America After Roe: A Roundtable
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This is honestly. Few decisions could bring about so much joy from some Americans. And sadness from others. You can't make a choice.

This is insane. As the Supreme Court's decision to overturn Roe v. Wade. Abortion bans! Abortion bans! Illegitimate! Illegitimate! The Supreme Court! The Supreme Court! Illegitimate! Illegitimate!

I've had an abortion. I'll speak about that openly. I was 19 years old. I still sit with the grief of that. I sit with the shame of that. It's very nuanced. It doesn't mean if we make that choice, it doesn't mean we're happy about it. But at least we had the opportunity. I didn't have the funding to take care of a child the way I wanted to. I didn't have the opportunities that a lot of these people have to take care of their kids.

Human life is sacred and it comes with dignity and so we think human life begins at conception and human life is sacred and human dignity should be protected in all its forms.

— Depending on where you stand on the abortion debate — This is part of the Republican Party's dark vision for America. They want to roll back every possible right that has been earned over the decades. It is an anti-woman agenda. — The Supreme Court either just rolled back women's rights by 50 years — We're not going back.

and we're dang on sure not going to be treated as property. — Where they just corrected an egregious judicial overreach and handed the abortion debate back to the voting public, where it always belonged.

But this is not about the right to choose. It's about state to state to make their decisions. I'm excited, but we all, as if you can see the celebration, but we all know this is not where the work ends. This is where it begins. Because from anyone you can ask, this is what we'll be working for for the rest of our lives to make abortion illegal, unthinkable, and unnecessary. Shut it down!

For today, a deep and honest conversation with views from both the pro-life and pro-choice sides of this debate about the decision itself, what it means for the country, and what the implications practically and legally will be in the long term. My guests are Catherine Mangu-Ward, editor-in-chief of Reason Magazine and co-host of the Reason Roundtable podcast.

Bethany Mandel, columnist and contributing writer at Deseret Magazine and author of the children's series Heroes of Liberty. And because of the subject at hand, it bears mention, they're both mothers. And joining them as a special guest is legal scholar and head of the National Constitution Center, Jeffrey Rosen. Jeff is the author of many books, including most recently Conversations with RBG. The LA Times called him the nation's most influential legal commentator.

The four of us not only discuss the various ways to understand the weight of this decision and the dissent, but we get into the nuances of the abortion debate. We talk about why America doesn't have a national law like Germany or France, and whether Americans are right to be worried that gay marriage and contraception could be next. Stay with us. ♪

Hey guys, Josh Hammer here, the host of America on Trial with Josh Hammer, a podcast for the First Podcast Network. Look, there are a lot of shows out there that are explaining the political news cycle, what's happening on the Hill, the this, the that.

There are no other shows that are cutting straight to the point when it comes to the unprecedented lawfare debilitating and affecting the 2024 presidential election. We do all of that every single day right here on America on Trial with Josh Hammer. Subscribe and download your episodes wherever you get your podcasts. It's America on Trial with Josh Hammer. Thank you all so much for being here today and joining me in thinking through this subject.

Before we get into the legal aspect of the Dobbs case, Catherine and Bethany, I'd love if you could give me a bit of a gut check here.

How are you feeling a few days after this ruling, and what are you hearing from the people who share your general perspective on the abortion debate? Bethany, let's start with you and those who identify as pro-life. Yeah, I mean, I'm definitely wishy-washier on the pro-life issue than most of my sort of compatriots in the conservative movement. I think that...

I'm far more sort of moderate than a lot of folks. But I think that there's a lot of sort of relief and also vindication that the long game has been played for decades and people's

on voting, especially after the first Trump election, have been vindicated. And they said, I'm voting for the Supreme Court. I'm not voting for Donald Trump. And they were absolutely vilified, even by people on the right, myself included. I thought it was an absurd reason to vote for Donald Trump, and it would not bear fruit in this way. And I could not have been more wrong. And for me personally, I'm happy to have been wrong. And I'm glad that they had the faith to

that we would get to this moment. And I'm personally very pleased. And I think that that feeling is shared pretty universally among the conservative movement.

You're someone that's gone to Right to Life marches in Washington, D.C. I imagine you're on, we talk a lot on places like WhatsApp and Signal. I imagine that you're on groups of people that are talking and celebrating. What's kind of the tenor of those conversations? There's just, you know, unmediated joy as far as this decision goes. And a little bit of frustration that the message has been, well, now the pro-life community has to support women. Because people that I know in the pro-life community have done nothing but

And they feel as though their efforts have not been publicized. They have not been paid attention to. But there's been support for pregnant women through crisis pregnancy centers for decades. And there's also some frustration that there's been some pushback, you know, well, now the Republican Party has to be pouring money into government programs for pro-family sort of

that might not, and in my opinion, probably will not actually support women and support families. I mean, we're conservative for a reason. We think that government isn't the solution to all of our sort of societal problems. And so,

I think that there's some frustration that people are feeling in the conservative movement that we have to justify our opposition to abortion by expanding the role of government, which we are against, not just because we're cheapskates, but because we don't think that it's effective or helpful to the people that they claim to want to help.

Catherine, let's go to you. You know, how are you feeling about this ruling? What are you hearing from people who believe in abortion rights for women? Yeah, as a libertarian, we sometimes describe ourselves as being pro-choice everything. And I am certainly pro-choice when it comes to abortion. I'm quite comfortable with that label. And, you know, we've seen, because it's getting covered quite well in the mainstream news, how people who hold that view are reacting differently.

I will say I have this in common with Bethany, which is that I didn't really quite think this was going to happen. And I think that that's worth examining. I don't actually think it's true that there were kind of lies told in the confirmation hearings. I think that that's actually a willful misinterpretation. But I do think that I believed this court would be more moderate and lean more into stare decisis.

That didn't happen. And so, you know, to the extent that I was shocked that happened when the opinion leaked, not this week, but I did certainly experience some surprise. And then also like Bethany, my mind kind of went directly to, well, what does enforcement look like? That's really the place that I worry. Of course, I have concerns about the ramifications for how we think about constitutional protections for rights and the role of the court. But I think

Perhaps most immediately what we are going to have to grapple with is impacts on a lot of our other rights, including freedom to travel, freedom of speech, freedom of association, and due process, because law enforcement is not going to handle this gracefully. I think that we can all agree that there will be bumps in the road, and of course those bumps will be

hugely consequential for individuals. I think that that is a place that we're going to need to pay attention and that right now people are still in kind of celebration or mourning and we need to pivot pretty quickly because that's where we are now.

Okay, we're going to get into all of the impacts of this decision in a moment. First, let's get to the decision itself. Let's start with the ruling. Justice Alito wrote a lot on behalf of the majority in this case, but here's the key line. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed the debate and deepened division.

It's time to heed the Constitution and return the issue of abortion to the people's elected representatives. Jeff, what is the legal case that Justice Alito, on behalf of the majority, is making in the decision in Dobbs? Well, Justice Alito sets out his legal case quite clearly at the beginning of the opinion, where he says the Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.

And he concludes that because the tax doesn't support a right to an abortion, the only way that it could be inferred from the Constitution is from history and tradition. So the bulk of the opinion is devoted to reviewing the history of abortion regulation in the United States. And Justice Alito broadly says that from the time of the founding until about the Civil War, the common law did not condone even pre-quickening abortions.

Quickening is around 16 weeks and Justice Alito says that although some pre-quickening abortions were not prosecuted, they also weren't recognized as a right. And the liberals strongly disagree with that characterization.

