,

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I guess we can go take minor children without their parents' consent to get these surgical operations.

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So evil, so evil. So let me ask you this, on these cases, first I'll say this, anyone who's just now coming in, because I noticed a number of people are joining the live stream.

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If you have a question for Josh Turner, who's the guest today on the podcast, he is the one responsible for essentially defending these policies, the abortion trafficking statute and the right to life law.

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Let me know, ask your question in the chat. I know there's a lot going on nationally and because abortion is now more of a state -by -state issue, folks like Josh Turner are gonna be important moving forward in the arguments that he's making.

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But Josh, let me ask you this. So the challenges that you're receiving that are in the court system right now, what do you predict is going to happen?

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Are you gonna be arguing, like what's gonna happen at the Supreme Court level if you get to that point, which it sounds like you very well might?

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So I'll take the three cases we have. With EMTALA, we went up to the Supreme Court, we got a pretty good result.

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We got the federal government, the Solicitor General Krelager to make a number of big concessions.

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And based on those concessions, the Supreme Court said, Idaho's Defensive Life Act is almost entirely intact and enforceable.

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Go back to the Ninth Circuit and litigate this in the normal course. And if we have to come back after that, if there's still a dispute, we will.

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So EMTALA is in a pretty good place. We got a big victory there and the Solicitor General and federal government is basically litigating with their tail between their legs right now.

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The abortion trafficking statute that I mentioned to you, I argued that at the Ninth Circuit and we had a liberal panel, but the liberal panel seemed to recognize the issues with the

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First Amendment argument and claim being advanced by these crazy groups. And we're waiting on that decision.

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I expect based on how argument went, that we will win and the First Amendment claim will be rejected and that law will be fully enforceable.

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And then the Planned Parenthood lawsuit, that just is, I don't know what's gonna happen with that lawsuit.

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It's kind of a weird lawsuit in the first place. The law, most people do not understand the law to prohibit doctors from referring patients across borders.

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I think the legislature would need to take action, separate action to clarify the law and they just haven't done so yet.

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But in the next legislative session, the legislature may say by prohibiting abortions, we also are prohibiting you from being an accomplice to an abortion and being an accomplice to an abortion can include referring a person across state borders.

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So that's really the one that's probably the big decision that remains to be seen, the

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Planned Parenthood case. What are the implications of this then for other states?

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Like, I don't know exactly what states are looking at similar legislation right now, but it sounds to me like this is the only way to proceed if you wanna limit abortion is working through the state on the state level.

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Yeah. So, I mean, there are at least 22 other states that have pretty good abortion bans and Idaho and Missouri and maybe

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Texas have like some of the strictest in terms of limiting it to life of the mother.

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Texas has, I think Texas says it's a health exception, but they define health to be essentially a condition that is life threatening.

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Other states have broader exceptions and nevertheless, they're being challenged.

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So this, if the notion by these groups and they say this in Idaho, but they're not saying it in other states, they say, oh, we need a health exception.

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The largest health system in Idaho, St. Luke's has said, we're not out campaigning against abortion bans.

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We just think that our doctors don't know how to determine when the life of the mother is on the line.

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So please give us a health exception. It's a total pretext for getting rid of abortions because all of these same people are out litigating other states and suing those states for their health exceptions.

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So what does it mean for these other states? Well, what the EMTALA litigation means for other states is the federal government's theory is bunk.

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And the litigation they have going in Texas is they're gonna lose their, they sued or threatened to sue hospitals in Kansas for abiding by Kansas's law.

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And so that litigation should probably go away soon. And other states should feel empowered to tighten their abortion restrictions as much as they can.

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Now, I don't think that the pro -life movement should be comfortable with leaving this issue in state hands because there's always gonna be

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New York, there's always gonna be California. And what we're seeing in Idaho is it's very difficult to enforce our law effectively when we've got bordering states that are welcoming women.

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And on top of that, now you have these pharmaceutical companies like Danco who are shipping abortive patients into our state.

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Those abortive patients are illegal and yet we cannot effectively prevent them being shipped into our state through the mails and providing abortions for women illegally, but effectively untraceably.

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And so I think the pro -life movement needs to take very seriously a federal national push under the 14th

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Amendment that would protect unborn life in the same way that nationally, federally, we needed an amendment to protect

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African -Americans. So I wanna get into the 14th

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Amendment argument a little more, but I'm assuming the reason that you cannot limit on the state level the abortive patients coming in is because of interstate commerce.

