The Striking Down of Roe v. Wade

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On this episode of Conversations with a Calvinist, Pastor Keith welcomes back Matthew Hinson to discuss the landmark Supreme Court ruling which took place this week overturning Roe v. Wade and Planned Parenthood v. Casey. This is an historic moment in American politics and Matthew provides key insight and commentary on how we arrived at this point and what we can expect to happen next. Conversations with a Calvinist is the podcast ministry of Pastor Keith Foskey. If you want to learn more about Pastor Keith and his ministry at Sovereign Grace Family Church in Jacksonville, FL, visit www.SGFCjax.org. For older episodes of Conversations with a Calvinist, visit CalvinistPodcast.com. Follow Pastor Keith on Twitter @YourCalvinist Email questions about the program to [email protected]

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Mark this date, June 24th, 2022, 1010 a.m.
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The Supreme Court of the United States overturned Roe vs.
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Wade.
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And that's what we're going to talk about today on Conversations with a Calvinist, which begins right now.
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Welcome back to Conversations with a Calvinist.
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My name is Keith Foskey and I am a Calvinist.
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And I am joined today again by my good friend and not yet Calvinist, Matthew Henson.
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Matthew, how are you today? I'm great, Keith.
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I am.
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I guess, like we said in three show, I'm nursing the end of a cold, but I'm feeling just fine.
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I'm more excited than I have been in a very long time.
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And yes, we are contractually obligated to know that I'm your not yet Calvinist friend.
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So there we go.
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Yes, sir.
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And I do have to note also that for those of you who are familiar with Matthew and familiar with him being on the show, one thing, he's not coming to us from a prison cell today.
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He's on vacation.
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That's correct.
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If he sounds a little bit different, he has not been arrested yet.
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Al-Qaeda is not over there and the FBI is not over there.
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He's not going to be blinking in Morse code.
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That's right.
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But he is on vacation.
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And I'm so grateful that he took the time to take a little bit of time away from his family to talk about this historic moment.
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This is a historic week.
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And it's so amazing how this has turned out.
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One, it happened during Pride Month.
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Many people have not missed that.
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We talked at the beginning of this month.
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I had Richard Roden on the program to talk about Pride and the fact that this is a season of the year where the sexual perversion is promoted.
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And we see it everywhere we go.
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And businesses and everything are promoting it.
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So to be able to sort of, in a sense, to see righteousness prevail in a month where we see so much wickedness prevailing has been a very positive thing.
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But I don't want to put the cart before the horse.
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I do want to ask you some questions.
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And the reason why I asked you on the program above anyone else, and I would have chosen you number one, because you are, in my opinion, among our normal guests, you are our most seasoned Supreme Court scholar.
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I have to share this quick story.
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When I first moved into my house, and I don't remember the occasion, but you gave me a gift.
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And it was, I don't remember if it was my moving in gift or if it was for Christmas.
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I don't remember what the occasion was.
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But you gave me a gift, and it was the records of Supreme Court decisions.
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And I thought, what an interesting gift.
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And I still have those.
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I'm very grateful for that.
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But that told me something about you.
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Sometimes the gifts we give others tell us about who we are.
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And it told me that this is a person who is very interested in the court and how the court operates and how the court functions.
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So tell me about why is that? Why does that interest you so much? Sure.
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So what I sent you was a copy of the Supreme Court's 2008 opinion, D.C.
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versus Heller.
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And that was a case in which, for the first time in the history of American law, the Supreme Court ruled on what exactly does the Second Amendment to the United States Constitution mean? Prior to that, it was an open question in legal circles.
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Does the Second Amendment merely apply to a collective right of people to join a militia, in which case that is satisfied by the fact that we have a National Guard? And then is that it? And the Supreme Court said in D.C.
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versus Heller, no, that's not the case.
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It protects an individual right to keep and bear arms.
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So, yeah, that was the one I sent you because you and I had had a conversation about that.
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And I think you actually said you were doing some target practice, teaching your children, say, firearm handling, proper respect for weapons and all that.
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And I was just thinking, you know, it's amazing that you even have the right to do that based on a court decision that's not that old, really.
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So why am I so interested in the Supreme Court? Well, it's referred to as the judiciary is referred to as one of the nonpolitical branches of government.
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And we can kind of roll our eyes and, you know, there's quite a bit of, let's say, valid dispute about that.
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But the president is a political creature.
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Congressmen and senators are political creatures.
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The judiciary, however, is at least supposed to be and at least by comparison is less political in the sense that a Trump appointed justice often ruled against President Trump and an Obama appointed justice would occasionally rule against President Obama.
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And so there's this there's this appeal to what we might call a greater standard of truth than a raw exercise of political power.
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Interestingly enough, the judiciary is the only branch of government that can trace its origins back to anything biblical.
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There is no idea of representative democracy in the Old or New Testament.
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Moses was not elected.
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David was not elected.
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They do not serve as analogs for presidents or congressmen or the Speaker of the House or anything like that.
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But a judiciary judges the application of fair standards.
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You even had Supreme Court justices referencing passages from the Bible in their opinions, citing it as an authoritative source as recently as the 1990s.
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Oh, really? Yeah, it was actually in a case regarding a use of lethal force.
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And so someone broke into someone's house and the question was, it was a very complicated technical matter.
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But in the introduction, one of the Supreme Court justices actually cited the mosaic law in stating that if an intruder breaks in in the middle of the night and he is struck and killed, then that's not the fault of the homeowner, basically.
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Exodus 22-2, I had that printed on the back of my shirt for my self-defense, my pistol classes.
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Exodus 22-2 is printed on the back of our shirts.
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Okay, so that was a citation in a Supreme Court case not that long ago.
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And so the idea of structured, ordered thinking of – and honestly, a love for exegeting the Bible.
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It helps me to love lawyers' work of the Supreme Court because – and there are some parallels and there are some that do not because one is Theano Stoss and one is not.
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But the Constitution of the United States is something that must be exegeted.
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We can use that word about it.
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We must understand history and culture and context.
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And, in fact, in oral arguments recently, the Solicitor General of the United States, who is the primary person who represents the United States in litigation for the Biden administration, was talking about the Second Amendment and said, well, if we exegete it this way, then it would mean this.
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And I was like I hadn't heard that word in that kind of context before, but I thought, yeah, that is what you're doing.
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And so I've always had a love for that.
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I love ordered thinking.
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I love careful argumentation.
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I love if this, then this kind of reasoning, and you don't get that with other branches of government, but you do with the Supreme Court usually.
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I understand.
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What's interesting is in my hermeneutics class, one of the things I often say is the Supreme Court is a hermeneutical body in that its job is to interpret the text.
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It's to take the meaning of the text and apply the text of the Constitution, take that and apply it to whatever the circumstance may be.
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Okay.
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How does this apply? And that's part of hermeneutics is going from interpretation to application.
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Right.
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Yeah.
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And it's great.
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I love listening to oral arguments.
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My wife will have headphones on while I'm working, and I'm the dork that's doing IT work because that's my main job on these monitors.
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But over here I have the oral arguments from a Supreme Court case from 30 years ago playing because I want to know what were the arguments being made so that – and not that this is terribly productive.
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But when you see silly things on Facebook or Twitter or whatever, one of the things I'll often simply ask, and I do this in person more because that's not terribly profitable, but I'll just say the Supreme Court screwed up this or that or the other.
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I'll say, okay, what part of the majority or dissenting opinion did you not agree with? What, in their opinion, did you find objectionable? Oh, well, I just think it's bad.
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Okay, well, I'm sorry, but that's not a good enough answer.
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It's very similar to saying, Keith, God says that you should do this.
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And you'd say, okay, where does God say? Well, I don't need it.
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You'd say, chapter and verse, please, and then there's context and history and all the things we have to do.
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And so I love the parallel that that creates when it comes to this sort of ordered legal reasoning.
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Nice, nice.
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Okay, so looking at what happened this week, as far as I can tell, and I've gotten a little more active on Twitter, at Pastor Keith, if anybody wants to follow me on Twitter.
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And you should.
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Yeah, it's fun.
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Until Keith gets banned.
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Well, yeah, it may not last very long.
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But for the sake of wanting to get out there more and interact, and it has opened some doors for me.
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Like this week, I got to interview Tom Buck from the SBC, from Southern Baptist.
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Very, very cool.
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And that was cool.
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And Twitter sort of made that happen.
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And so Twitter's opened up some doors.
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But what I have seen is almost universally those on the right are applauding the decision to strike down Roe versus Wade.
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Those on the left are, you know, especially the president.
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Even today, the president was making statements that this was a terrible thing and that it was going to harm women and especially women who are poor.
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And this is one of the things that I addressed in one of the posts that I made because, you know, he talked about how this was going to harm poor women.
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And so anyway, I know that there's a political divide about the issue of abortion, even though I don't think there should be.
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I think that this is something that all human beings should recognize that this is murder and that we are killing a child in the womb.
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However, we know that that political position is certainly a divide in our country.
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And so the question that I have for you today and the question that I'm not sure many people are asking, but I think they should be asking.
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And so this is why I wanted to ask you is the question of what happened to make this because Roe versus Wade.
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I mean, I remember being a kid and hearing about what Roe versus Wade made abortion legal.
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And of course, it happened in 73.
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Is that correct? Right.
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It happened in 73.
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And so I was born in 80 all through the 80s.