The bulk of Justice Alito's historical analysis is the same one that Justice Rehnquist made long ago in his dissenting opinion in Roe. And here it is. He says, by 1868, when the 14th Amendment was ratified, three quarters of the states, 28 out of 37, had enacted statutes making abortion a crime, even if it was performed before quickening. And basically those laws remained on the books until the day Roe was decided, as Justice Alito said. At that time, also by the Roe court's own count,

a substantial majority, 30 states still prohibited abortion at all stages except to save the life of the mother. So really the bulk of the opinion is just reviewing the historical analysis of Justice Rehnquist's dissent and saying that Rehnquist was right and that the Roe court was wrong. And then Justice Alito goes into that language that you were right to start with quoting,

Because he concludes that Roe was egregiously wrong, and also because the nature of its error was so significant, because it was on a collision course with the Constitution from the day that it was decided, he concludes that it should be overturned.

Tell me if this is putting it too crudely, but it seems to me that kind of the crux of the majority's argument here has to do with the original intent of the people that wrote the Constitution. When they wrote that document, they were thinking about freedom of the press when the First Amendment became law. They were thinking about freedom to have guns when they wrote the Second Amendment, but they

There is just not that place in the Constitution to ensure the right to an abortion. Is that thinking about it too crudely, Jeff?

It's not too crude, but I think that the answer is more complicated. And I'll try to be as simple as possible, too. The majority says that two things are relevant in interpreting the Constitution, history and tradition. History is what did the framers think? What was the original understanding in 1791 and 1868? And obviously Justice Alito reviews that here. But tradition is another thing.

It's not a snapshot of the framers' intentions, but a wide-angle lens of the history and traditions of our people over the whole course of American history from the founding to today. And Justice Alito says that by either of those measures—

You can't find a right to abortion, both because the founders didn't anticipate it in 1791, and even more clearly, he says, in 1868, and because there's no tradition of protecting a right to abortion throughout pregnancy, throughout the whole scope of American history. Now, what's important about this question, Barry, is that

The liberals are saying that the conservatives are playing whack-a-mole with their methodology, that basically they're looking at original understanding when it suits their purposes and they're looking at the broader tradition when it suits their purposes and shifting their...

between the two. And without going into that debate, unless you'd like to, I think it's important to note that the court had said that it was tradition that was relevant for figuring out unenumerated rights. In other words, if you've got a right that's written down, like the Second Amendment, you're supposed to look at what do the framers think. But when you have a right that isn't written down, like the right to an abortion and trying to give meaning to the liberty clauses of the 14th Amendment, you're supposed to take the broader view and look at the whole scope of

American history and that's why this debate about what actually was going on in the founding era and the common law about pre quickening abortions and also how were laws being liberalized right before and after Roe and also what a states think about abortion today not just is there a right or not but how are the interests of the woman balanced against those of the fetus all of that is relevant say the Liberals to a tradition based analysis and here's another really important part of the story and

The liberals say the conservatives have abandoned the idea of balancing interests. And this is a strong claim, but under Roe, the interests of the mother were balanced against those of the fetus. Before, in the Second Amendment, the interests in public safety were balanced against those of the individual who wanted to bear arms.

And Justice Alito and Justice Thomas in these cases both say, once we've identified a right, we don't balance. It's like an on or off switch. And it's kind of you have to incredibly high burden to overcome it if it is a right, like the Second Amendment. And if it's not there, then the woman's interests have no standing whatsoever.

at all. And the liberals say this is a big change in the law, that it's not consistent with original understanding because interest balancing has been at the core of American jurisprudence from the time of the founding until today. And it's not even well rooted in a whole bunch of precedents and it will wreak very big changes in the role of judges in our society. So that's why these methodological debates, thank you for indulging them, dear listeners of your podcast too. I know they can be a little geeky, but you really have to

Figure out what the methodology that each justice is applying is, and then decide if you think that it's being applied consistently, because there are huge consequences for America that are hanging on these choices.

Catherine, I'm wondering what you make of Alito's decision here, right? There are a lot of people, libertarians and liberals, who strongly favor abortion rights but basically agree with the majority here that Roe was bad law. We recently had Yale law professor Akhil Amar on the podcast, and he sort of made that same argument to me. Yeah.

And the second part of that argument on behalf of liberals and libertarians who support abortion rights is, you know, not only was this bad law, but it's better for democracy, ultimately, for this to be up to the voters, for this to be up to the states and the Congress. What do you make of that?

Yeah, I will cheerfully agree that Roe may indeed have been a hot mess. I think we have seen the consequences of that for the last 50 years. To my mind, an interesting question to ask, not so much about the ruling itself, but about its results from a liberal or libertarian perspective is Roe.

There are two stories you can tell about Roe. One is that a sort of federal body overstepped and that it took a question, took it to the very highest level, and took these nine unelected decision makers and gave them the decision for the whole country. And so it is therefore tyrannical or, you know, a sort of pushing upward of power. Another story you can tell is that Roe pushed the decision down to the level of the individual.

And that is something that is very appealing to me as a libertarian. You know, I want individuals to be able to make their own choices for as large a scope of behavior as possible. And so depending on which interpretation you have of Roe,

This decision, Dobbs, has either taken what was inappropriately at the federal level and at least pushed it down to the level of the states, a victory for federalism and decentralization, or it has taken a decision that previously resided with the individual and pushed it up and is therefore a sort of authoritarian move. And I tend to agree that.

That even though the reasoning in Roe and many of the precedents it set were confusing and messy, that we did in fact have for the last several decades this right residing at the individual level being a matter largely of individual choice that was better. It better honored what I would say is a right to bodily integrity or bodily autonomy and that Dobbs took some of that away.

Bethany, one of the major criticisms that I keep hearing from liberals and progressives, including those I always read like Dahlia Lithwick, is that this decision is fundamentally anti-democratic. Their argument goes like this. You know, how can six unelected justices, and they always point out that these justices were mostly nominated by presidents who lost the popular vote, just simply decide to wake up one Friday morning in June and revoke this right?

But then Alito and his supporters are arguing the exact opposite. They say what was anti-democratic here is Roe because it was essentially legislation put out by nine unelected Americans on one of the most morally fraught issues that there is. And by giving the right to make laws about abortion back to the voters and back to their elected leaders, we're actually supporting democracy.

Where do you fall on all of this? So I think that my answer is probably pretty obvious. It is much more democratic for people to decide their representatives and or to just directly vote, which seems to be coming in the case of Kansas.

it makes more sense to me. And I think that it also forces us as a country to really come to grips with what we believe about abortion. I don't think that nine justices should decide the same thing for people in Texas versus the same things people in New York or California, because we all have different moral compasses that we follow. And I think that's part of why we choose to live where we live. But

It makes a lot more sense for people to try to make the case one way or the other at the ballot box or with their elected representatives. And that can, you know, that will sway elections. And I don't think that that's a bad thing. It might be a bad thing for Republicans in purple states like Virginia.

But I think that ultimately it's a far healthier thing. And Meghan McArdle said on Twitter, you know, I think that this is going to create a healthier national discourse long term, but short term, it's going to be pretty messy. And I think that that's I think that she's absolutely right.

I see a huge gap between the conversation taking place in much of the culture and what the judges actually say they are doing. What lots of people I know are saying is, this is radical. This ruling is wild. It's insane. They use much more colorful adjectives than that. The justices, at least the majority, are saying no. What's wild isn't that we're overturning Roe. What's wild is that Roe was ever the law of the land to begin with.

Here's how Kavanaugh put it in his concurrence.