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This is a federal issue. Is there, I guess this might lead into the next thing

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I wanted to talk about, but the difference between a potential Trump administration or a Harris administration on this issue.

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I'm not sure if there are things that in the executive office that can be done or would this need a legislative solution to limit something like abortive patients coming into the state.

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Cause there's other things that we limit, right? Like you're not supposed to bring certain illegal drugs and things like that into the country.

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So what would be the route there and what difference do you see between those two administrations on that question and abortion more broadly?

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Well, the difference is stark. And I say that being disappointed with the RNC softening its platform on pro -life issues that obviously was a political calculus and it may also accurately reflect the views of the people in power at the

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RNC. I don't know, but still nevertheless, there's still a world of difference between the

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Biden -Harris administration and their views on abortion and even the most moderate

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Republican. And a Trump -Vance administration is by no means moderate.

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Like I take Vance at his word that he's a serious Catholic and Catholics are incredibly consistent when it comes to pro -life issues.

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So I imagine that the platform probably is more a political, is political cover rather than reality, but I don't know that for sure.

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Anyways, on day one, there's gonna be immediate differences. So let's take

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Mifepristone for example, which is the abortifacient. There's a law on the books that is being ignored by the current

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Biden administration and the DOJ known as the Comstock Act. The Comstock Act very clearly, everybody understands, prohibits the shipping of abortifacients in interstate mails.

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That's being ignored. Under a Trump administration, that won't be ignored. That will be enforced. And so immediately

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Idaho's laws will become much more enforceable against abortifacients and so will other states.

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So you're saying we actually have the law in place, it's just not being followed.

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Yes, and the reason it's not being followed, there's a couple, I mean, just outright unlawfulness, but I think this law dates back to the late 1800s and old laws tend to get ignored or they tend to fall by the wayside.

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And so the FDA, Food and Drug Administration has to approve any pharmaceutical that's on the market.

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And mifepristone is a pharmaceutical on the market that's been approved by the FDA. Now it came with strings attached, that approval did, and under the

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Biden administration and the Obama administration, the safety net, like the obstacles to getting a prescription for mifepristone have essentially been reduced to nothing.

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When it first came on the market, the FDA said this drug is so dangerous that you have to have three in -person doctor visits, it has to be limited to the first seven weeks of a pregnancy and it has to be prescribed by a physician, not a nurse, not an actual physician with pretty robust informed consent procedures.

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Most of that has gone away and now a woman through a telehealth appointment can get mifepristone shipped to her at her house under the

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Biden administration. The Trump administration's FDA is gonna immediately undo that and reimpose those top -row restrictions.

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So that will make the drug harder to get. And then with the COPS Act being enforced and abided by, that will make the drug being shipped to states where it is illegal, it'll make those laws enforceable.

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And then when you get to the 14th amendment and I know I see in the chat somebody thinks it's not a great idea.

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Let me just kind of note, whether it's a good idea or not, the amendment embodies a wonderful principle, the equal protection of all persons.

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And in the pro -life movement, our fight depends on the fetus being a real person and we can never concede that ground because if you concede the ground that the unborn child is a person as much as the born child, then any number of rationalizations enter the picture.

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And now you're talking about fetal pain, fetal heartbeats. You draw lines along utility rather than principle.

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And that's where the problem comes in. So I think the 14th amendment is a good tool because it embodies the principle that we as Christians understand is just treating the unborn child as a person who has rights given to them by their creator just like any other person.

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And they have to be given equal protection. And the whole point of the federal government, well, the 14th amendment and the federal government post -civil war was to prevent states from treating persons unequally.

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And so California, you can't treat your unborn children differently than Idaho treats its unborn children.

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And so I think the 14th amendment is a viable option. It's gonna take a change in the hearts of our culture to recognize the implications of personhood for children.

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And I'll note, I've drawn down a while, but I'll note when I was arguing Mtala, the left was going crazy when they got any sniff that we were advancing fetal personhood.

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They call it fetal personhood. They think that's one of the most dangerous things out there.

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And so if that makes the left afraid, I'm all for it.

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Well, that's certainly a baseline at the end there. If the left is afraid of it, I'm for it.