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Abortion was legal, but it wasn't really talked about a whole lot that at least that I remember, you know, in my in the circles that I ran in a little as a little kid, I didn't hear about it much.
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But I remember specifically an episode of Seinfeld.
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OK, so I may be I'm a little older than you, so I may be dating myself.
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There's an episode of Seinfeld where the the female character is dating a man and it comes up in the conversation that he is pro-life and she is pro-choice.
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And at one point he says, maybe one day we'll get enough judges on the Supreme Court to overturn that terrible rule.
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Now, I wish I had a clip and maybe if I get a minute, I'll find that clip on Seinfeld and throw it in here because it's so interesting.
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That was 1993 ish.
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So we're looking at, you know, close to 30 years ago that Seinfeld was talking about the fact that one day there may be enough judges to overturn this.
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One day we'll get enough judges in this.
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And again, the guy represented, you know, the show kind of made fun of him because he was representing the right wing.
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He was representing the the conservative.
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Maybe one day we'll have enough judges to turn to turn that law around.
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So how did it happen? What happened? Tell us.
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Yeah.
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You're here to tell us.
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Tell us all about it.
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So this could get this go quite a bit long because we have to understand a little bit of the history about what happened here.
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And I'm going to be doing a lot of this.
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But to understand that, we have to go back to this.
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We're going to be piecing this together.
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This is a bit of U.S.
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judicial history.
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Gotcha.
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So what happened 36 hours ago ish at the time of this recording.
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So the Supreme Court has a term that is very similar to a school term.
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They begin hearing cases in August, September, and they hear cases or arguments and written briefs submitted by respondents.
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And they also accept new cases during that time for the next year.
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So if you are through a court of appeals and you petition the Supreme Court to your case, they hear less than one percent of cases requested simply because they don't have time to do more than that.
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And they only pick ones that have great constitutional importance usually.
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What happens to the cases that don't get heard? I mean, with the other 99 percent that are on appeal, do they just get put in a waiting bag or does a lower court decide? That is one of the most beautiful, and I'm going to say God intervening things about this case.
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It is so fascinating.
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So in the American judicial system, if you have a problem with the state officials, state law, whatever, you would sue or bring action in a state court.
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For federal law, there are three levels of federal law.
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You have a district court, an appellate court, and the U.S.
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Supreme Court.
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So let's take Florida, for example.
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Florida has a number of federal district courts so that if you, Keith, let's say, let's say the mayor of Jacksonville, you're not in Duval County, but let's say you were.
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The mayor of Jacksonville came and said, I'm shutting down your church because I don't think you should have the right to practice your religion.
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Not that that would ever happen, but let's just say he did.
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Then your first course would be to sue him in a federal district court alleging a violation of your First Amendment rights.
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And you would go and make your argument in front of the judge.
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Judge would hear your case.
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The judge would issue a ruling.
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Let's say you didn't get what you wanted.
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Then you would appeal the ruling and you appeal is not just I don't like this ruling, so I'm going to try again.
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You have to assert that the judge made a specific constitutional or procedural error that is that is visible in federal rules of procedure or something like that.
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He didn't allow your witnesses something.
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He did something wrong.
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It can't just be I don't like this.
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Then in Florida, Florida is part of the 11th Judicial Circuit Court of Appeals, so it would be appealed there.
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If they accepted it, your appeal, then you would go before three judge panel.
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You would make your case.
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You would say, again, the merits of your case on the First Amendment don't matter at this point.
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Essentially, you're saying here is the specific issue that the district court judge made a mistake in and he did not weigh my First Amendment rights heavy enough.
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That's the case you're making there.
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Let's say you lost.
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Then you could make something called an en banc appeal where you pull in the entire 11th Circuit.
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Now, normally it's a three judge panel.
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The 11th Circuit has like 15, 16, 18 judges, and all 18 would come and sit in the room at the same time to listen to your case.
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It's a big deal to get an en banc hearing.
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So let's say you got an en banc hearing and you make your same case and the 18 judges don't give you the answer that you want.
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You have one course left, and that is an appeal to the U.S.
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Supreme Court.
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If they do not accept your appeal or if any other stage in this process has not accepted your appeal, then the judgment of the lower court stands and you're done.
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That's it.
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Game over.
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You're just that's it.
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So 99% of the cases, not to repeat, but just to clarify, 99% of the cases really end up with the appellate court.
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That's why Supreme Court justice nominations get a ton of press, and they should.
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But when the president who appoints judges to district and appellate courts, that's very important because that's where 99% of cases are decided.
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So we think of Justice Jackson was just nominated by President Biden, confirmed by the Senate.
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Sounds like a superhero, by the way.
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Justice Jackson.
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Justice Jackson.
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Yeah.
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Katonji Brown Jackson is her name.
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Yeah.
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So we think of Supreme Court justices and we should, but most cases end at the district or the appellate level.
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Now, let's say for just a minute that you would do something called a appeal for a writ of certiorari, which is just fancy Latin for saying a review or an intervention.
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You're asking the court to intervene.
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Certiorari, C-E-R-T is like certify.
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Basically, you're saying the court, I want the Supreme Court to certify this, basically look into this and make sure it was done right.
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If the Supreme Court grants cert, that's the shorthand for it, then what they are saying is that this case, either a, so you need four justices of the Supreme Court of the nine to grant cert to hear a case.
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If four of the nine vote to hear it, it gets placed on the court's calendar and you are summoned to Washington, D.C.
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to make your argument.
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If the court does not grant cert, again, you're stuck with whatever the lower level said.
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Here's why this particular case.
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So that's that's the background of this particular case that was released 36 hours ago is one called Dobbs versus Jackson Women's Health Organization.
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Dobbs is the gentleman's name.
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He's like the health commissioner of Mississippi.
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The Mississippi legislature passed a ban on abortion beyond 15 weeks.
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They did so knowing full well that it flew directly into the face of the precedents established in Roe versus Wade and Planned Parenthood versus Casey, which we'll get to in a minute.
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The defendant is the Mississippi health commissioner, whatever title he holds, and Jackson Women's Health Organization is a women's health organization that provides abortion services.
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And for the listener, I'm doing scare quotes, but for the viewer, you get my point.
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So they sued saying this law should be blocked because it violates Roe and Casey.
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The district court said, yep, violates Roe and Casey.
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The Fifth Circuit Court of Appeals, which is the most conservative court of appeals in the United States, instantly granted something called summary judgment, which means we're not even going to hear the case.
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We're going to rule in favor of the abortion because they said we might not like it.
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But this is the precedent.
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This is how the court system works.
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Mississippi filed for cert for the US Supreme Court, asking them to hear the case, knowing full well that they were going right for the jugular on Roe versus Wade.
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They knew.
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And in their briefs, they pretty much suggested as much.
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And the Supreme Court did something that they can sometimes do, which is if they don't have for to hear it, they might get for to reschedule it.
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And so rescheduling it just means they kick the can down the road.
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They're saying we're not saying yes, we're not saying no, but we have a conference in a month.
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We'll decide that Dobbs versus Jackson Women's Health Organization was rescheduled 13 times.
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That has never happened in a Supreme Court case before, because what you and we don't know the particulars of the internals of the court.
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It is actually from the 2019 court calendar when the case is cited in legal briefs.
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It's given a number dash the year.
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That's how Supreme Court cases are cited.
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Dobbs, the 2019 Supreme Court case, because technically it was first asked for cert back in 19.
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So what happened is you had four justices that wanted to hear it but knew that they did not have the votes.
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And so rather than deny cert, they did have enough votes to simply just keep the case alive.
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Just keep put next month, next month, next month, next month.
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Finally, I believe it was about a year ago, the Supreme Court granted cert for Dobbs.
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I think it was after Justice Barrett was confirmed with the Supreme Court and they had the vote that they needed.
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And Dobbs was granted cert and they were ordered to appear for oral arguments.
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I think it was in December.
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So that's how we got to yesterday.
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The Supreme Court heard oral arguments for Dobbs vs.
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Jackson Women's Health Organization.
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In Supreme Court cases, oral arguments are important, but more often than not, before the oral arguments happen, the written briefs are where the real meat and potatoes are.
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Because in oral arguments, you have 90 minutes, 45 for one side, 45 for the other.
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There's nine justices.
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That means this guy gets to make his opening monologue and then each justice gets maybe two minutes to ask questions.
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It's not much time.
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And because of that, most justices will tell you oral arguments do not.
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They don't sway the results of the case because most of the time what they're looking at is the briefs.
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The petitioner and the defendant will both submit briefs about why they should win the case.
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And these are big legal documents.
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And then you have something called amicus curiae briefs, which simply mean friend of the court in Latin.
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And so in this case, Planned Parenthood filed an amicus brief.
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Gosh, what is it called? March for Life filed an amicus brief.
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I think various Catholic diocese filed amicus briefs, crisis pregnancy centers.
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Basically, anyone who might have an interest in the case files a formal legal document with the Supreme Court to say, we think you should rule this way and here's why.
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Or at least if you do rule their way, consider us when you write your opinion, make sure that we're protected.
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So if it's some other case, if you're going to strike this down, make sure that you account for this fact.
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So the justices read all this material, thousands and thousands of pages.
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So by the time they get to all, do you think they really read it all? Their clerks do.
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Yeah.
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So each justice is granted three clerks.
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The chief justice gets four and the clerks are generally law school grads.
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If you get a clerkship for a Supreme Court justice, it is a Willy Wonka golden ticket to whatever you want to do in the legal field.