You're a law professor. You're the head of the National Constitution Center. Is he right? Is it true that the Constitution is neither pro-life nor pro-choice? Well, that's the question that the court is deciding in this case. And when people say that the court is behaving radically, or when people say it's behaving in a principled fashion, they're really fundamentally disagreeing about the

the court's approach to the Constitution. And there is now a dramatic, polarized, you could say radical difference between the methodology that's been adopted by the six justices in the Dobbs majority and the three dissenters. And the Dobbs majority, which now says that text, history, and tradition should be our sole guide, and if a right cannot be rooted in text, history, or tradition, it doesn't exist and shouldn't be balanced,

is a new interpretive claim, regardless of whether you think it's right or wrong. It has not been the approach of a majority of the Supreme Court

certainly since the New Deal era, but arguably ever. And the approach of the progressive justices, the liberal justices, who say that the conservatives are misapplying this methodology and that in fact precedent and changed circumstances and even broader principles of liberty and equality should rule, which is often called living constitutionalism, is a very different approach.

The reason this is such a significant moment and it makes it impossible to simplistically generalize about one side of the other as being pro-democracy or anti-democracy is that we're talking about a new era for constitutional interpretation. And there have been three previous big...

eras, the founding era, the Reconstruction era and the New Deal era, and really for the first time since 1936 and the shifting understanding of the Constitution that that court revolution ushered in, we're seeing a claim, call it the originalist era by six justices to return the Constitution to what they view as its original understanding in text and history.

And without taking a side on whether you think this is a good or bad idea, it represents a fundamental shift in the nature of American constitutional law about which there is radical disagreement, radical polarization, no common set of methodological assumptions on the part of the justices. And that is why...

I think we can say that we are entering into the era of the originalist constitution where not just Roe and not just the Second Amendment, but the regulatory state and voting rights and all these precedents that had been taken for granted under the New Deal constitution are going to be reexamined. And that is a significant moment in our constitutional history.

All right. I want to get to that in a little bit because one of the things that I'm hearing the most from people about this decision is what it means for things like contraception and gay marriage and whether or not the fears about those rights being taken away are hysteria or actually rooted in something real. Let's go a little bit deeper into the decision. So

The phrase that's come up a lot around Dobbs, one that we've already mentioned in this conversation, is the phrase stare decisis, right? This idea that the court places weight on precedent and it's deferential to previous court's rulings. Roe was upheld in the past by Casey because of stare decisis. But here in the case of Dobbs, the justices have said, no, here's Alito.

A lot of critics are saying that Alito and the majority here have just abandoned this important value.

I want to understand why stare decisis is important. Why is that an important virtue that historically the court placed such weight on? Stare decisis is important because it suggests that the rule of law is more than the preferences of justices at any particular point in time. If citizens are going to have faith in the court as something more than the composition of its members, then...

Previous decisions have to have some weight. The definition of the rule of law is prospectivity, generality, not sort of coming up with a result to reach a particular case. So stare decisis is supposed to constrain and create stability. Now, we all know that it's extraordinarily open-ended and that every confirmation hearing since Robert Bork has been about stare decisis, and it's all been basically a code statement.

debate about whether the nominee in question is going to overturn Roe. But now that Roe is overturned, we still have to acknowledge the fact that stare decisis must be important. Because if a court, as soon as you get a new majority, can overturn decades of cases just because the current justices view the law differently than their predecessors did, then how are citizens to look at

the court as a non-partisan body. It's not a particular indictment of one side or the other in general because, as the conservatives note, the liberals are quick to overturn precedents they don't like. No one is pure here. But I think that we could...

all agree because the conservative justice have written books about the importance of stare decisis as Justice Gorsuch did. Stability and precedent are important and they must count for something if the court is to be a nonpartisan body. Bethany and Katherine, I'd love for you to weigh in on this. Do you think the idea of sort of throwing aside stare decisis here creates instability and in a moment where the public has such weakened trust in so many of our public institutions and the court was sort of like the one remaining thing

If this is going to hurt our perception of its authority. Bethany, let's start with you. I don't know how much faith we had in sort of the court to begin with. I'm not sure how much people cared about the court. But I mean, the leak itself was sort of, I think, the final straw for a lot of people. But

Not sure that many Americans actually pay attention to these sort of things on a day-to-day basis. The Supreme Court was not alone, you know, standing atop all of these different public institutions that were crumbling beneath it. It is just one of many that people don't have faith in. Americans have always known that who becomes president impacts the Supreme Court, and that has implications for

any number of public policy things. I mean, it happened with Obamacare that this major sort of political question was answered from on high. I think the difference for a lot of people on the left is that suddenly it has gone the other way. And whereas the court has upheld a lot of things that they were happy with, they were okay with sort of how things were operating. But now all of a sudden,

which I think for everyone here and probably almost everyone listening, I mean, this has been law for 50 years. This is, it was such a bedrock of how we understand how this country works. And that has just been ripped out from everyone. And I think that that, you know, that speaks to a lot of, you know, where do we go from here? And it speaks to what Catherine was talking about with,

How do we enforce this now? These are questions that we've never had to ask ourselves. And so I think that this might have created a gut check moment for a lot of liberals about their trust in the Supreme Court. But for conservatives, I think that it wasn't necessarily there in the first place.

Catherine, I want to know what you think about that. And just also to add that, you know, one of these memes that I've been seeing going around is, you know, that the Supreme Court is sort of saying in the same breath, abortion should be left up to the states. It's not something we should decide. But gun rights, that's something we need to step in and protect. And the idea being, of course, that the court is being hypocritical.

What do you make of it? Are they being hypocritical and was overruling the idea of sort of stare decisis here going to cripple public's perception of the court? The public has been losing confidence in the court for a long time. I actually just went and pulled the Gallup numbers. And right now they find that 25 percent of U.S. adults say they have

Only 25% say they have a great deal or quite a lot of confidence in the court. That's down from 36% a year ago, but it's been declining for a long time. And so I think it's, again, interesting that Bethany and I share kind of a –

I don't know if she would say it's fair to call it a cynical stance towards some of these matters, but we come down in very different places on what ends we would like to see. And I think both of us in good faith. And that is one reason, I think, why this thing that the court has been doing for a long time, right? I mean, justices are hypocrites. I don't think that's like breaking news here on the Honestly podcast. They're human. They're human and therefore hypocritical. Amen.

And they engage in motivated reasoning. And that's also not breaking news. That's always been true. Now, you can say, as I think Jeffrey somewhat compellingly makes the case, that we put different guardrails on the limits of that hypocrisy in the past. Different courts have sort of perceived different breaking points where the hypocrisy will be tolerated. And maybe those are shifting now. But it's certainly not...

a new thing. And though I do think that the court wrongly decided in Dobbs, I think a well-functioning, highly trusted Supreme Court is pretty important. I think that it is a loss that those numbers are declining. And I blame Congress. I blame Congress for screwing that up because both this sort of shoddy way that it has conducted confirmation hearings, that they are perceived to be unfair. And again, this is not new. This has been true for a long, long time.

And also in the legislators' own persistent unwillingness to do their jobs, which leaves too much in the hands of the justices and too much in the hands of an unaccountable bureaucracy. And if we force decisions that really rightly maybe shouldn't be made by the court into their hands, they're going to do stuff we don't like with that power. I think that there is potentially – this is like a semi-dangerous hypothetical, so I'm

I think there is potentially a case to be made that the leaker of the Dobbs draft did us a favor insofar as I really don't think it was out of the realm of possibility that we might have seen

Not January 6th, but a January 6th caliber reaction, but with a reverse political polarity if this decision had landed as a surprise. Yeah, I understand why many, many people do feel that it was sort of a bridge crossed that hadn't been crossed before or maybe even a betrayal. At the same time, you know, the soft launch on Dobbs did give people a little time to think about what it really meant. And, you know, I think we all remember the absolute disaster

disaster that was the Obamacare decision, where, you know, many major commentators got it flatly wrong in their initial characterization. And that mattered a lot. And I could easily imagine a decision like this one getting characterized wrongly when it landed in ways that could have been much more polarizing and that people would have perceived it perhaps to have outlawed abortion everywhere, which it did not do.