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People are normally a little more active in the chat today. And I'm wondering if people are just really enjoying our back and forth, but if you do have questions and you're listening right now, we have

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Josh Turner with us who has been arguing even before the Supreme Court defending the defense of life law in Idaho.

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And he's also defending the abortion. Was it the trafficking statute, I think you called it?

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And so these are really important laws. This is happening on the state level, but there's a lot of things in play right now or open questions

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I should say, given the political landscape and what might happen in the next election.

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Let's talk about the 14th amendment argument real quick and then maybe get back to the election stuff. Because I wanna know a little bit more about what's gonna happen if the

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Democrats get in there. Like what's the worst case scenario here? But with that argument, this is the concern

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I think some have about the 14th amendment. I know I share this to some extent, is it seems to me that as you correctly observed, the 14th amendment was for a context in which it applied to former slaves, right?

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Who were newly freed and the political rights that they would have entering into political society for the first time and those kinds of things.

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And I guess those who are really for original intent are probably concerned that the left has used this.

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In fact, Roe v. Wade used the 14th amendment, right? To find a right to privacy. And it seems like a lot of landmark decisions that push the needle left use the 14th amendment.

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And so I guess the question in my mind, and I'd love for you to just respond to this is, do we then engage in the same kind of thing the left is doing?

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Treating the 14th amendment in a way that would have probably surprised those who crafted it because they weren't thinking about that.

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They weren't trying to define what life is. It was just assumed that everyone knew what a life was and states that are defining this differently wasn't on their minds.

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And if that's the argument, if it's a, hey, we just use this just like the left does, I get it. But is there an actual original intent styled argument to make from the 14th amendment or is this innovative?

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What do you think? Well, I mean, there have been scholarly articles written on how an originalist could interpret the 14th amendment to understand that person as used in the 14th amendment did originally encompass unborn children.

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Now, here's what I would say. I am not an originalist.

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Maybe that will shock you, but I'm not an originalist. Why am I not an originalist? Because the constitution is not a statute.

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It is not a code, it is a constitution. And constitutions are very different than statutes. I read statutes in an originalist way.

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But constitutions are meant to be an enduring document that memorializes core principles of a society.

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And those principles are not susceptible to an originalist methodology of interpretation.

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So for example, the ninth amendment, how would an originalist interpret the ninth amendment?

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It's just, the ninth amendment isn't, it's not possible to interpret under an originalist methodology or pick any other part of the constitution.

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When article three vests the Supreme court with quote judicial power, judicial power is never defined in article three or article one's vesting the

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Congress with legislative power. Legislative power is not defined. These are concepts that you have to understand in reference to divine principles, in reference to natural law.

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And so we understand legislative power in reference to how God acts as a legislator.

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We understand judicial power in relation to how God is judge. And the distinction of when a government official is acting in a judicial role versus an executive role versus a legislative role, these are not questions that can be answered by originalism.

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And the originalists don't even try to say that they are. It's not to me a credible method of interpreting the constitution, or I should say every question of the constitution.

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So we get to the 14th amendment and the 14th amendment guarantees equal protection for all persons and due process.

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Well, these are terms that are not defined by the constitution itself. And then you have to ask, okay, so what principle are we gonna look to?

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Do we have a dictionary in the addendum to the constitution? No, we don't. So what's gonna be our guiding light?

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And to me, the answer is simple. It's natural law. Because my reason is where does any government authority come from in the first place?

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Well, we understand in the United States that God has delegated power to the people.

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And the people took that power and delegated it to a national government. And they delegated other power that they have to state governments.

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And so we've got this federalism divide. But the power originally does not come from the people.

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The power originally comes from God. And we cannot delegate to the federal government power that we never had in the first place.

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And so I would argue no constitution and certainly not the US constitution could ever delegate to state governments the power to kill unborn children because the people never had that power to do it themselves.

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And so any just constitution has to recognize the authority of the state and federal governments to intervene and protect unborn children.

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It's as simple as that for me. Gotcha, gotcha. Well, and the constitution does invoke the

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British common law, I think by name, right? I forget where that is, but there is.

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I mean, it's built on the tradition of Magna Carta. And like Magna Carta is invoking the same principles.

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And the common law tradition that we inherited and brought over. I mean,

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Blackstone's commentaries begin with divine law. He says, all law must be consistent with divine law.