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You are basically it's it's it's like interning in the Oval Office.
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I mean, in the judicial world, you get whatever you want, but you are reading.
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Holy Toledo, you're reading because the Supreme Court, here's a couple of those in cases per term.
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Each one comes with thousands of pages of briefs coming in and you have to file that down and tell your justice who picked you as a clerk.
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What is important from this? And the justices, of course, they read and they write themselves because they're writing opinions, messages to other justices, things like that.
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So anyway, Dobbs comes before the court.
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Oral arguments take place in December and Mississippi changes its argument.
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And this is where fate is the wrong word.
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You and I both would have a different view on what that means.
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Providence.
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Providence.
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That's right.
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Mississippi recognizes something.
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What Mississippi was doing originally is what the pro-life industry and the pro-life movement has done, which is a strategy called incrementalism.
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And so what that means is that you have Mississippi wanted a full scale ban on abortion, but they knew the Supreme Court wouldn't go for it.
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So 20 weeks or 24 weeks was the original line.
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They tried to back it up a couple of weeks and say, just let us have this much.
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And they tried to sort of incrementally work their way to it.
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And then the next week it was Texas and the next week it's Arizona.
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Like states were trying to do this incremental approach.
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But Mississippi recognized something.
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They said that with the compositional court the way it was, with five and a half conservative justices, and we'll get into that in a little bit.
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They thought they could go for the whole hog.
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They thought they could overturn Roe and Casey completely.
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And in fact, the Biden administration's solicitor general, again, who represents the United States in oral arguments.
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Her name's Elizabeth Prelogger.
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I don't want to say she fell into the trap, but she she rolled big dice and she lost.
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Because the petitioner from Mississippi said, Supreme Court, you have to ditch Roe versus Wade and Planned Parenthood versus Casey completely.
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You cannot write a new standard where our incremental approach works.
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15 week ban and Roe and Casey, they do not work in the same thing.
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You either have to invalidate our law or you have to strike Roe and Casey.
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They left them no uncomfortable middle ground or no comfortable middle ground.
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Then in oral arguments, this is where I think it all changed.
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The solicitor general for the United States is called up.
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And one of the justices asks her, what do you make of their claim? Can we find a middle ground? Do we have to strike their law or do we have to strike Roe and Casey? Basically, which is it an either or is it a dichotomy? And the solicitor general said, yes, it is.
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You have to affirm Roe and Casey or you have to strike down their law.
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We will not accept the middle ground.
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They threw all their dice in on that one and it backfired.
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It was a legal strategy that did not work because that's precisely what the court did.
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Thirty six hours ago, the decision in Dobbs versus Jackson Women's Health Organization came down.
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It was a 5-3-1 decision.
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That's five justices voting in the majority, three justices voting in dissent and one justice filing a concurring opinion, which basically means, yeah, Mississippi's law can stand, but the majority is wrong for why.
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And we can go through that a little bit about why that is.
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So that's what actually happened.
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Because I saw I thought it was 6-3.
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So you're saying it wasn't 6-3.
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So, yeah, this gets into a little bit about how the court writes opinions.
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So if you've ever heard of the phrase the right thing for the wrong reasons or something like that, then that's basically what what happened here.
26:56
So five justices, Justice Alito, Thomas, Barrett, Kavanaugh and Gorsuch all said Roe versus Wade and Planned Parenthood versus Casey are invalid.
27:10
They have no constitutional precedent pedigree that the opinion.
27:15
And again, I've read it.
27:16
It's two hundred and twenty one pages long.
27:17
There are dents with footnotes and appendices.
27:21
They make their case historically, logically from the text.
27:24
And they say these opinions were wrong the day they were decided.
27:27
They're egregiously wrong and they have to go.
27:29
Roe and Casey do.
27:32
The dissenting opinions said Roe and Casey are great and we like abortion a lot.
27:38
Basically, I get you.
27:40
Then there was a concurring opinion.
27:42
Chief Justice Roberts, who is a squish and really enjoys just being super squishy on these kinds of issues.
27:49
He wrote a concurring opinion and his concurring opinion said, I would not strike down Mississippi's law.
27:57
I would merely take a middle ground where we allow Mississippi's law.
27:59
And yeah, it conflicts with Roe and Casey, but we make this case the new Roe and Casey and we establish a new standard by which we can judge these laws.
28:07
Mississippi's 15 week ban can stand.
28:10
Now, what's interesting is when these opinions are released, they are allowed to interact with each other.
28:15
So they're circulating drafts between each other.
28:17
So the majority will take the dissent to task and the dissent will take the majority to task.
28:23
Well, the majority took Justice Roberts concurrence behind the woodshed.
28:26
And for those listeners who don't know what that means, that means they beat the legal tar out of it because the majority said.
28:34
He got he got he got a spanking.
28:37
He did because the majority said, OK, the concurrence says leave Roe and Casey, but also allow this 15 week ban.
28:45
OK, so what's the new standard? Is it 15 weeks? And from the text, from the text of the Constitution, where do we get that? And furthermore, Roberts suggested, well, maybe we should only ban abortions after women have had a chance to get them.
28:59
In other words, we need to leave a reasonable period of time where a woman can have an abortion.
29:04
She wants one.
29:05
She chooses not to.
29:06
After that point, we can ban it.
29:08
And so Justice Alito and the majority is like, OK, when is that? I mean, six.
29:13
Is it for like how long does it take after a six week ultrasound? Is it four weeks? Is it three weeks? This is an unworkable standard and it's dumb.
29:21
Your concurrence sucks, basically, is what he said.
29:23
And it did.
29:25
So that's the opinion that came out.
29:27
But unequivocally, before people get worried, like, oh, maybe it's not final or it's five, three and one, that's weird.
29:33
Is that binding? Yes, it is.
29:34
A majority of the court's justices said they signed on to an opinion and they said Roe versus Wade and Planned Parenthood versus Casey are overturned in explicit, clean English language.
29:46
They are gone.
29:48
It is not what we're overruling.
29:49
Paragraph three or we're deciding this standard differently.
29:53
They're dead.
29:54
They're gone completely.
29:55
And that's what happened 36 hours ago.
29:58
That is amazing.
29:59
And I want to just say for on behalf of the listeners, I'm not going to clap into the microphone, but I would applaud you for the the clarity with which you just explained that, because I feel like I feel like I have I feel like I have been educated and I'm sure that the listeners will as well.
30:19
Thank you.
30:20
Many of them probably like me only know a little in regard to how our judicial system works.
30:27
I do have several questions that are that I hope would be maybe questions that the listeners have and would maybe be able to to get you to answer.
30:41
The first one that comes to my mind is I know that the elimination of Roe versus Wade and Planned Parenthood versus Casey, these two landmark decisions, the elimination of these does not therefore mean that abortion is now illegal.
31:01
Because the in a sense, those decisions didn't make abortion legal.
31:08
They made it illegal for abortion to kind of explain that, I guess is what I'm trying to say.
31:14
Yeah.
31:15
So we need to do a little bit of history and we're going to get into some legal weeds and stuff like that.
31:21
So if I get if if you need to take a break and and and ask a question or something, please do.
31:30
OK.
31:31
So Dobbs versus Jackson Women's Health Organization explicitly and by name overruled Roe versus Wade and Planned Parenthood versus Casey.
31:39
So let's wind the clock back and see what happened.
31:45
In the year 1965, there was a Supreme Court case called Griswold versus Connecticut.
31:50
We have to go all the way back to Griswold.
31:53
What Griswold versus Connecticut said, Griswold had something called the Comstock Law that banned contraception.
32:00
Just full stop.
32:01
It was a religious understanding at the time that it was passed in the 1870s that contraception promoted promiscuity.
32:11
That if you could have sexual intercourse without the consequence of pregnancy, then it would make people more apt to do so.
32:23
And so the state of Connecticut banned contraceptives in Griswold or rather in this Comstock law.
32:30
Now, most people don't have a problem with it.
32:32
This lasted for 40, 50 years.
32:35
But then someone did.
32:37
And here we meet our villain.
32:39
And her name is Margaret Sanger.
32:41
You may know that name.
32:43
Margaret Sanger is the founder of Planned Parenthood.
32:46
OK, take a step back because you said that was in 1965.
32:51
So Griswold versus Connecticut, the court case was in 1965.
32:54
OK, the Comstock laws that banned contraceptives were passed in the 1870s.
33:00
OK, that was the part I was unclear.
33:01
OK, yeah.
33:03
And nobody really cared.
33:04
I mean, everyone was like, yeah, contraceptives prevent promiscuity.
33:07
But there wasn't there was not a serious desire to overturn the Comstock laws up until about the 1920s and 30s, when Margaret Sanger and Planned Parenthood really started to take issue with this.
33:20
Margaret Sanger, for the listener, is the founder of Planned Parenthood.
33:25
She is an avowed eugenicist, was.
33:29
Eugenics means weeding out the undesirables in the human race.
33:33
And I bite my tongue to say such a detestable phrase, especially for two people on this podcast who believe in the image of God.
33:41
Margaret Sanger believed that the inferior people ought to be wiped out, should be forcibly sterilized, not permitted to procreate, that kind of thing.
33:49
And there were not to interrupt you, but there were eugenics programs that were practiced here in the United States.
33:57
There were people who were forcibly sterilized and there were things that happened that many people are unaware of and would call conspiracy theories, but actually did take place here and not only in the United States, but other other places around the world.
34:11
So eugenics has been something that has been practiced.