The failings of the court are here are not new. They are the same failings the court has always failed in, but that this decision certainly accelerates a trend of declining trust that is not positive. Jeff, what is the actual legal argument that was put forward by the dissenters here, Breyer, Sotomayor and Kagan?

First, the dissenters disagree with the majority's history and tradition approach, and they accuse the majority of cherry-picking historical evidence, wrongly focusing on the meaning of the Constitution in 1868 and failing to look at the protections for abortion throughout American history. And they strongly emphasize that...

Before the Civil War, people, women were not prosecuted for having abortions before fetal quickening and therefore they suggest that there was something of a tradition of not criminalizing abortion then. They also emphasized the liberalization of abortion laws starting in the 50s. 20 states had abandoned their total bans, only 30 renegotiated.

remained on the books and the liberalization continued. So basically they're saying that the conservatives are not doing what they say they're going to do, which is actually giving an account of the history of American abortion law, which in the view of the liberals

has tended to balance the interests of the mother against that of the fetus. Second, the liberals emphasize women's equality. And invoking the arguments of Justice Ruth Bader Ginsburg, they say restrictions on abortion impose limits on women's ability to change their own, to choose their own career paths and define their own lives that are not imposed on men. They say that this violates the Equal Protection Clause of the Constitution. And they note that the 14th Amendment, which was passed in 1868—

was passed at a time when women couldn't vote, but that subsequent decisions have recognized women's equality as a central part of the Constitution. And then they also make arguments about precedent, and not just that precedent shouldn't be overturned, but in their view, protections for women

marital privacy, choices about procreation, choices about where to send your kid to school are deeply rooted in our history and tradition and they cite a bunch of cases dating back to the 1920s which protect all of those rights and they say that

Dobbs is not merely overturning Roe, it's essentially overturning all of those cases as well. Now Justice Thomas says, yes, exactly, you got it. I want to overturn all of those cases dating back to the 1920s and before because I believe

that there's no such thing as what's called substantive due process. It's a jargony word, but it means that the due process clause doesn't have substantive liberties that it protects, and therefore Thomas doesn't want to get in the business of identifying fundamental rights that aren't written down in the Constitution. And the liberals say that's a totally radical project.

That's just not the way American law has functioned since the founding. Judges since the founding have recognized substantive due process rights. There's a whole century of Supreme Court precedents that protect these substantive due process rights. And significantly, no one joins Thomas in that. But what's important about this is the liberals are not just accusing the Davids majority of

cherry-picking history, they're basically saying the implications of their methodology calls into question much more than Roe. And then they get to the stare decisis analysis. And I mean, it's a very vigorous and important engagement with the majority's decision. There's some great lines in there. At one point, they say, noting that the majority promised, don't worry, gay marriage and

contraception is not at issue here, scouts honor, says the majority. That sounded to me like a line from Justice Kagan, who's great at those zingers. And she was basically saying, I'm not going to back on this promise because you keep changing the historical framework. But the big difference between the analysis of stare decisis of the majority and the dissent was their treatment of the reliance interest. The dissenters say,

Women have come to structure their entire lives for a generation on the availability of abortion and contraception. And...

being able to choose to be caregivers and mothers or not, or to pursue a career is central to women's equality and to define the reliance interest so narrowly on the individual choices faced by a particular pregnant woman at any point in time, they say very much mistakes, the stakes of the case. So I would say to,

you and listeners or anyone else, you can disagree with all of the dissenters' legal arguments. You can say that the history and tradition really isn't clear, that the majority is right about that, that the equality argument is too vague, and as the majority says, it's foreclosed by a previous decision which said that

Pregnancy discrimination is not discrimination because of sex. The liberals suggest, well, why couldn't you overturn that decision too if you can overturn Roe? And you can say that the autonomy and privacy and dignity cases are decided at too high a level of generality and therefore are not well rooted in history and tradition. But they are legal arguments that the court has accepted for decades, and the dissenters say that far more than Roe is being overturned.

Bethany, I wonder what you made of the dissent, the points that were brought up by Kagan, Sotomayor, and Breyer, and if there's anything there that you agree with and that causes you concern. So I think that the thing that sort of was the most striking about the public is sort of what you're seeing on social media response to this and what is contained within the dissent is this concern that

all of a sudden women are just are going to be responsible to be more careful with their reproductive choices decisions application of their birth control methods and to me as a pro-lifer I'm like good

We should be more careful. The fact of Roe being the law of the land for as long as it has been is that we haven't had a real conversation about what is abortion? What actually happens when a fetus is aborted? When does the heart start beating? When do the arms start moving? When does it start sucking its thumb? When does it really become a person? And these are not questions that we've ever really asked and we're

Jeffrey was talking a lot about sort of weighing the rights of the fetus versus that of the mother, and I don't think that prior to Roe, we ever considered the rights of the fetus. We have seen a radicalization of...

pro-choice sort of policy and thinking up until right at the moment of birth. And, you know, the thinking used to be safe, legal, and rare, and that went out the window. And so I think that this is, you know, with this radicalization and the extremism of the pro-choice messaging, we have to have a national conversation about where are we and how out of step we are with the rest of the world. I think that it's important to note that this original case Dobbs

it was about a Mississippi law that is more liberal than most of Europe and the rest of the world. And so- It was banning abortion after 15 weeks. After 15 weeks. We are global outliers. At 15 weeks, a baby can perceive light with its eyes closed. It can suck its thumb. I think that you see those scientific facts that we didn't know a long time ago, but we know now. And we have to have sort of

different national conversation about the rights of the fetus and what is actually happening within a woman's body that is separate from their body. That is a separate human being. I think that that's important. And so, you know, going back to your original question, what do I make of the dissent? I think it's a good thing that perhaps women are being more careful and know that they have to be more careful and men as well. A lot of conversations about abortion have sort of centered around

Women want this, but a lot of men want it too because it makes their lives a lot easier. They don't have to take responsibility for their actions and their behavior in all sorts of ways, namely financial but also morally. And when they are responsible for bringing a life into this world, people make different decisions, and I don't necessarily think that's always a bad thing. Okay, I want to turn now to what effects overturning Roe is having right now in this moment.

13 American states have these so-called trigger laws on the books. And they were crafted just in case this moment ever came, in case Roe was ever overturned. And several of those states have enacted. Others are in the midst of enacting these laws. So, Catherine, what does it mean for a woman in a state like South Dakota who was seeking an abortion but now cannot legally get one, even if she was raped? So for that woman, obviously this is

devastating and I think potentially terrifying turn of events. That woman, of course, is an outlier. The vast majority of abortions are not cases like that one. And so I guess the place I would start is, you know, I want to think about that woman, about that girl. But I also just want to think about, you know, the people sort of captured in that

the reliance interest. I would never presume to constitution spleen to Jeffrey. I would not get anywhere near that. But I found that part of the dissents really compelling, maybe because I'm a planner, right? I'm a person who likes to know what the conditions are. I like to be ready for all eventualities. And I

The idea that there are so many people right now who are living in states who just don't know what their world is going to look like with respect to their reproductive choices for the next, not just the next month as the 30-day period elapses for trigger laws, but, you know, for a long time. This is going to be a big, messy, ugly fight, and it is going to be happening recursively forever and ever unto eternity in every state.