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And by divine law, he's not saying, natural law in a sense,

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I look out in nature and perceive things. He's talking about scripture. And so I, let me address maybe the heart of your concern and others concern that if we,

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Josh, if we throw out originalism, then we're gonna allow the left to come up with these crazy rights, like the right to privacy, which includes the right to abortion.

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And my answer to that is, whether it's originalism or whatever boundaries you try to put on these judges, they're not going to abide by them.

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And just because somebody abuses the laws of physics, the laws of mathematics or whatever, we don't ignore the fact that there are laws of physics and there are laws of mathematics.

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Like two plus two continues to be four, even if a leftist judge tries to tell me that two plus two is five.

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And when a leftist judge says that there is a fundamental right to castrate and sterilize children with pharmaceuticals and the state can't do anything to intervene,

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I say, no. And the problem is not that they are not being originalists. The problem is that they're wicked judges and you don't change wicked judges by imposing an external rule called originalism on them.

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Because if they're not going to abide by common logic and sense, they're certainly not going to abide by originalism.

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And they haven't. I mean, originalism is a construct that came about in the 80s by Robert Ford. And it was a reaction against the

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Warren Court. It was a reaction against activist judges. And the answer to activist judges is not to be overly constrained judges.

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The answer to activist judges is to have judges who are moral. Yeah. So just to clarify for people, because I think it's fascinating.

35:58

I'm learning here. When you talk about originalism, it sounds like you're talking about something that you just said very constrained and narrow.

36:09

What would be the philosophy that you're advocating for then? Is there a name for it? Yeah. If it's not originalism or as you say activism.

36:18

It's a natural law philosophy. And I would say it's that it is the jurisprudence of our great

36:25

Chief Justice, John Marshall. And you interpret the constitution according to both its letter and spirit.

36:33

And originalism stops at the letter part. It says you interpret the constitution only according to its letter.

36:39

You don't ask anything about its spirit or purpose or object. An object analysis is crucial.

36:45

Because if I say to you, you have a second amendment right to bear arms and you stop there.

36:53

And now you have a historical debate about what the term arms means. And you never get into the spirit or purpose of the second amendment, which is that the people have a right to serve as a check, a military check against their government, against tyrannical government.

37:11

And so we see courts that are using an originalist methodology say, well, you can have a right to bear this type of gun, but not these other military type of guns.

37:20

Like you can't have an M16, but you can have a nine millimeter. And an AR -15, we're not really sure about that.

37:27

We'll sort it out through some sort of like ad hoc historical analysis. And I think, no, that's bunk. You're not doing law.

37:32

That's not law at all. I can have any arm that serves the purpose of checking a tyrannical government.

37:40

And I think an M16 probably does a pretty good job of that. Yeah, sure. So I don't think, yeah, there's like a fundamental disagreement.

37:47

I thought of originalism as including the broader context and of the society, the intentions behind it, what it meant to that original audience, and then those principles being applied in our modern context.

38:02

So I wasn't thinking of it in terms. You're right, that originalism. So originalism has changed and there are different types of originalists today.

38:11

So the first originalism in its earliest form by Ed Meese and Robert Bork was pretty much just this very narrow textualism.

38:22

But then they realized, oh, our theory has some holes. And so then they came up with original public meaning.

38:30

But then original public meeting has some holes. And so now there's others who have come up with like original public intent.

38:37

And there's all of these competing theories that have nuances in what they mean, but what they all exclude, what originalism necessarily excludes is a reference to natural law and a consideration of the object of the clause.

38:55

It is a historical methodology. You are telling judges you must act as historians and judges aren't historians and they really don't do history very well.

39:06

Well, yeah, that's been proven time and time again. Man, I have so many more questions

39:11

I'd love to ask, but I do wanna, since I told you we were gonna go for 45 minutes and we've gone almost 40, I do wanna ask you about the

39:18

Democrats and what do you perceive happening if Harris, who looks like she might be the nominee, if she gets in there, how's that gonna make your job harder and the jobs of other people in your positions in conservative states?

39:33

I mean, if there's a Harris administration, it means that we get to sue the federal government a whole lot more than under a

39:40

Trump administration. I mean, we've been very busy. Yeah, we've been very busy suing over,

39:48

I mean, just outside of the life issue, we have been waging war on the administrative state in a number of areas.