34:15
Absolutely.
34:15
Yeah.
34:17
So Sanger and Planned Parenthood began openly flouting these Comstock laws.
34:24
Now, by the time of the 1940s and 50s, the Comstock laws were not really enforced.
34:31
Kind of like adultery laws, a lot of those laws that are still on the books in some places, but they don't get enforced.
34:37
No DA brings charges on those.
34:40
That's right.
34:40
Yeah.
34:41
But Planned Parenthood wanted a confrontation.
34:46
They wanted a court case and they got it.
34:49
The executive director of Planned Parenthood of Connecticut, a lady by the last name of Griswold, I believe she bought or sold some contraceptives and it was like the TV cameras were there and the media was there.
35:02
You know, she handed the guy the dollar bill and the cop went and put the handcuff on.
35:07
Like it was it was not a show.
35:08
I don't mean to say a show trial, but it was it was designed to provoke a court challenge.
35:12
It wasn't like a normal judicial proceeding.
35:16
It goes through district court.
35:17
It goes to appellate court.
35:18
The Supreme Court takes it up.
35:20
Now, this is the Warren Court.
35:21
And what you need to know about the Warren Court, this is chief under Chief Justice Earl Warren.
35:26
I just the most left wing court the United States has ever seen.
35:30
The Warren Court had the belief that the judiciary could be used to fundamentally transform the United States in ways that the traditional political branches could not.
35:40
And so I think that there are people who still believe that.
35:43
Absolutely.
35:44
Yeah.
35:46
So way back in the 1920s and stuff, and even earlier than that, the Supreme Court had been a political tool actually of the right.
35:56
So in opposition to FDR's programs of government spending and expansion, the Supreme Court invalidated the majority of those on the grounds that this was an overreach of federal power.
36:09
Now, we can argue whether it was or whether it wasn't, but these were laws passed by super majorities of Congress and signed by the president.
36:16
And the Supreme Court basically made a hobby of knocking them down.
36:21
It is at least understandable that some would view that as judicial overreach.
36:26
The problem is that by the 60s, the shoe was on the other foot.
36:29
So Griswold versus Connecticut comes before the Supreme Court and the Supreme Court writes one of the most garbage pieces of legal opinion that has ever existed.
36:39
They say, OK, Connecticut bans the sale of contraceptives.
36:47
Is that a violation of the United States Constitution? And they say, well, no, contraceptives are nowhere in the United States Constitution.
36:57
But there might be a right to privacy.
36:59
Well, where's the right to privacy in the Constitution? It's not there.
37:02
There's not one.
37:03
You have the Fourth Amendment guarding against unreasonable searches and seizures.
37:07
You have the Third Amendment, which says the government may not quarter troops in your house.
37:12
You have the Fifth Amendment and the Fourteenth Amendment, which both say you may not be deprived of life, liberty, and property without due process of law.
37:19
And so the majority in Griswold grabbed portions and they actually say this in their opinion.
37:27
We cannot tell you where the right to contraceptives are in the Constitution.
37:31
But what we can say is there's a generalized right of privacy that we find in the first, third, fourth, fifth and 14th Amendment and maybe the ninth.
37:40
And we're not exactly sure where it is, but it's in there somewhere.
37:43
No, seriously.
37:43
They say this in the opinion.
37:46
The justice who wrote, it was William O.
37:48
Douglas, I believe, wrote the opinion.
37:49
He said, well, you have the Fourth Amendment and the Fourth Amendment has penumbras, like shadows, basically.
37:57
And so if you have the Fourth Amendment here and there's a shadow of it down there, then emanations from that shadow encompass the right to contraception.
38:07
What on earth does that even mean? I mean, Griswold is one of the most garbage opinions ever because it grounded itself in the fact that we don't know where it is in there.
38:18
It's just probably in there somewhere.
38:20
And so we're going to say it exists.
38:21
And by a seven to two vote, the court struck down Griswold, struck down Connecticut's Comstock law.
38:30
And the fact that it was a seven to two vote, I mean, it wasn't even close.
38:35
No, the Warren court was extremely liberal in that way.
38:39
The Warren court saw the Constitution not as a document to be interpreted, but something you pay lip service to in order to get what you need.
38:48
Again, to make a biblical exegesis parallel, it'd be like saying, Keith, you have to wear a three piece suit all the time, no matter what.
38:54
And you say, OK, where does the Bible say that? And I say, well, you see shades of it in Genesis, Judges, Philippians and Revelation.
39:03
I can't point to you exactly, but it's in there.
39:06
You'd be like.
39:08
No.
39:09
Yeah.
39:09
So anyway, that's what the court decided in Griswold.
39:12
There's another one.
39:13
The Trinity is three.
39:15
Therefore, three is the sacred number.
39:17
Therefore, we are a three piece suit.
39:19
Yeah, that's it.
39:20
That's basically it.
39:21
Yeah.
39:21
There's another case that came a few years later called Eisenstadt versus Baird.
39:26
It was basically the same as Griswold.
39:28
But it's important to note Griswold forbade the sale of contraceptives full stop.
39:37
Then another state said, OK, well, we're going to restrict it to married couples because at least then there's no incentive for promiscuity or adding contraceptives to a married couple does not incentivize promiscuity.
39:49
So we're going to restrict it to just that.
39:52
The Supreme Court invalidated Eisenstadt versus Baird by citing the precedent from Griswold.
39:58
And they said, well, the 14th Amendment says everyone is covered under equal protection of the law.
40:04
So we can't treat with this right we just invented.
40:07
We cannot treat married couples and unmarried couples differently.
40:10
So therefore, Eisenstadt versus Baird, they struck down that law.
40:14
These two cases as a few other ones, and they were they're doing this garbage legal reasoning.
40:19
And then we get to the infamous one.
40:21
So in 1973, we get to Roe versus Wade.
40:25
Now, in Roe versus Wade, the stage has already been set for we don't care what the text says, we're just going to find something in there.
40:34
And the court begins to lean on a doctrine called substantive due process.
40:41
That's a mouthful of syllables.
40:43
But what it basically means is, well, let's talk about what first came about.
40:49
In 1857, there is the most infamous court case in Supreme Court history called Dred Scott versus Sanfield.
40:57
Now, I've heard I've heard of the Dred Scott case.
40:59
I've heard that.
41:00
Yeah.
41:00
Yeah.
41:01
Dred Scott versus Sanfield was a case in which a southern slaveholder owned a slave named Dred Scott owned a slave named Dred Scott.
41:12
He traveled to a northern state that forbade slavery with Dred Scott.
41:19
And then he Dred Scott sued, saying, I am now in an urban state.
41:26
And yes, we're residents of whatever state it was.
41:29
But the law that binds me to this man as property no longer applies right now.
41:35
And so in Dred Scott, Chief Justice Roger Taney, the worst Supreme Court justice that existed in that century, said.
41:44
The Fifth Amendment says may not be deprived of life, liberty or property without due process of law.
41:50
For us to deprive the slaveholder of his slave would be a violation of something called substantive due process.
41:59
There is no right to slavery in the Constitution, but we think that there should be.
42:06
And so he did not go through a due process of law.
42:09
It wasn't seized in in a hearing or whatever.
42:12
So and also black people aren't real citizens.
42:14
So Dred Scott, you don't even have permission to bring this case.
42:17
It was a dreadful decision.
42:19
That's where substantive due process started.
42:22
Another Supreme Court case in 1905 called Lochner versus New York was where there was a minimum wage standard imposed.
42:29
I believe it was a maximum hour standard.
42:31
It was a capping the work week for bakers or something.
42:34
And in that case, the Supreme Court invalidated the law.
42:38
And they said that, no, there's nothing in the Constitution that says you can work as many hours as you want.
42:43
But we think there should be.
42:45
And so we're going to invalidate this law.
42:47
And it was based on what they call substantive due process.
42:50
So they look at the 14th Amendment where it says no person shall be deprived of life, liberty or property without due process of law.
42:56
They say, well, liberty kind of means the ability to work as many hours as you want.
43:01
So if a law interferes with that, we're going to strike it down, even though it's not in the Constitution, we think it should be.
43:07
And so that sword came swinging back around in Roe versus Wade.
43:11
So in Roe versus Wade, the opinion is a piece of garbage legal reason.
43:16
It is dreadfully written.
43:17
I actually I have respect for opinions that go against what I think that are well written.
43:23
There were some during the Trump administration where I think President Trump made a good choice and the Supreme Court overruled that.
43:29
And then I read the opinion on a policy position I disagree with and I say wouldn't have voted that way.
43:35
But I see where you're coming from.
43:37
Roe versus Wade was not that way.
43:39
And Roe versus Wade, the court built a giant stack of poo out of these previous decisions.
43:45
Griswold and Eisenstadt and all this kind of stuff.
43:49
And they said, well, because of our penumbras and emanations of privacy doctrine, we're going to say that, yes, there was nothing in the in the Constitution about abortion.
44:02
But someone can't be deprived of life, liberty or property, but a due process of law and liberty kind of means maybe the ability to terminate an unborn child.
44:11
And so we're not going to let them take that away from any woman with anything, with any process of law.
44:19
It wasn't like we're going to make you go through like a court hearing.
44:24
And if you want to stop a woman from getting an abortion, you have to do it at a trial court with a jury.
44:28
No, they said there is no process of law by which a state may take that away.
44:34
Flew directly into the face of the 14th Amendment and said, this is it.