And so I think, you know, that lack of certainty is going to, it's going to weigh quite heavily. And so I don't want to pass over that because I think it is, of course, it is a transition cost. And if you are strongly pro-life, you say this is a cost worth bearing, but it is a high cost.

So I think any good faith version of this conversation definitely believes with a recognition that there may indeed be competing moral claims between the woman and the fetus and mother and the child. You can use whatever language you want. And I think Bethany has captured that. But most Americans think that sometimes at least those competing moral claims should be resolved in favor of the mother.

And more importantly, people disagree with their neighbors about this, right? So what's going to happen is that we're going to have a situation where law enforcement is going to be called in to punish people who buy and sell abortion services and the people who help them.

And first of all, they're not going to know what they're doing. Second, we're going to get a lot of these messy downstream effects, including all of the effects that we currently have from the war on drugs. And I really think that that is the best parallel.

We have already shown that we are willing to impose incredibly high costs on people who break our laws with respect to recreationally consuming certain substances. We are willing to tolerate messy, fatal black markets. We are willing to incarcerate people. We are willing to take their rights to vote or own a gun away even after they have served a prison term. We are willing to kind of wreck our foreign policy and sometimes even wage wars over this.

And that's over just drugs. At this point, abortion will be part of the war on drugs because many to most abortions at this point are drug-induced. And I suspect that it will follow that template. It is a prohibition where neighbors disagree. And that's what makes it different, I think, from other types of what you might call killings, where everyone does agree or at least we have a more settled consensus. I remember really clearly –

About a decade ago when the subject of abortion came up and I was in an editorial meeting in a newspaper and it was almost all men, one woman, maybe two.

And one of the women from a much older generation came up to my desk after the meeting and without sort of any warning launched into a story about what she had to do when she got pregnant before Roe. And it involved an extremely grisly and dangerous trip to Puerto Rico and an abortion without any kind of anesthesia at all.

Nowadays, you can go online and you can get what people are calling Plan C or an abortion pill or set of pills, really, that can be mailed to your home, which makes me sort of think of two things. On the one hand, maybe this is going to be less of an animating issue than it previously had been simply because the technology is so much more advanced. But also, Catherine, picking up on what you're saying about the techniques of the war on drugs being brought to bear here, I think it's going to be a lot more advanced.

I wonder about what online surveillance is going to look like in an era where a woman in a state like Arkansas or South Dakota goes online or even does a Google search for one of these drugs. Do you have any sense? You know, I know Reason Magazine writes a lot about this kind of thing. Do you have any sense of what that's going to look like? And what are your fears about that possibility?

Yeah, I mean, this, of course, coincides with another big fight we're having right now about who controls the flow of information and what counts as disinformation and what counts as legally permissible information to share. So very recently, 21 senators sent a letter to the CEO of Google complaining that people who search for information about abortions might end up at websites for crisis pregnancy centers.

That is not the place where we want this fight to happen. We absolutely cannot have members of Congress weighing in on Google search results. And of course, this will be absolutely both sides, right? Both the left and the right will not hesitate to pull any lever that they think they can pull to

change the flow of information. I wish that we had a cultural norm and a political norm that centered a little bit more on free speech, as I understand the First Amendment to protect it. But, you know, we, of course, have the historical example of

Right.

over, you know, what counts as shared information versus advertisements. This is a historical divide, as I understand it, that we will have to kind of grapple with. And then finally,

It pains me, just pains me to say that at least at this moment, it looks like maybe the FDA is going to kind of come out here as a potential force for defending abortion rights because they're going to potentially not recognize the state's prohibitions on the distribution of certain drugs. Now, do I love the FDA? Hard no. Would abolish. But...

But I think that it just goes to show how many places in our kind of broad political culture this abortion decision is going to wind up distorting what people feel safe saying or what companies are going to feel safe sharing or distributing. And it's going to politicize all of those things. I've been thinking a lot over the past few days about how many different situations are described by the word abortion.

You know, it could be a single woman who can't afford to have a child aborting a pregnancy early on the first few weeks. Or it could be parents who find out that their baby or their fetus is going to be born without critical organs that they need to survive and will very likely just have a few moments of life, painful ones, before they die. In states like Kentucky or Arkansas,

Bethany, I'm wondering how you think about that. So I think that sort of rewinding a little bit to the conversation that your colleague had with you about what abortion looked like pre-Roe,

I don't think that we've had enough of a conversation about the grisliness that is abortion now. In The Daily Wire, there was a fantastic piece by Mary Margaret Olihan where she went into a clinic and she talked to women who were getting abortions at that moment, who had their pregnancy thrown into preterm labor. And she was talking to women who were in labor with babies who would die because

And so, especially in that last case that you talked about, a baby who is going to be born without vital organs or, you know, in severe distress and who will eventually pass away, it's a crude way to say it, but I don't know how to say it. That baby is going to die a grisly, horrible death at 20 weeks gestation or at 40 weeks gestation. It's just going to happen. It's horrible and it's tragic. And...

The question is, are we allowed to play God with that person's life? As a parent, you don't get to decide on what terms you bring your child into this world. You don't sign a dotted line that says, I agree to only have a perfectly healthy baby. And these are my concerns with prenatal testing. It's my concern with a lot of the efforts of

Thank you.

We have to, unfortunately, go into that with the understanding that you might not always get what you want and that there is sometimes pain and hardship involved, but that we're really sanitizing the situation if we say that an abortion saves you from

having a child that will die. Because if that child is conceived with those genetic abnormalities, that child will die at 20 weeks or at 40 weeks. But you talk about playing God, but aren't you playing God with the mother's life in some of these cases? To me, there is a huge difference between...

forcing a woman to spend an additional 20 weeks carrying an unviable child that is both incredibly psychologically and maybe physically painful, but also might make it difficult for her to get over the trauma of it to have another wanted child. How is that not playing God? I actually agree with you. I think that there should be allowances in this circumstance, like me personally. But I also...

I believe that we need to be more honest about what happens at that 20-week abortion because that's when you really find out that a baby has these sort of severe abnormalities that would get you to that point. 20 weeks is very, very far. The baby is large and an abortion...

is painful and graphic and traumatic in itself. And I think that that is a fact that we have sanitized post-Roe. I agree with that. Do you think though that there's a moral difference between an abortion at 10 weeks and an abortion at 20 weeks? Or do you believe that

You know, a life is a life is a life and it's sort of immaterial. So, I mean, this is where I sort of, I separate myself from the general pro-life community and I can just feel people listening to me sort of groaning because I do think that there is a moral difference between a 10 and a 20 week period.

abortion. I, you know, a baby at 10 weeks, um, the bones and the cartilage are forming and it, it has very pliable limbs. Uh, the liver and the kidneys are just starting to form and the baby is the size of an olive. It's an inch and a half. I think that that's very different from a 20 week fetus where, I mean, if you've ever had a 20 week ultrasound, um,

you can see the spine, you can see it moving around. During my first 20-week ultrasound, we tried to piss off my baby so that it would turn so that we could see her heart in a different position because we needed to get that angle. And you can see every finger, every toe. I do think that there is a moral difference. And, you know, kind of rewinding a little bit to Catherine's point, you know,

This is going to be messy, and this is going to be a really sort of painful national conversation about abortion. I think that we need to have it. There are, on average, 600,000 babies that are aborted every year, and the vast, vast majority of those are not the circumstances that you're explaining. They're not babies with fetal abnormalities. They're not products of rape or incest.