39:58

They, in the West, in Idaho, water is precious, land resources are precious, and the environmentalists are really having a heyday with the

40:11

EPA and getting them to promote an agenda that just lacks any type of common sense.

40:18

And so we'll see more of that. It'll get worse. And now we have had success in the courts and I think we would continue to have success, but litigation can't keep pace with the administrative state under a

40:33

Harris administration. So it will just be four more years of nonstop litigation, trying to get as many injunctions in place on the administrative state as possible.

40:48

So if anyone wants to ask a question, please get it in now. I'm gonna start the process of getting to some of your comments and questions, and then

40:56

I wanna give you the last word, Josh, because I know as this goes out there, there'll be thousands of Christians watching this or listening, and even after it's recorded.

41:08

And I want to know what you think they ought to know moving into this election season and what are some takeaways, even on the debates that you're involved in on the life issue.

41:18

So let's go to this question actually first. What exactly is the Republican platform statement on abortion?

41:24

My understanding is that they support the SCOTUS decision that it is a state issue based on federalism, which is really what we've been talking about.

41:32

So if you wanna go ahead and answer that, it sounds straightforward to me, but enlighten us.

41:39

Yeah, my understanding is that, yes, that's true, that the new

41:48

RNC platform recognizes that this is a, the DOPS decision returned the issue of abortion to the states, but they've also gone and softened their views on abortive patients when they, and micropristone is the generic name of the drug.

42:10

And then also what exceptions should be permitted. I have not dove in deeply on it.

42:17

I was at a conference last week when that was changed and I heard that it was softened in a number of ways.

42:24

And I think the softening from what I understand, so I'm talking a little bit ignorantly, but I think the softening from what

42:30

I understand happened at sort of the principal level. Like we as a Republican party are not taking a full throated lifestand from conception to birth.

42:43

And it's been watered down a little bit, which has disappointed a lot of people. So that's a little bit separate from, that principal issue is a little bit separate from the legal question of what

42:56

DOPS did and whether states have the right to legislate on the issue. I would add also,

43:03

I mean, there are people that because of this are saying, we're not gonna support the Republican party anymore.

43:09

They're pro -choice and this kind of thing. And I don't hear you saying that, that you're saying it sounds like that it's a much better option to vote for the

43:17

Republicans despite this weakening platform, given, I guess what the Democrats would do if they got an office.

43:25

Yeah, I will, my conscience will not be hurt voting for Republicans by and large.

43:33

I mean, I'm sure there are some Republicans I wouldn't be able to vote for, but in terms of a

43:39

Harris administration versus a Trump administration, to me, it's easy. And I'll repeat what

43:44

I said earlier. I don't think that the platform, whatever it was watered down to be is actually gonna be reflective of the

43:53

Trump administration. He ruled, he ruled, he's a tyrant ruling in DC.

44:00

No, he governed far more conservatively on abortion than even

44:06

Reagan did. And to me, that gives me great comfort and confidence that this was probably just political cover.

44:15

And like Trump at the end of the day is a utilitarian. He's gonna take whatever political cover and not feel bound one bit by it.

44:23

His yes is not his yes, we all know that. And in this case, I very much hope that his yes is not his yes.

44:30

Yeah, Big Yehuda asked, I guess he's going back to what we were talking about before about the 14th Amendment. Josh, can you get a law enforcing death penalty with immediate enforcement and no appeal?

44:39

Will you support telling SCOTUS to pound sand if they overturned? So actually no, this isn't 14th

44:44

Amendment perhaps, but on the state level. So sounds like you don't have a problem telling

44:49

SCOTUS to pound sand. Well, I think Big Yehuda's point is rhetorical and he is arguing against the strategy of using the 14th

45:04

Amendment by drawing an analogy with the death penalty. And I would say, well, look, the death penalty.

45:11

Oh, I see, yeah. The death penalty should be, I mean, it is a moral punishment that some states still have, including

45:17

Idaho, and it ought to be carried out swiftly. Now with no appeal, no, because there is something known as the due process clause and due process ensures that there is a right of appeal and that we're not putting to death people who do not deserve to be put to death.