44:39
This is what we're doing.
44:40
And that was Roe v.
44:40
Wade in 1973.
44:43
What Roe v.
44:44
Wade did was three quarters of the states at that time outright banned abortion.
44:51
At the time Roe was handed down.
44:54
Some of them had started to liberalize a little bit and say maybe in the first trimester or under these circumstances or whatever.
45:00
What Roe did is it took a national standard of and the writers of this opinion, what has been said by even liberal analysts, they did the work of a legislature.
45:13
At the end of their opinion, it says under these circumstances, it is OK at this trimester, at this trimester and all these restrictions.
45:22
These are judges that did this, not senators or nothing in the Constitution has anything to do with this.
45:30
And these men said at this particular stage in the pregnancy, it's allowed at this stage.
45:35
It's not on this side of that line.
45:37
It's a violation of the 14th Amendment on this line.
45:39
It's not with no justification whatsoever for why that would be a horrible, horrible legal reasoning.
45:46
So that comes down and immediately every law in all of the states regulating abortion before 24 weeks is invalidated.
45:54
That was the line that they termed viability, because with medical technology in the 1970s, a fetus was very unlikely to survive if it was born before 24 weeks.
46:04
Modern technology, we've brought that line back a little bit, meaning the viability line is kind of arbitrary.
46:10
So that's Roe versus Wade.
46:13
The next stop on our grand tour of misery.
46:15
OK, stop right there.
46:18
Take a breath.
46:19
I just want to first of all, you're doing this completely without notes.
46:24
I'm assuming I don't you're actually you're doing this again on vacation.
46:30
You didn't write this down.
46:31
This is not from this is from the melon of Matthew.
46:34
It's right here.
46:36
I just I'm giving you a chance to clear your throat a little bit.
46:39
I can hear you.
46:40
I know you're you're you're having some difficulty.
46:43
But I just want to tell you how absolutely impressive it is that you're throwing these dates out and these things.
46:50
I'm just I'm proud of you.
46:52
I know that.
46:53
Thank you very much.
46:54
I think to say that just just to thank you for being my friend.
46:58
No, you're welcome.
47:00
You're welcome.
47:01
I'm reading the dissent in in Roe versus Wade because it was it was another 72 decision.
47:08
And in the dissent, one of the dissenting justices, I think it was Byron White, said.
47:14
To the majority, you may like the policy that you've created here, but this is nothing more.
47:20
And here's this quote.
47:20
This is nothing more than an exercise of raw judicial power.
47:24
You have abandoned your duty to the Constitution.
47:28
You have ceased being a judge.
47:30
You started being a policymaker.
47:31
You may like what you've done, but understand what you've done.
47:35
That's powerful because he said he said the policy you've created, their job is not to create policy.
47:43
Correct.
47:44
And job is to interpret the Constitution.
47:45
That's right.
47:47
So we move on a little bit.
47:49
Abortion remained incredibly contentious and numerous other ancillary issues popped up.
47:54
The Supreme Court kept knocking down any restriction on abortion before 24 weeks.
48:01
Then we come to 1992.
48:03
This is Planned Parenthood versus Casey.
48:06
So what is going on here? Well, Bob Casey, who at the time was the attorney general of Pennsylvania, sued Planned Parenthood.
48:16
Planned Parenthood sued him because he said he was going to prosecute abortions at some stage or other.
48:21
I don't remember what it was.
48:21
It was some particular some technical facet of abortion enforcement.
48:27
The case makes it all the way to the Supreme Court through the usual appellate levels.
48:33
And the court squishes out on it.
48:36
They act like cowards.
48:38
Planned Parenthood versus Casey.
48:39
Normally when you're reading a Supreme Court opinion, the summary is let's say it's a 5-4 decision.
48:45
It'll say five justices in the majority.
48:47
This, this, this, this, this.
48:49
Four justices in the dissent.
48:51
This, this, this.
48:54
Occasionally you have something called a concurring opinion, which is where a justice who votes with the majority in judgment, meaning I think this side should win, but has different reasoning for why.
49:07
So they say the right thing for the wrong reasons.
49:09
Basically, they say, I agree that they're right, but you guys are wrong about why they're right.
49:17
And then dissenting opinions can do the same thing.
49:19
A dissenting opinion can say, no, the majority is wrong, and here's why.
49:23
And then someone else can say, yeah, the majority is wrong, but that's not why.
49:25
And so they can do this.
49:28
Planned Parenthood versus Casey.
49:31
When it came before the court, four of the nine justices wanted to completely overrule Roe.
49:36
Just lock, stock, and barrel.
49:39
Roe is dumb.
49:39
Get rid of it.
49:40
I believe, and I'm going to, I'm going to get myself in trouble here.
49:44
I believe that was Clarence Thomas, Antonin Scalia, William Rehnquist, and I'm not calling the last one right now.
49:52
But anyway, they said Roe is stupid.
49:54
Get rid of it.
49:56
Two justices wanted it not touched at all.
50:02
And then three justices, that would be Sandra Day O'Connor, wrote the opinion there.
50:09
Three justices said, well, what if we tweak Roe a little bit? And the opinion they wrote was breathtaking in its arrogance because what it said was, all right, so Roe's trimester framework doesn't work.
50:22
We agree that this isn't working.
50:23
This is still an inflamed national issue.
50:26
We're going to sell it.
50:28
And they actually claimed in the opinion what we're doing here is going to settle this debate, and then we won't have to worry about it anymore.
50:35
In 1992, in their Supreme Court opinion, they said, don't worry, guys, we're going to take care of this once and for all.
50:41
We're going to settle it here.
50:43
And so what they said was we're not with the four who want to strike it completely.
50:48
We are not with the two that want to leave it alone.
50:51
So here's what we're going to propose.
50:53
Planned Parenthood versus Casey throughout Roe's trimester framework.
50:58
And it said a state may put restrictions on abortion before viability as long as those do not produce.
51:06
And this is the key phrase, an undue burden on a woman's ability to access abortion.
51:11
So, for example, a state could say, all right, you have to be performed by a doctor.
51:16
OK, and then they would say, well, the state has an interest in health care and making sure the woman is safe.
51:22
So that's fine.
51:24
But if the state said you have to have 10 doctors in the room, they would say that's undue.
51:29
It does not accomplish a purpose.
51:31
It does not improve safety.
51:32
You're really you're doing that just because you don't like abortion.
51:37
That was the standard handed down in Planned Parenthood versus Casey.
51:40
Justice Scalia famously remarked of that when he said, OK, well, I'm a lawyer.
51:44
I do lawyers work.
51:45
And so when I read the precedent says undue burden, I pull up my lawyer dictionary and I start flipping through and I look for undue burden.
51:51
I don't find it.
51:53
So then nine of us are sitting there at conference.
51:55
And this happened dozens of times when a state would introduce a new abortion restriction and we'd go around the table and say, what do you think? Is this an undue burden? I don't know.
52:03
What's your opinion? What do you think? That's not law.
52:06
I won't do that.
52:07
That's dumb.
52:08
So Planned Parenthood versus Casey had the idea of an undue burden standard where every restriction on abortion was judged about whether it accomplishes a purpose outside of just making it harder to get abortion.
52:23
Basically, it was like, yeah, we know you states want to get rid of abortion completely.
52:26
You can't.
52:28
We are affirming Roe.
52:29
There is a right to an abortion.
52:32
But, yes, you can regulate it, but you have to not do anything that's an undue burden.
52:38
That was the standard laid out in case.
52:42
So since Casey, there has been a case in 2005 called Gonzalez versus Carhartt.
52:50
And in that case, Congress actually passed something called the partial birth abortion ban, which banned the third trimester barbaric practice of.
52:58
And if you have young kids listening to this, you might want to cover their ears, parents.
53:04
The barbaric practice of partial birth abortion, wherein a baby was maneuvered into a position ready for delivery, and then a spike was driven into its head and a strong suction was placed upon it until the baby essentially collapsed into a tiny squished remnant of what it used to be beginning with its brain.
53:25
And then the rest was pulled out with a vacuum.
53:27
It is grisly.
53:30
It is abhorrent.
53:31
There is nothing that ancient Israel could have come up with that would be more wicked than that.
53:37
And Congress came together in a rare moment of bipartisanship and said, that's too far and passed a law that said you can't do that.
53:44
They were sued.
53:46
The United States was.
53:48
And by a 5-4 decision, the Supreme Court said, no, the partial birth abortion ban is valid.
53:52
We can we can allow Congress to do that.
53:57
Various other cases have come up.
53:59
There was one called June Medical, another one called Whole Women's Health versus Hellerstedt.
54:02
They all had to do with how many doctors, how many nurses do they have to be this many miles from a hospital? While this is going on, states like Missouri, Louisiana are using incrementalism.
54:15
They're trying to use zoning laws.
54:16
They're trying to use occupational licensing laws.
54:18
They're trying to do everything they can, knowing that Roe and Casey are there, but they're trying to basically make it as inconvenient as possible to operate an abortion clinic.
54:28
And Missouri, even like a year ago, Missouri only had like two abortion clinics left because they had just used the power of bureaucracy to just squeeze them down as much as they could.
54:40
So this all brings us to Dobbs.
54:42
So Dobbs is the case, Dobbs versus Jackson Women's Health Organization, that was handed down 36 hours ago in which the Supreme Court, a majority of the justices said Roe and Casey were wrongly decided.
54:56
They used a simple test.