They are, oops, oh crap. But let's also clarify that the vast majority of them, something like 92%, are taking place in the first nine weeks. Yeah, yeah. But there, I mean, there's a lot of babies that are aborted at 15 and 20 weeks later.

for no, not the reasons that you're describing. Katherine, just want you to jump in here. Do you think that there's a moral difference between 10 and 20 weeks or, you know, in the case of New York State, abortion, I think is allowed up to 24 weeks? Yeah. I mean, you know, Bethy and I have both talked about how this is going to be messy, but I do want to emphasize it's always messy. It's always been messy, but it was messy at the level of the individual. It was a hard decision and

Not for everyone, but for lots of people, even people who are deeply pro-choice. So I think this conversation is to some extent not about whether these are hard decisions or whether they have moral gradations, because I think they are hard decisions and there clearly are moral gradations. The conversation is about who gets to decide and where the level of, okay, somebody drew a hard line and they are going to enforce it at the point of a gun.

You know, I have seen on Instagram or I follow her that Bethany does a tremendous amount of charitable work and supports families that need help. And I think it's incredible. I have personally supported women who got needed and wanted abortions, including some at quite a late stage. And.

I think in both of those cases, it's clear that we are acting out our moral convictions and that that's sort of admirable in both cases. But I think that we really lose that when we start to make this a conversation about what is allowed, what are the options available to those women in extremists that you've described, but also just women who, oops,

Right? Women who just got pregnant. And our law already does recognize, and this is, I guess this is my second potentially cancelable thought of this podcast, but there's...

We already recognize moral differences between many, many different kinds of deaths. Our laws already recognize that, right? So we have the tools already to say there's a difference between killing someone in a war or killing someone in self-defense or the death penalty or euthanasia or the killing of animals. I mean, we really truly do have the tools to draw subtle lines, right?

But I think the more we can let, when there are competing interests, as there are in the case, again, of the mother and child, of the woman and the fetus, the more that we can let people draw those lines for themselves and to keep the mess as close as possible to the people who will bear the consequences of that mess, the better off we are. And so, you know, yes, more information. Sure. Look at every sonogram we want. Let's read all the what to expect when you're expecting. I, too, enjoyed knowing exactly which

legume or piece of produce my children were as they progressed in the womb. And I think people share these very clear moral intuitions that there is a difference between one week and 40 weeks. And I think those matter. I just hesitate to let legislators decide exactly where we're going to draw that line because I don't think they're very good at it.

After the break, why doesn't America already have a law like our allies in Europe? And will this ruling continue to break apart our already fractured nation? Stay with us. Let's talk about the effects of this case, Dobbs, beyond abortion. The thing that my phone has been lighting up with ever since the decision was leaked was texts from other gay friends saying,

wondering what the implications of this would be for gay marriage. Now, the majority spells out very plainly that their decision is only about abortion, not about contraception or gay marriage. But then you have this concurrence by Clarence Thomas saying the court should reconsider what he calls all of its substantive due process precedents, including Lawrence v. Texas, the 2003 decision that established the right to be able to have gay sex, and

and a Boger fell, which obviously legalized same-sex marriage in 2015. Jeff, can you explain to us how these cases of Lawrence, of gay marriage, and of Roe are connected from a legal perspective in Thomas' view? Yes. Thomas accurately notes that the Lawrence case was

was a form of substantive due process that looked to the history and tradition of American law and concluded that there had been a shift since 1986 when Bowers v. Hardwick refused to strike down laws regulating same-sex intimacy and said that more states had come to accept that right as a matter of history and tradition.

But Lawrence also relied on more abstract arguments, called them natural law-like arguments, about dignity and equality, and emphasized that it was the dignity of gay people that were at stake when their intimacy was regulated. Lawrence famously used Kennedy's language when he upheld Roe in Casey versus Planned Parenthood, "At the heart of liberty is the right to define one's own conception of meaning, of the universe, and the mystery of human life."

Justice Scalia at the time had dismissed that as the sweet mystery of life passage. He thought it was just too soaring. And Thomas agrees. He wants to repudiate all sweet mysteries from American law and not have judges impose

broad generalizations about dignity and equality. So Thomas is on firm analytical ground in saying that to the degree that Lawrence relied both on a kind of freewheeling history and tradition and also on these more sweeping conceptions of liberty and equality, as Kennedy called them, liberty in its more transcendent dimensions, then overturning Roe would also imply overturning

Lawrence. Obergefell built on Lawrence and that was pure liberty and equality talk and dignity and the meaning of the universe because obviously there's no tradition of protecting gay marriage. I mean, very few states have legalized it or certainly less than a majority at the time that the decision came down, although the trend was in a liberalization direction. So the obvious question all your friends who are texting you and lots of people have around America is,

Well, why did the majority then say those precedents were safe? What's the analytical difference between them? Thomas says there's none. Why isn't he right? And the truth is it's complicated, as in all things in law. You can pretty squarely distinguish Griswold versus Connecticut, the contraception case, from Roe because when Griswold was decided, Connecticut was the only state in America that banned contraceptives. So that's why...

the court concluded that there was an overwhelming tradition that had come to embrace the right to use contraceptive. You don't have to resort to the sweeping penumbra language of Justice Douglas, the kind of sweet mystery-like natural law reasoning, to get to the result in Griswold. You just say, by 1966, it was just one state that was still trying to regulate it. There's a history of protecting it. So by that score, I think

any texting friends can reassure themselves. I don't think Griswold's not going to get overturned, even Justice Alito, as he embraces it. Right, but just play it straight for me, pun intended. Should those of us who are gay married or those of us who have friends that are considering getting gay married be concerned that the very same people that just overturned

a decision going back almost 50 years. Why should we take their word that gay marriage couldn't be next on the chopping block? Well, the liberal justices told you don't take their word. Scouts honor.

And as an analytical matter, it's hard to see why marriage is not vulnerable if you reject the methodologies that led to it. Pragmatically, marriage equality seems to be less of an agenda item for the

conservatives, and it's also been much more accepted at this point than abortion has. The majority of conservative and liberal Americans, especially younger ones, have come to embrace gay marriage in a way that's less polarizing than the abortion debate, although you can still argue that even abortion is

protection for early term choice is not as polarizing as the court suggests. So look, I'm not, it's not my business to tell people what to, whether to trust the court's assurances or not, but just descriptively, it seems like Alito, Justice Kavanaugh and the others are,

maybe less likely to overturn gay marriage. The other big difference is the reliance interest in gay marriage are overwhelmingly powerful. I mean, no one can deny that people who are married, you couldn't have stronger reliance interest. So that might factor into the analysis as well.

So what I'm hearing is worry a little. And if this becomes a major issue in the culture, maybe worry a lot. But right now there's not the political will behind restricting gay marriage that there is around abortion, although that could change. Okay, let's talk a little bit about how this happened.

There are a few factors that I see, some pure luck, some highly intentional, that led us to this pass. One, RBG didn't retire under a Democratic president. Two, Trump got lucky with a narrow win and then got to nominate three judges. That's luck. Three, the Federalist Society is maybe the most effective activist organization in the country and should be studied by Harvard Business School about how to run a successful long game operation.

And four, and this is one I've been thinking about a lot as someone who's always identified as a feminist, the transformation of the women's rights movement. It seems to me that it's been...

hijacked by fringe elites who are not only out of touch with the average American woman, but that while the Federalist Society was laser focused on winning legal battles and getting their judges appointed to the bench, they steered the women's rights movement to a place where the phrase safe, legal, and rare has become a third rail, where people are chided for using the word mother and

You know, in the aftermath of the court's decision last week, I saw Rebecca Traister, feminist writer at New York Magazine, tweet that Joe Biden has, quote, got to stop saying between a woman and her doctor. Woman, obviously, being the problematic word there. Catherine, am I wrong to blame in part the women's rights movement or the feminist movement, pro-choice movement, for getting us to this moment?