45:35

To me, that doesn't change the 14th Amendment argument. The 14th

45:42

Amendment allows for intervention and protection of unborn children because they are persons. And the

45:48

Eighth Amendment prohibits cruel and unusual punishment, even for criminals.

45:54

And due process clause requires all persons, including criminals, to receive adequate due process of law.

46:01

So all of these protections, I think are consistent with each other. They work hand in hand. And I don't know that I see them as somehow inconsistent or making a 14th

46:11

Amendment argument for fetal personhood a bad idea. Is it like politically tenable now?

46:18

No, that's not gonna change with the next Congress. What needs to change is people need to start electing moral legislatures, but those moral legislatures have to reflect the collective conscience of the people.

46:33

And right now the collective conscience of our people is not to consistently recognize fetal personhood.

46:40

Yeah. Can you give me five more minutes? Is that okay? I hate to ask you, you're so generous. I don't have anywhere to be.

46:46

Don't worry about it. Okay, all right, I'm gonna take it then. Because I know this wasn't supposed to be about the 14th

46:53

Amendment, but this is intriguing me quite a bit. And the thing that just came to my mind was just birthright citizenship in the 14th

47:00

Amendment. Because it seems like when you read the 14th Amendment, isn't it talking about who is qualified or what rights extend to those who are in a political society?

47:11

And it's defining that by saying like, those who are born here, but it seems like they have to be born, right?

47:17

To be citizens. So I'm just wondering like what the challenge would be if you tried to use this in a legal setting and then why wouldn't this also apply to,

47:29

I guess, illegal migrants who come over and have kids? I don't know where you stand on birthright citizenship. I have not given that a whole lot of thought.

47:36

I mean, I was around for the arguments during the Obama campaign and administration and sort of like heard them at a high level, but never paid too much attention to them.

47:50

But the fact is that the 14th Amendment right now is used in a substantive way.

47:55

It's called substantive due process. And the 14th Amendment is being used to provide protection of rights that are nowhere written in the constitution.

48:07

So for example, where does the constitution tell parents that they have a right to homeschool their children?

48:13

It doesn't. Where does the constitution tell - 10th Amendment, I would think, but. Well, it doesn't explicitly.

48:20

Where does the constitution tell parents they have the right to teach their children German if they want to, or tell, where does the 14th

48:27

Amendment give people the right to deny a medical intervention like a vaccine?

48:36

Like all of this is, the check on government is not, the text of the constitution is never on its own in an originalist methodology going to provide the types of rights and protections we all understand we have as creatures of God.

48:54

You have to interpret the constitution in reference to natural law. If you don't, you're gonna end up in a distorted society where might makes right.

49:04

That's all there is. It sounds like you're, I'm sorry to cut you off, but it sounds like it's not just natural law.

49:09

It sounds like you're also invoking cultural traditions and so forth, right? Because what constitutes being a citizen in a country is,

49:19

I wouldn't think that would be a natural law thing so much as, I mean, I guess it is in the sense of recognizing the way

49:25

God has set up nature and proximity to one another, but we have an arrangement in our country that's very specific compared to other countries.

49:32

It's much easier to become an American than it is to become a Chinese person or you know what I mean? And there are areas where Blackstone talks about, he's analyzing what is a just punishment for a certain type of crime?

49:50

And does it need to be the same in every society? Like should jaywalking be punished in the

49:55

UK the same as it is in the US? And he talks about the proximity of the person to their society, all of the background you're talking about.

50:03

Like it is relevant and it does matter that there are historical traditions and that does come into account in how our laws are written, how they're interpreted, how they're enforced.

50:15

And the whole like issue with immigration is something

50:20

I'm not an expert in at all. And so I won't pretend to opine there, but I recognize you're right.

50:27

Like there is a historical background and the current jurisprudence around substantive due process does add one of the questions that asks is, if the right is so firmly rooted in the country's history and tradition.

50:43

I think that's the test. So that is part of the legal analysis of substantive due process.

50:49

You can't just come up with a new right, but I'll say that test is not going to answer the question in the right way of whether the

50:57

Jim Crow South was moral, because it was firmly rooted in the history and tradition of the country to have separate but equal facilities, not just in the private sector, which is a harder question, but in the public sector.

51:13

In the public sector, the government's utility operators, transit operators were able to treat black persons as inferior members of society.

51:24

And if you were to ask, what has our culture historically done, you're not gonna get the right answer.