54:58
They said, all right, if something is directly in the Constitution, we defend it.
55:02
It's not directly in the Constitution.
55:04
We might still defend it under the 14th Amendment.
55:07
But they used something called the Glucksberg test.
55:12
Glucksberg versus Washington, 1997, was a case about assisted suicide.
55:17
And it was, do you have the right under the federal Constitution to assisted suicide? Can a state ban that? The court ruled, no, you do not have a right to assisted suicide under the Constitution.
55:28
And what they said was, in order for a right that is not explicitly stated in the Constitution to be protected by the vague promise of liberty in the 14th Amendment, it has to be deeply rooted in the nation's history and tradition and consistent with the concept of ordered liberty.
55:46
That was their quote.
55:48
And so something like a right to travel, not explicitly in the Constitution, but has been seen all the way back to the founding, that in various cases, the Supreme Court has ruled that states cannot, like you cannot, if I drove north on I-95, the state of Georgia cannot tax me when I come in.
56:06
There's a freedom of travel implicit in the United States Constitution.
56:09
So that has been deeply rooted in the nation's history.
56:13
So the majority opinion in Dobbs is, let's take abortion, for instance.
56:18
Is it explicitly in the Constitution? No.
56:21
Okay, next question.
56:22
Is it protected by the 14th Amendment's guarantee of liberty? Well, let's see.
56:26
Is it deeply rooted in the nation's history and tradition and consistent with the concept of ordered liberty? In Justice Alito's opinion of the 100-page, roughly 120-page majority opinion, about 60 pages are devoted to this question because he's saying what is our standard? Our standard is deeply rooted in history and tradition.
56:46
It goes all the way back to the 13th century in England, and he goes through Blackstone, and he goes through Hall, and he goes through various other commentators, and he says that common law, abortion consistently has been a punishable crime.
57:00
Never mind required to be allowed federally.
57:04
He said it's been a punishable crime up until very, very recently.
57:09
In fact, he says when the 14th Amendment was ratified, the very 14th Amendment that is being used to defend this right was ratified.
57:18
Zero states permitted abortion unrestricted.
57:21
He said none of the people who voted for the 14th Amendment would have ever thought that it provided any kind of right to abortion.
57:31
And do you know what's astounding on that, Keith? The dissent said – and I'm actually going to pull the quote up because it was one of the most incredible things I've ever read – the dissent was ready for that.
57:42
And the dissent said – okay, this is quoting the dissenting opinion in Dobbs v.
57:50
Jackson Women's Health Services.
57:51
This is Justice Breyer, Sotomayor, and Katie.
57:55
The majority makes this change to abortion law based on a single question.
58:00
Did the reproductive right recognized in Roe and Casey exist in 1868, the year when the 14th Amendment was ratified? The majority says, and with this much we agree, that the answer to that question is no.
58:13
In 1868, there was no nationwide right to end a pregnancy, and no one thought the 14th Amendment provided one.
58:20
Their very next paragraph says, but we think it should.
58:26
Of course I think it should.
58:29
And that is the state of play in the opinion.
58:31
You have the majority doing this detailed historical analysis, taking the standard of deeply rooted in the nation's history and traditions, saying it's not there.
58:41
We can't say that it existed.
58:44
We can't say that this is good.
58:46
It has inflamed tensions all over the United States.
58:49
We're going to go back to the middle ground.
58:50
We're going to let California be California.
58:52
We're going to let Texas be Texas.
58:53
We're going to let Florida be Florida.
58:54
We're going to let Massachusetts be Massachusetts.
58:57
This is not a federal issue.
58:58
It is not in the Constitution.
58:59
Therefore, Roe and Casey saying that it is, are overruled.
59:03
We return the issue to the states.
59:05
And the dissenting opinion was basically a lot of, you shouldn't overrule precedents, even when they're bad precedents, and we like abortion.
59:12
Yeah.
59:14
Well, again, I wish I had an applause button.
59:17
I don't have the toys, but I would put in an applause right there.
59:21
That was an awesome explanation.
59:24
Thank you.
59:25
So with the last thing that you said, I want to draw that out.
59:32
So when you said let California be California, Texas be Texas, Florida be Florida.
59:36
So what you're saying is by striking down Roe and Casey, what has effectively happened now is the right or rather the laws regarding abortion now reside with the state and each state can choose to allow or not allow at the levels that they see fit.
01:00:00
Yes, that's correct.
01:00:02
So I'm going to speak from a legal standpoint.
01:00:07
Obviously, we have our own moral and scriptural convictions on this.
01:00:10
One extreme on this side is a federal ban on all abortions in all the states.
01:00:22
So no matter what California wants to do, the United States federal government says you will not commit abortion.
01:00:28
That's over here.
01:00:30
I call that an extreme based on legal jurisprudence.
01:00:34
I know what you and I would think about that, but we'll put it over here.
01:00:37
The other extreme is it does not matter what California or Florida wants.
01:00:41
They will allow abortions, whether they like it or not.
01:00:44
That's the Roe and Casey world.
01:00:46
Prior to Roe and Casey, each state was free to regulate abortion in the manner that their people and their legislatures and their governors saw fit.
01:00:54
And many states did not allow abortion.
01:00:56
You said at the time Roe was handed down, three quarters of states did not permit abortion.
01:01:02
Oh, three quarters.
01:01:03
OK, so three quarters.
01:01:04
Yeah, three quarters.
01:01:05
Yeah.
01:01:07
And there's some nuance in there like they did this circumstance and maybe in this trimester or whatever, like they were starting to be some play in the joints a little bit.
01:01:16
But but three quarters of states banned abortion in a manner that Roe overruled, let's say.
01:01:22
So their abortion bans were too strict for Roe's judicially invented framework.
01:01:31
So on the one hand, you have federal a federal ban on all abortions over here.
01:01:37
You have a federal, which is what Roe and Casey did.
01:01:41
Let's say a federal bar on restrictions, meaning a federal a federally enforced permission to have an abortion.
01:01:49
Yeah.
01:01:51
What the listener needs to know and what has been fear mongered out there is that, you know, abortion is now illegal everywhere.
01:01:57
No, it's not.
01:01:59
What has happened is the Supreme Court has removed the federal boot on the neck of the states and has said the states may now independently regulate this.
01:02:11
Justice Kavanaugh on a concurring opinion in Dobbs said the Constitution is neutralized to the question of abortion.
01:02:17
Therefore, this court will be as well.
01:02:19
If California wants to do this or Texas wants to do that, they get to do that.
01:02:24
Yeah.
01:02:24
And as a as a as a state's rights advocate, as I am, I don't know if people know that, but I'm a state's rights advocate.
01:02:32
I do believe that the states should have that power to make that decision.
01:02:37
Yeah.
01:02:37
Yeah.
01:02:38
So from a from and the thing is federalism, which means the idea that there are powers that are separated between the federal and the state level, the federal government gets some powers and the states get some powers.
01:02:50
That's the only way that this republic was ever designed to work, meaning that at your local level, your local leaders can have enormous power and influence.
01:02:58
But then when you move up to your state level, there should be a little bit less.
01:03:01
When you move up to the federal level, the idea was there is a minute number of policies that everyone in the United States can broadly agree on.
01:03:11
And so it would be very bad if the federal government were to take a large role, because then whoever owns the federal government is able to cram down that view of governments upon everybody.
01:03:23
So the founders understood that we cannot empower a federal government more than necessary national defense, coining money, regulating trade.
01:03:32
That's about it.
01:03:33
I was just fixing to say, yeah, you beat me.
01:03:38
Now, the one thing I was going to look smart, you just nailed it because it's well, it's the common currency, a unified defense and interstate trade.
01:03:48
Those are the those are the major places where the federal government has its importance.
01:03:54
Yes.
01:03:54
I would say not the only, but those are the these are the this is how our founding fathers saw those.
01:03:59
I remember those three specific things.
01:04:01
See, I was going to be smart for half a second.
01:04:02
You nailed it first.
01:04:05
Forget like like people forget Kansas and Missouri literally sent their militias to fight each other at various stages leading up to the Civil War.
01:04:15
Like we had states almost an active war with each other.
01:04:20
Such was.
01:04:21
And in the Civil War, it was never I fight for the United States.
01:04:24
It was that's the 54th Alabama and that's the 18th Massachusetts and regiments and whatever.
01:04:30
And everyone was fighting for their state in a loose collection of other states and all that.
01:04:34
Yeah.
01:04:34
And there was there was an argument that the state flag should fly above the American flag.
01:04:39
Yeah.
01:04:40
Because because we are Floridians first.
01:04:43
Yes.
01:04:43
We are Americans second.
01:04:44
And that's yeah.
01:04:46
And as you have international conflict, World War One, World War Two, the Cold War, a unified national identity becomes very useful.
01:04:55
And you it is I'm not going to say it's right, but it's useful to think of yourself as an American before Floridian because Florida cannot defeat the Soviet Union.
01:05:03
We needed everybody.
01:05:04
And so in that sense, when there is a broad national enemy, Nazi Germany, Soviet Union, whatever, a strong, unified national identity made a lot of sense.
01:05:14
But without that glue, holding things together, when you have a powerful federal government that is saying imposing its will down upon the states, either through taxation and grants, fiscal policy, Supreme Court decisions, whatever it is.
01:05:28
And what it does is it inflames tensions when you force California to live by the same rules as West Virginia.
01:05:34
Those people don't like each other very much.