A lot of the power of the Federalist Society has been its internal consistency. So not that they necessarily have this total lock on, you know, what every desired judicial outcome would be and they're all perfectly consistent, but that their goals are very clear.

And that they figured out a way to kind of systematize those. And then they went about fostering them in a way that I think honors the rules of the game. And I think a lot of people could disagree about that. But they said, OK, if we want a more conservative court, if we want a court that, you know, focuses more on the issues that are important to us, we have to start at law schools and we have to foster intellectual debate. I have participated in Federalist Society events and debates that I think have been very good and very honest and very fair.

And it's not just abortion, right? I think the people who are hyper-focused on abortion, and that's understandable right now, miss that this is not just about abortion. It really has been about a very broad slate of changes that they wanted to see to the judiciary, and they've pursued all of those. And, you know, I think there's always a temptation, and I myself have given into it from time to time, that when your ideological opponents get a win...

You want to say basically they rigged the game. You want to say like, oh, but they're so well funded and they're like evil geniuses and they're all sitting there with, you know, petting the white fluffy cat in their armchair and they're just absolutely, you know, masterminds and how could we possibly have? No.

Everyone has these same tools available and the Federalist Society happened to have used them well and we are now seeing the results of that. I think it is wrong to impute some kind of like sinister genius to them. They just followed the rules and won. So I think there was that piece. But yeah, do I think that the modern feminist movement has sort of missed the mark on where the important points of emphasis are? Sure. I mean you may have noticed earlier I was very casual, purposely so, about whether the language is mother and baby or woman and fetus because –

As you have highlighted so many times on this podcast, Barry, like the fight over the exact words that you are allowed to use stupidly eclipses the substance of so many important topics. And I don't want to fight that fight. The modern feminist movement, at least part of it, has chosen almost exclusively to fight that fight. And it's not looking good right now. So, yes, I think –

I think there are some important lessons to be learned there, but I would really, really caution against going full conspiracy theory on this. I did want to flag one other thing when you said my gay friends are texting me and they're worried. What they should probably actually be worried about right now is IVF. That's my straight friends too because I'm a woman in her mid-30s. This is, yeah, whether or not a blastocyst, a seven-day-old embryo is rendered a person now.

The way that some of these state laws are written or will be written is going to throw into a state of uncertainty a lot of the standard practices of IVF. And again, there are some pro-life people who might say, good, yep, but it's not going to happen.

That was the idea all along, but most people don't feel that way. Support for assisted reproduction is stratospherically high in this country. And I think that that actually is probably, for everyone who might want to avail themselves of those services, a place to be more immediately alarmed. I want to know why you guys think America is such an outlier in not having a national law already on the books about abortion. Yeah.

In poll after poll, despite the fact that the extremes, like everything, hog the microphone culturally, that Americans are not as divided on abortion as we've been led to think. A clear majority want legal abortion, but with some restrictions. And when you ask people what they want, it sounds a lot like the laws in places like France or Germany or other European states where it's a ban after 12 weeks, ban after 14 weeks. Right.

And yet neither party, when they've had a majority, has tried to pass a law pushing their side. And so the entire question for the past 50 years has been placed on this thin reed of a very controversial Supreme Court decision. So the question to all three of you is why?

When Obama was elected with a supermajority, why didn't Democrats seek to put a law on the books? When Joe Biden was elected last year with a majority in the House and the Senate, if abortion is so important, why not make passing a law a top priority?

Justice Ginsburg argued long ago that Roe was bad for the pro-choice movement because it prevented it from pursuing its cause in the political arena. And she thought that had pro-choice been

People made their case in state legislatures, they would have won, and she thought a federal law could have been passed as well. And in fact, in 1992, right when it looked like Roe was about to be overturned, under President Clinton, Democrats proposed a pro-choice law. They had the majority in Congress to pass it.

But it failed because it insisted on going too far to protect late-term abortions and therefore deviated from the moderate consensus that's been nearly unchanged since Roe, where most Americans support early-term choice and want restrictions on late-term choice. So it was overreaching in 1992. It's a really crucial moment. You noted a bunch of crucial inflection points in this debate, and that was a huge loss.

lost opportunity, but it reflects the polarization of the debate and the fact that once the court took the balancing off the table, both sides in this debate became thrall to their most extreme and polarized wings. And therefore you have both parties now

representing positions in the abortion debate that don't reflect those of the moderate majority of Americans, which also track those of the moderate majority around the world. It's a very broad international consensus that early-term choice up to a certain point should be protected and late-term choice should be restricted. So in that sense, Justice Ginsburg always thought that had the court merely struck down the extreme Texas law, which banned abortion in

in all circumstances with few exceptions, and then allowed legislatures to fill in the gaps. She thought things would have gotten less polarized and we've now learned from the road drafts that that was Justice Blackmun's initial instinct, was simply to declare the existence of a right to choose and lead it to state legislatures to fill in the gaps. And regardless of where you come down in this remarkably polarizing debate,

I think we can agree with Justice Ginsburg that the court might have been wiser to move more slowly. Catherine, why do you, I mean, you're a libertarian, you hate both parties. Why do you think the Democrats, though, haven't tried to pass this kind of compromise position that would satisfy a majority of Americans?

Yeah, I don't know. I frankly don't understand the two major political parties. You are correct to say that I hate them, but I also find them nearly incomprehensible. And I think a lot of Americans share that impulse, at least on some level, particularly, as you say, when they're frustrated with their own party, when they perceive that their party, their vote for their party has certain things contained within it. And many people who vote Democratic do so because they feel strongly about abortion. That's a thing they tell pollsters over and over.

Why don't they act? I have a bunch of, you know, potential theories, but I guess I'll just go back to kind of my baseline theory on so many of these things, which is that,

I think Congress is reluctant to do controversial things if they can avoid it. They don't want to make good law. They want to be reelected. And that is unfair, what I just said. It is super unfair. There are, of course, individual actors in Congress who are genuinely trying to do the right thing and make this a better country. But the

net result of many of their decisions sure looks a lot more like get reelected than it does like leave a lasting legacy of robust legislation that will improve the nation.

And again, I think they thought, well, this is handled. For better or for worse, this is handled. And this is something I can fundraise off of that people will vote for me about, but that I don't actually have to do the hard work. And there's so much hard work to be done just on the cause of bodily autonomy alone. I mean, on the right, you might also ask, you know, given the last two years, why?

why there haven't been clearer, both at the state and federal level, adjudications about where the limits of bodily autonomy are with other kinds of medical rights. But I can only offer dark and cynical explanations here, which are just that Congress doesn't want to bother. And they kind of hoped maybe when this whole thing blew up, it wouldn't be on their watch. Okay, well, just to take this a step further, right now,

Joe Biden is the president and the Democrats have a majority in both houses of Congress. And yet they're acting like they don't have any power at all. Instead of doing the hard work of passing something or trying to pass something that protects at least some abortions on the national level, perhaps abortions in the first trimester, they're saying this, if you want us to do something, you should go vote this fall.

And there's already been a backlash to this line. So I received a text message from Joe Biden's campaign yesterday saying that the Supreme Court had overturned Roe versus Wade and that it was my responsibility to then rush $15 to the Democratic National Party. And I thought that was absolutely outrageous because my rights should not be a fundraising point for them or a campaigning point. They have had multiple opportunities to codify Roe into law over the past 20, 30, 40, 50 years, and they haven't done it.