51:31

Yeah, well, I mean, that was, depending on what time period you're looking at, I guess all over the country, right?

51:37

There was always a separation made between those in a political society and then those who aren't, whether it's

51:44

Native Americans or slaves who came here, or I guess at one time, right?

51:49

Even certain classes of people like women or, so yeah, I mean, tradition is, there's a change that's been happening as we become more egalitarian, but it seems like our laws start to reflect that more.

52:03

And obviously the court decisions seem to reflect that more. And when they've gone so far that they've started, like obviously, we use the

52:13

Roe v. Wade example, but we could use, I guess, I forget the case, but the case,

52:19

I think it was in the 40s where, or not the 40s, sorry, the late, I think it was late 50s where the

52:26

First Amendment was applied to the states where now you couldn't have Christian schools that distinctly honored

52:36

Christianity because that's a violation of the Establishment Clause and that kind of thing.

52:42

Like, it seems like there's just such a reaction to that because it's like, we're moving so fast away from the traditions in our society that that's why people are like, man,

52:52

I don't know, like the 14th Amendment, if we use that, is something bad gonna happen? So I'm rambling a little, sorry, but I'm just trying to get the sense of it.

53:01

It brings up, let me just make one point in response to that because I think there are at least two camps here on the conservative side.

53:11

They say, they ask the question, what would our founding fathers have thought? And they try to answer that question.

53:17

And the answer to that question is in their minds, the right answer at the end of the analysis.

53:23

And that's not how I think about things. I tried to just ask, what is the right question?

53:28

And yes, we have a constitution. Yes, we have laws that we have to work within, but the founders didn't get everything right as a matter of divine law in terms of the practice.

53:38

I think they set up principles that at a broad level are 100 % moral, and we should be striving to attain those principles.

53:46

They're announced in the declaration, they're codified in the constitution, and they provide us with a framework to answer all the questions right.

53:53

But we don't answer those questions right by asking what the historical practice was.

53:59

We answer them right by asking what the historical principle is. And the principle is a little bit more flexible than what

54:05

Ben Franklin thought or what Thomas Jefferson thought because both were slave owners. And I don't know that owning slaves is consistent with the

54:13

Declaration of Independence in any way. Gotcha, gotcha. Okay, so you gave me the five minutes, which

54:19

I'm incredibly grateful for. I wanna ask a final question here just for you, open floor, we're really appreciating what you're doing in Idaho.

54:29

And what do you want Christians who listen to this? Because there's a lot of Christians in this audience who will listen to it later on iTunes in audio form and watch the video.

54:40

What do you want them to take from this and do for the anti -abortion cause?

54:46

What would make your job perhaps even easier on the state level? And where can they go if they need to support your cause?

54:55

I don't know if you have an organization or anything like that you wanna plug, but anything you wanna talk about. Yeah, no organization.

55:02

My rallying cry would be that Christians start to winsomely and consistently defend the life of the unborn as persons.

55:16

I think we've been shy about doing that. We've been hesitant to go out and say in cases of rape and incest, there should not be an abortion permitted.

55:27

If we make all of these practical concessions, and I know this is hard, but I think in order to be consistent and in order to really fully defend the life of the unborn, we have to recognize that when a mother chooses to kill her unborn child, she is culpable and the law needs to reflect her culpable act.

55:48

And until the law reflects the full reality of that heinous act, we're never going to see those children as children.

55:55

And so Christians out there need to start internally coming to terms with the fact that these are unborn children in the same way as a six month old child that you're holding crying in your arms.

56:06

And until we do that, our legislatures, no matter how moral they are, are ever going to be moved to legislate in a way that reflects their personhood.

56:15

Yeah. Well, Josh, I so appreciate your time. I know that you're doing this because you want people to be educated on this and immobilize.

56:26

So thank you once again. And if people want to reach out and contact you,

56:31

I don't know if you have an avenue to do that. If other people have questions, if you don't or if you want what we could do too is if people have questions,

56:42

I can also, people can contact me and I can shoot them your way as well. Yeah, you can be the filter.

56:51

I'll be the filter. I'm sure you have so much time to just sit there and answer questions, right? Well, yeah, once again, thank you.

56:58

God bless. And yeah, I just pray that the election goes well and your job becomes a little easier moving forward.