01:05:37
And so it's like a different world.
01:05:39
Honestly, I don't travel a whole lot.
01:05:41
I don't fly well.
01:05:44
People my size tend to not fly well.
01:05:48
But I'm over six feet tall.
01:05:51
I'm a pretty big guy.
01:05:51
I don't like to be on.
01:05:53
And I don't like to be in a hollow metal tube with wings on it under the command of a guy named Bob who's flying at 500 miles per hour without my everything in his.
01:06:01
Anyway, doesn't matter.
01:06:02
I don't like to fly.
01:06:03
I don't like to.
01:06:04
So I'm I've not I've not been to a lot of places.
01:06:07
I'm thankful for people who travel and do the things, missionary work and things are wonderful.
01:06:13
But when I do go to other states and I do visit other places, sometimes it feels like a whole other country.
01:06:19
Yeah, it feels like a whole different place.
01:06:21
And people do that and they come here and they and it's like they're from another world.
01:06:27
That was the original promise.
01:06:29
I mean, there was actually a debate in the Constitutional Convention.
01:06:32
Are we going to call it the United States of America or these United States of America? Now, think about that linguistic difference there.
01:06:41
The first one kind of has like a compact unit, whereas these United States is referring to just a union.
01:06:48
You know, the people versus these people.
01:06:52
And so not to wax poetic about the good federalism, but back to Rowan Casey and Dobbs.
01:06:59
What this means is that the most contentious I think this is first of all, I'm all about saving unborn babies.
01:07:09
Like just that's a good thing.
01:07:11
But from a survival of the country standpoint, from a like this whole, well, we need to have a red and blue state split.
01:07:18
It's not going to happen.
01:07:20
It's not because the Union and the Confederacy were geographically separated.
01:07:24
The problem is in Florida, we have blue and red counties.
01:07:27
Yeah.
01:07:28
And within those counties, there are areas that are blue and red.
01:07:31
And it turns out that if there's a precinct a mile away from me that voted 80 percent for Joe Biden, I don't hate them enough to want to live in another country.
01:07:40
That's just that that is not practical.
01:07:43
So if you want to bring the temperature down, if you want to make it easier for people to live with one another, do you want to add harmony to things and not politicize every single issue, you would want the decision that you got in Dobbs, which is to say not a federal issue.
01:07:59
We are going to open this valve and let the steam pressure out.
01:08:03
So just cool things down a little bit and say, you guys get to do what you want and you guys get to do with you what you want and it'll all be OK.
01:08:13
And is there a possibility that at some point fire will rain down from the sky upon California? It already does basically every summer.
01:08:22
There's actually a Babylon B article.
01:08:25
California passed some law basically saying that.
01:08:30
Gosh, it was something to do with pedophilia that was just vile.
01:08:33
It was something like, well, maybe we're going to change the age of consent to 14 or something like that.
01:08:38
I think they under some weird I think they passed it or like it made it where if you if you had some sort of relations, it wasn't required that you reported something wasn't prosecutable or the penalty was a day of community service.
01:08:52
They basically de facto allowed something like that.
01:08:55
The Babylon B article said state that just legalized pedophilia.
01:08:59
I can't figure out why God keeps setting them on fire.
01:09:02
Yeah, yeah, exactly.
01:09:04
I mean, would not be surprised that the San Andreas Fault just opened up and it fell into the sea.
01:09:09
I mean, God's judgment would be just.
01:09:13
Absolutely.
01:09:13
But, you know, as Luke tells us or Jesus tells us in the Gospel of Luke, unless you repent, you will all likewise perish.
01:09:20
So we have to always keep from not standing too high on our prideful boxes to say absolutely.
01:09:26
Every one of us needs to repent.
01:09:28
Every one of us needs to trust Christ.
01:09:30
Absolutely.
01:09:30
Yeah.
01:09:31
There's one I know we probably want to draw to a close pretty soon.
01:09:34
There's one other vagary of the Dobbs opinion that was interesting.
01:09:38
Justice Thomas, Clarence Thomas, joined the majority opinion.
01:09:43
She was one of the five struck down Roe and Casey in his concurrence, though.
01:09:49
He said, yeah, we should strike down Roe and Casey because they're hot garbage.
01:09:53
But in addition to that, you know what cases rely on the very same reasoning? Obergefell versus Hodges.
01:10:02
Yes.
01:10:03
2015 case, which stated that, again, it stated that no state may block a same sex union from being accorded the same rights and privileges of a marriage.
01:10:16
Again, again, if Obergefell versus Hodges was overturned tomorrow and it won't be.
01:10:22
Yeah, sadly.
01:10:24
But if it were overturned tomorrow, Florida would be free to allow or deny homosexual unions that are termed marriages.
01:10:34
California would, of course, do what California is going to do.
01:10:36
But right now we have a unified national standard enforced because of that.
01:10:40
Clarence Thomas also said Lawrence versus Texas 2003, a case that Texas had laws against sodomy, homosexual conduct.
01:10:50
And in Lawrence versus Texas, the Supreme Court said on the same theory as Roe, this 14th Amendment gobbledygook.
01:10:57
It's not there, but it should be that that was unconstitutional.
01:11:01
You have the right to have sex with whoever you want to in the privacy of your own home, barring pedophilia, basically, which we'll see how long that's not going to last.
01:11:10
Yeah, there were a number of other cases we won't.
01:11:12
He did mention Griswold.
01:11:14
He said all of this came from the garbage opinion that was Griswold.
01:11:17
And so there's been a lot of talk about Clarence Thomas wants to forbid contraceptives.
01:11:21
No, Clarence Thomas wants the Constitution to do what the Constitution is supposed to do.
01:11:26
And you might think it's a very bad idea to ban contraceptives.
01:11:30
That's fine.
01:11:31
Persuade your fellow citizens and vote on it.
01:11:33
Don't let the Supreme Court set this as a federal thing based upon some garbage shadow penumbra and emanations that we see off of the 14th Amendment's, you know, whatever.
01:11:46
So Thomas's opinion was actually the best.
01:11:48
But now it's a concurrence.
01:11:50
Only he joined it.
01:11:51
It's not controlling, but it was fun to read.
01:11:54
And I agree with it.
01:11:56
Yeah.
01:11:57
So that's the state of play.
01:11:58
That's what happened.
01:11:59
And you and I have never lived in a world without Roe.
01:12:02
You said you were born in 1980.
01:12:04
I was born in 1994.
01:12:06
We have never known a world in which a state is free to set its own abortion policy.
01:12:12
Yeah, I'm very interested in what's going to happen next.
01:12:14
That was that was going to be my next question.
01:12:16
And as we draw to a close, I have a couple of rapid fire questions.
01:12:18
You can get a quick answer.
01:12:20
One, what do you think happens next? What happens next? Well, immediately the states and I'm going to name off as fast as I can.
01:12:27
The states of Oklahoma, Texas, Louisiana, West Virginia.
01:12:33
There's been a couple more had passed something called trigger bans.
01:12:36
And I'll be quick and brief as I can on these.
01:12:39
The legislatures of those states acknowledge that if they passed a ban on abortion, it would immediately be struck down based upon the precedents of Roe and Casey.
01:12:46
So what they did is they said abortion is illegal in the state.
01:12:50
Asterisk.
01:12:51
This law will become effective the day the Supreme Court overturns Roe versus Wade if such a thing happens.
01:12:57
Nice.
01:12:57
And this determination will be made by the state governor or attorney general.
01:13:02
And so Missouri activated its trigger law yesterday, right after, like within an hour of the opinion being released.
01:13:09
The state attorney.
01:13:10
So it's illegal to have an abortion in Missouri? All abortion in Missouri is illegal.
01:13:16
All abortion in Texas is illegal.
01:13:17
All abortion in Louisiana is illegal.
01:13:19
All abortion in West Virginia is illegal.
01:13:21
And I could name off a few more states.
01:13:23
But not in Florida.
01:13:25
Not in Florida.
01:13:25
OK, so let's get to that.
01:13:27
Who are we supposed to call? That's next rapid fire question.
01:13:29
What do we do? Florida passed a 15 week abortion ban in its last legislative session that was in violation of Roe and Casey.
01:13:36
But it was meant to match Mississippi's ban that was going up against the Supreme Court.
01:13:40
I think it was a first step.
01:13:42
I think we need to go further.
01:13:42
If you would like to see a total abortion ban in the state of Florida, then you need to figure out who your local Florida state representative in the state house and in the state Senate is.
01:13:58
For me, my state representative is Cindy Stevenson, where I live.
01:14:02
And my state senator is Travis Hutz.
01:14:05
Now, I happen to know that you can go just Google who is my state representative.
01:14:08
You can figure it out really quickly.
01:14:09
You need to respectfully but passionately let them know that now that the state is free to regulate this, you as a concerned citizen and voter believe in the sanctity of life and you believe that Florida should join and list off the other states.
01:14:23
These states in banning the practice of abortion because you believe it's wicked, barbaric and all the other things and let them know.
01:14:30
Awesome.
01:14:32
You are much more in tune with what's going on with the Supreme Court than anybody else I know.
01:14:38
So here's a rapid fire question on that.
01:14:42
Are there other things that are brewing that you are aware of that could turn this around and make this bad on our side? Or should we rest? And when I say rest, I don't mean stop fighting.
01:14:58
What I mean is a lot of guys I know yesterday were – we know the fight is still going on, but we're going to stop and thank God where we are now.