And that makes sense to me because what I want to say to Democrats is you've already been elected to do those jobs right now. Why are you there if not to do something? And yes, it might not be exactly what the base wants. It might not be exactly what you personally want. You'll have to compromise with the Republicans and with some of the moderates in your own party. But why not at least do something?

I'll push back a little bit on the sort of belief that they haven't tried to do something. Back in May, the Senate tried on a bill called the Women's Health Protection Act, but it failed to get any Republican votes, even the Wafflers, because it was actually very extreme. And this is a problem that Democrats have been facing since.

with regard to abortion for a while now. The safe, legal, and rare is out the window. And now it's, I can never question a woman ever under any circumstances. She is free to do whatever she wants, whenever she wants, however she wants. And that is out of step with the vast majority of Americans. Only 20% of Americans think that abortion should

should be legal in the third trimester for any reason. Am I right to say, Bethany, that you could have been a safe, legal, and rare person? And maybe actually you were a safe, legal, and rare person, but then when you see, you know, I'm sure you saw the photo that's been going around the other day of a woman who was clearly many months pregnant and wrote on her belly... Not yet a human. Not yet a human. Like, is that what's lost you? Yeah. No, I mean, I think that a lot of how we get here is that people are radicalized. And...

I don't think that I would be at the March for Life were the situation safe, legal, and rare, and that we had an honest understanding of the tragedy on every side that is abortion and the messiness that is abortion. Instead, it's become ghoulish. It's become really, really disturbing how we've stripped from abortion

babies just every ounce of their humanity and that is what animates me as someone who identifies as pro-life but

not a hard, I'm not Catholic. I'm not like life begins at conception and every time you throw away a baby in an IVF clinic, that's equal tragedy to, you know, a 20 week abortion. I, I, I find that distinction in a way that my Catholic friends do not. And that makes me out of step with the pro-life community. But I am more of an, more of the normal American than I am the pro-life community because those are, those are separate sort of

things. I'm more mainstream. But yeah, I mean, the pictures that you saw out of, and a lot of people try not to see them if they even know that they exist. There were pictures of five babies that were literally taken out of a dumpster from an abortion clinic in Washington, D.C. Those pictures were of babies and they were killed in the womb and delivered dead. And I urge people to

face that because that is what abortion looks like when it's not safe, legal, and rare. And that's what we've had up until this point. I think pro-choicers would hear that and say, that is a tragedy. But think about the reality when it's made illegal as it is right now in so many states. Not only do you have the tragedy of

a fetus, a baby, whatever language we want to use, we also have the reality of the mangled bodies of dead women as well. How do you respond to that? So I think it depends on a lot of circumstances. And I think that there's a lot of lines. This is my cancelable clip that you can grab. My sympathy lies with the innocent life that

is brutally, brutally taken from it. We all make choices as adults, and we have to face the consequences of those choices. And sometimes those consequences are difficult. And this is why, as a pro-life woman, I still think that there should be

within the law for rape, incest, life of the mother, and fatal fetal abnormalities, but that ultimately we as adults...

need to take responsibility for decisions that we're making and that we don't have the luxury, nor should we have the luxury, of ending the life of a baby who is able to feel pain, which is at between the 15 and 20 week mark, just because we made the wrong choice. And this is mainstream European law that I'm sort of hoping that we get to.

I think in many ways what I'm asking is just a perfect mirror image of what Bethany is asking, which is that I think that we as adults need to face the consequences of what abortion prohibition can and will look like. And that's not just a sort of pre-Roe bleeding out in an alley, although it's that as well. It's also, you know, right now there are women in prison who had miscarriages and those miscarriages were investigated.

as potential killings, essentially abortions, and that that will be a consequence that many, many, many women will face. This is a classic sort of, if you didn't do anything wrong, you don't have anything to fear. Yes, you do. And I think that, you know, if we are going to take seriously abortion prohibition, we are going to take seriously imposing laws

major, major consequences on abortion providers, on abortion consumers, and on the people who help them, including the men who pay for them or drive women to their appointments or fly women to their appointments out of state because they can't get an appointment in state. And I think that those consequences must be taken seriously.

As seriously and perhaps more seriously because my sympathy lies with the fully realized adult woman more than it does with a as yet unrealized adult.

especially in first trimester fetus. And I think the fact that Bethy and I are basically neighbors, right? We live together in a community and we disagree. We disagree deeply on these matters. And my way gives space for both of us to continue to exist outside of jail. And her way,

puts people who I would defend in jail. And I think that is ultimately the case for my way. Okay, last question. Over the past few weeks, there have been a shocking amount of attacks on pro-life pregnancy centers around the country. I think there's been something like 40 of them, but this is going underreported, so I'm not exactly sure of the precise number. And these aren't minor infractions like a rock through a window. Often these are attempts to burn these places to the ground. Right.

And in many of these cases, there have been flyers or graffiti left behind saying, if abortions aren't safe, neither are you. And we've seen in the past few days, there have been calls to violence from protesters in the streets of major American cities and also online from progressive pundits. The former Vox reporter, Carlos Maza, he's a big following, and he's been saying violence is a legitimate and appropriate response to oppression.

I think people may have forgotten how this debate has gone very deadly before, with doctors who provide abortions being killed in the name of the pro-life movement. And especially thinking of how political violence has been on the rise lately, whether January 6th, obviously at the Capitol, or in the streets of Portland and Seattle during the riots of 2020.

I wonder, Bethany and Catherine, if you're nervous that we're heading back to a place that we've seen before, only this time it's the other side carrying out the violence. Yeah, I'm very worried about it. I mean, I think that the folks who work in those crisis pregnancy centers are, I guess, literally and colloquially doing the Lord's work. That's the thing that should be happening. Those are services offered. It's conversations being had. It's moral suasion. That's the good stuff right there.

And the idea that greeting that with violence is acceptable is unfortunately part of a larger trend. Americans tell pollsters increasingly that because they perceive the other side has already violated important norms, it is now justified to do violence against them, not just about abortion, about a lot of issues.

And that I am generally I never believe in golden ageism. I never think there was a better time in the past. I basically always think the best time to live is right now. But I am convinced that the polarization in this country is uniquely newly bad. And I think it's those polls about willingness to do violence that really highlight it. And they are hyper relevant here.

So I disagree. I think that there will be isolated instances like we've seen at the crisis pregnancy centers of violence. But one of the good things and bad things about America is our growing total apathy towards pretty much everything that is immediately outside of our existence. I just wrote a column for Deseret today saying, I don't think that this is even going to sway people's vote anymore.

because they're so concerned with inflation. Ultimately, I think that most people's attention spans are of a net and that we will see sort of concern about this dissipate

after the next couple weeks when most people's abortion rights will not change. I live in Maryland. It's not going to change here. It's not going to change in New York. It's not even going to drastically change in Virginia if Governor Youngkin gets his way. It'll just

move from a 20-week mark or so to about a 15-week mark if Youngkin gets his way. So I think that there will always be extremists. There will always be the Ted Kaczynskis of the world and that they might not procreate, the opposite of procreate. There might be more of them. But all

Ultimately, I think that I count on the average American's complete apathy. And I think that once, you know, this sort of dissipates, they're going to forget and we'll have our next sort of outrage. Right now, we're in late June. It feels like January 6th was a lifetime ago.

And most Americans aren't really paying attention to that. And I think that in January, most people are going to be like, gosh, remember that Roe thing? That was kind of crazy. I think we're going to be on to the latest Meghan Markle debacle by then. My thanks to Catherine Mangu-Ward, Jeffrey Rosen, and Bethany Mandel.

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