01:15:08
We're going to raise a glass and praise the Lord and say toast to the fact that Roe is no more.
01:15:17
But is there other things looming out there that we would say, okay, well, here's the next battle on this front? Not the Obergefell thing, but in regard to is there another Roe versus Wade out there that's waiting to be heard? Great question.
01:15:35
Specifically from the United States Supreme Court, no.
01:15:37
The next front will be various states are trying to forbid leaving the state to procure an abortion.
01:15:43
Missouri is looking into that.
01:15:45
They're saying it is illegal to leave the state to get an abortion and come back.
01:15:48
Have you seen the camping meme? Yes, I have.
01:15:51
Yes, people are using code words.
01:15:54
Yeah, I posted on Twitter.
01:15:55
I said, if it's not shameful and it's not wrong, why are you using code? Yeah.
01:16:01
For the listener, people are saying, which states are really good for camping right now? And it's a euphemism for abortion.
01:16:07
And I'll take you camping, and I'll pay your expenses.
01:16:11
We'll play women empowering songs on the way to our camping trip, and I will never ask you any questions about why you want to go camping.
01:16:18
And I'm reading this, and I'm thinking, this is the kind of thing that a groomer says to a kid that they're willing to molest.
01:16:28
These code words, it's so insidious.
01:16:31
Yeah, it is.
01:16:32
So the next challenge will be, can states prohibit the departure of their citizens to another state for an abortion? On a constitutional level, that is a very shaky case.
01:16:43
I don't think that's probably going to be allowed.
01:16:45
In fact, in a concurrence in Dobbs a day and a half ago, Justice Kavanaugh said, yeah, probably not.
01:16:53
He said, I voted to strike down Roe v.
01:16:55
Casey, but I probably wouldn't go that far.
01:16:58
So now what else comes down the pike? Well, of course, there are calls to codify Roe v.
01:17:04
Wade into law, which is kind of funny because now it's dead.
01:17:06
So have fun with that.
01:17:08
But there is a federal push to have a federal ban on abortion laws in states.
01:17:16
Basically, Congress would pass a law that says no state may restrict abortion.
01:17:20
Here's the problem.
01:17:22
The Supreme Court just said that the Constitution does not give the federal government permission to restrict abortion or to interfere in abortion law.
01:17:34
So if the Congress wants to pass that, the Congress has to look at the Constitution and say, by what passage do we have the authority to do this? And the Supreme Court just said you don't have it in the 14th Amendment.
01:17:44
So it would be if they abolish the filibuster and the Senate passed it and the House passed it and the president signed it tomorrow, which they want to do, but they won't.
01:17:55
The question would then be, by what authority in the Constitution are you doing this? And I don't think it would pass.
01:18:02
I think the Supreme Court would strike that down, too.
01:18:04
Yeah, we go right away just as quick.
01:18:07
All right.
01:18:07
Last thing we do, we both got church tomorrow.
01:18:11
I don't know.
01:18:12
Are you being out of town? You're going to be visiting another house of worship? I will probably be attending with my brother-in-law, if not going to breakfast with Aaron to see a friend that we haven't seen in many, many years.
01:18:23
So I'm not quite sure yet.
01:18:24
Well, we'll pray for your safe return from the Peach State, come back to the Sunshine State.
01:18:30
Yes, that's right.
01:18:31
And so the last thing as we begin to draw to a close, you had said that when we're looking at this, we get the federal abortion, the two walls.
01:18:44
And I think you're right.
01:18:45
I think you're right.
01:18:46
You gave us some good advice on what to do about contacting our local representatives and getting a hold of them.
01:18:52
And certainly I think that is a right thing to do.
01:18:56
And certainly something that I'm going to be doing is reaching out and saying this is what we should be doing.
01:19:01
We should be abolishing these things.
01:19:04
How do you think this is going to affect, though? We're not too far away from the midterm elections that are going to be in November.
01:19:15
Am I correct? That's right.
01:19:17
Yeah.
01:19:17
Midterms are first week in November.
01:19:19
And that is going to possibly readjust because right now we know we have a blue executive branch and a blue legislative branch.
01:19:29
Do you think that this is going to strengthen the heart of the blue or do you think that this is going to strengthen the heart of the red? How do you think this is going to play out on a national level when it comes to the vote? It's a great question.
01:19:49
It's one that's been talked about a lot.
01:19:50
Some people have been saying, well, since the Supreme Court did this, this is going to energize Democratic turnout to do this or that or the other.
01:19:57
I don't agree.
01:19:58
And here's why.
01:20:00
For the first time, this is the white whale for Republicans.
01:20:05
Republicans have been chasing this mail truck for 49 years and we finally caught it.
01:20:11
You have generations of people that have been demoralized.
01:20:14
Doesn't matter.
01:20:15
They're never going to do it.
01:20:16
You know, whatever.
01:20:17
They did it for the first time.
01:20:19
You're going to have a lot of Republican voters say, wow, my vote really does do something.
01:20:24
And they're going to start going and voting.
01:20:25
No one can say that as much as people hated Donald Trump.
01:20:30
And I know even Republicans, some of them held their nose and pulled the button.
01:20:34
But that was me.
01:20:36
But no one can say that the putting for four years, Donald Trump was in office.
01:20:42
He was able to put two Supreme Court justices into place.
01:20:46
I'm sorry.
01:20:46
Three.
01:20:46
Yeah.
01:20:47
OK.
01:20:47
I knew you'd correct me if I was wrong.
01:20:51
Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
01:20:53
I forgot about Neil Gorsuch.
01:20:54
OK.
01:20:55
So, yeah, Kavanaugh and Amy Coney Barrett.
01:20:57
Those three are certainly providentially placed to have done what was done this week.
01:21:05
And therefore, what you just said, our vote does have an effect.
01:21:09
It does.
01:21:09
It does.
01:21:10
Donald Trump won his election in 2016 by a combined total of about 50,000 votes.
01:21:17
Had you taken 10,000 away in Michigan, I think it was 20,000 in Pennsylvania.
01:21:21
And then another 20,000 away in maybe Wisconsin or something like that.
01:21:26
He would have lost that election.
01:21:28
It was 50,000 votes spread across three different states that won him that election.
01:21:33
I've said before, the best the best thing Donald Trump accomplished in his presidency was giving us four years of Hillary Clinton not being the president.
01:21:43
And whatever else happened, the Supreme Court has been changed for the better in that regard.
01:21:51
What does this do for the midterms? Yes, it will energize some Democratic voters.
01:21:57
But here's the thing.
01:21:58
In the polling, the ones who list abortion as their top one or two issues are consistent voters anyway.
01:22:03
Nobody that has abortion at issue number seven is going to vote all of a sudden now in the polling.
01:22:11
Here's what you'll see, listener.
01:22:13
Over the next probably month, you'll see headlines about Democrats getting energized.
01:22:18
And abortion was the fourth most important.
01:22:20
Now it's the most important in the CNN poll or whatever.
01:22:23
But watch it.
01:22:24
Watch it through July.
01:22:25
Watch it through August.
01:22:26
Watch it through September.
01:22:27
It'll do this.
01:22:28
One last nuance on that.
01:22:31
One pollster is doing a time series poll where he pulls the same thousand people every month on a particular set of issues on the Democratic side.
01:22:41
This group, what's your what's the number one concern you have that you're voting on? Three months ago or two months ago, it was Ukraine.
01:22:51
Last month, it was gun violence.
01:22:53
This month, it's abortion.
01:22:55
He said they're following the fad.
01:22:57
When you see abortion surge up to the top of the poll, it's like it's the number one issue.
01:23:02
It's people reacting to what they see in the headlines at that particular time.
01:23:06
So, no, I think that at worst, the Republicans who were predicted to sweep the House instead of 240 seats, they might get 237.
01:23:16
I think you might you might see a little bit of something like that, but not much at all.
01:23:22
Well, brother, I again want to thank you for being on the program today and enlightening me, enlightening our listeners and putting together the pieces, which I know for many people were probably just moving around in our heads.
01:23:32
And now we have a little bit more clarity on what has happened and maybe what will be coming next.
01:23:38
So thank you for visiting with us while you were visiting with your family.
01:23:43
Absolutely.
01:23:43
I'm glad to do it.
01:23:44
And anytime someone says, would you please just nerd out on the Supreme Court for an hour? Where do I sign up? So I'm all about it.
01:23:51
Absolutely.
01:23:52
Well, I want to thank you again for being here.
01:23:54
And I want to thank you, listener, for being a part of today's program.
01:23:57
I hope this was encouraging, enlightening and educational.
01:24:00
And I'm sure that it was.
01:24:01
I want to remind you also that this show comes out every Tuesday.
01:24:05
We also have some weekend additions.
01:24:06
This is going to be a special weekend edition because of what happened with the Supreme Court.
01:24:10
But keep a watch out every Tuesday.
01:24:11
We put out a new program.
01:24:13
Also, if you're interested in learning more about the program, you can go to our new website.
01:24:17
We have a website, calvinistpodcast.com.
01:24:20
And if you want to send me a message and ask me a question for me to address on a future episode or for me to have another guest on that I've had, Mr.
01:24:28
Matthews, one of my most consistent guests and would love to come back again.
01:24:32
And you can send us an email at calvinistpodcast at gmail.com.
01:24:37
Thank you again for listening to Conversations with a Calvinist.
01:24:40
My name is Keith Foskey, and as always, I've been your Calvinist.
01:24:44
May God bless you.