Episode 103

With the overturning of Roe v. Wade in June of 2022, the reactions have been at once intense and galvanizing on both sides all over the country. We have found, however, that many responses are shaped by misinformation and incorrect assumptions, supposing the ruling does something it does not actually do. What exactly does the overturning of Roe v. Wade mean for the country as a whole? What does it mean for the states? What legal and social ramifications are there, and how should the church consider them? Join us as we explore these questions with lawyer Mike and his brother Sam on the Removing Barriers podcast.

Breyer, Kagan, and Sotomayor really want to just look kind of at the prevailing winds of society as of today. And if you take that reasoning far enough, society could go in a fashion that we start conceding restrictions that that maybe society today would never have even anticipated. And the defense would almost say that unexpected restrictions of rights that perhaps people on the left or people on the right would never want our Constitution to protect could be discerned out of the Constitution so long as the society as of that moment viewed it as fundamental. And that’s a very unprincipled, ungrounded way of interpreting the word liberty and interpreting the Constitution.

Thank you for tuning in to the Removing Barriers podcast. I’m Jay. And I’m MCG, and we’re attempting to remove barriers so we can all have a clear view of the cross.

This is episode 103 of the Removing Barriers podcast. And in this episode, we will be exploring the major decision by the Supreme Court striking down Roe v. Wade and the legal and social impact it has and will cause. And joining us in this episode is a rivalry that is as old as time, true as it can be. Sibling rivalry. We have two brothers. Sam is no stranger to the Removing Barriers podcast, as he has been on several episodes. Sam is the older brother, but not as smart. Michael is the younger brother, but he’s the smart one because he’s a lawyer. Sam is like me, a measly software engineer. Gentlemen, welcome to the Removing Barriers podcast.

Thank you. Thanks for having us. Although I don’t know about the jab there. I know, right? I’m still a little bruised from that. I hardly disagree with the jab. All right, well, guys, we’re glad to have you. I can call you Measly because I’m a soft engineer just like you. And of course, we met in college in soft engineering class, and you introduced me to the smart one in the family, Michael. So that’s good.

All right, let’s jump into it. We’re talking about abortion, the legal and social perspective. So the Mississippi Gestational Act age provides that except in a medical emergency or in the case of severe fetal abnormalities, a person shall not intentionally unknowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to greater than 15 weeks. All right, so that’s the Mississippi Gestational Act, the Jackson Woman’s Health Organization, an abortion clinic and one of its doctors challenger act in federal district court. The case Thomas E. Dobbs, the state health officer with the Mississippi State Department of Health, versus the Jackson Woman’s Health. The ruling of Dubs v. Jackson Woman’s Health Organization has caused a stir, to put it lightly.

So, Michael, since you’re the lawyer, we’ll start with you. What does this ruling mean for abortion rights in this country? Well, yeah, the ruling in Dobbs only deals with the constitution, right. So there’s a lot that will discuss almost as if dab bans abortion, which is not at all the truth said. It’s just an interpretation of the constitution determining whether the states can be part of the conversation. So I would say the ruling in dodge starts a meaningful conversation amongst the citizens of various states to determine what direction they want their jurisdiction to go in, and it also starts a federal conversation. There’s noise of federal legislation, some would say codifying rogue versus wade, and there’s also discussion of federal legislation protecting the life of the unborn. And now it starts that ability for us to be able to have a dialogue. Any interjections ma’am? I agree with mike. The supreme court justices, I think, made it very clear in their opinions, the majority opinion, that this goes back to the states. So this doesn’t at all make it illegal at the federal level to have an abortion. It just means that the states now have jurisdiction over the issue, which you seem like it should be based upon the night amendment. You know, that’s a good question. That’s probably something more mike can answer. I know for me, I just look at when it comes to other cases of life and death, a lot of those issues are decided at the state level. So as far as I’m aware, there’s not any federal law against murder in general. If somebody wants to murder another person, unless the federal government is somehow involved, maybe like if you assassinated a federal official or something, you might have an issue there. But generally when I see murder cases tried, they tried at the state level. So it makes sense to me that abortion would be similar. Abortion is murder, so it would be dealt with at the state level, I would think.

Yeah, I completely agree. It’s interesting to try to discern what constraints might apply to the states. So I was recently looking in dobbs. Justice solito mentions other substantive due process cases, and I think we might discuss substantive due process in a great length in a little while. But prior to the enactment of the 14th amendment and I believe it was 1868, the bill of rights pertained and constrained only the federal government. So thus the nineTH amendment itself would also only constrain the federal government. And then we have the 14th amendment, part of the reconstruction era, post civil war, attempting to get the states to respect the rights of its citizens regardless of ethnicity and other statuses. And then we have the supreme court looking to the qualities in the 14th amendment to see really what rights are protected by the 14th amendment. And for the most part, the supreme court has concluded that all of the rights under the bill of rights, the first eight amendments, are for the most part protected under the 14th amendment. So is the 9th amendment included amongst that? It will be interesting to see how that aspect of the law developed. I was reading a little bit of the history recently, and the potential justice Robert Bork during his confirmation hearings was asked, what does the 9th amendment mean? And I just happened to have in front of me it says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. And Mr. Borg, who was up for potential appointment to the supreme court, called that constitutional amendment basically an ink blot, saying it’s hard to discern what it means. You described a piece of paper, and if you have words on a piece of paper and then it’s blotted out by ink, you stare at it and do you apply what’s under the ink blot or no potential justice work, he wasn’t appointed fixed a position that he couldn’t at the time figure out what it meant. So it couldn’t be applied. And I don’t think that’s probably the proper approach at all. I think all the terms in the constitution have meaning. We have the job of trying to figure out what it means, but definitely the 9th amendment is a challenging provision to apply. All right, let’s park there for a little bit, because I just recently, in preparation for this, decided that I’m going to read the constitution of the United States once again.

And since we’re talking about the 9th amendment so the enumeration of the constitution of certain rights shall not be construed or denied. So I’m looking at it, it’s saying the enumeration. So I’m saying everything else before this. You could correct me if I’m wrong on this, but this is my limit. We’re looking at everything else before this, which is a certain rights they should not be denied, others retained by the people. So it seems like you say that there are other rights that are not mentioned, that the people have, but we’re not going to mention here, but they should not be denying those rights. What are those rights? It didn’t say, but there are some rights. Is my layman’s with looking at this correct? I think so. I think there’s plenty of room for debate as to what it means. But I think that’s the general understanding, my understanding of the history is when the founders enacted a constitution and shortly thereafter ratified the bill of rights, there was debate as to whether we should have a bill of rights in the first place. Because the idea was if we enumerate certain rights, first amendment, second amendment, so forth and so on, then does that almost suggest that our government of limited powers, almost, that it’s limitation is constrained to only what’s in the bill of rights, and that otherwise the federal government can infringe on other rights that we didn’t think to put into the bill of rights. It’s kind of interesting. Our federal government is one of limited powers. But then the idea was once we start enumerating certain areas to which the federal government specifically could not go. Does that almost disparage other rights? So to alleviate the concern of some of the founders, the 9th amendment likely was enacted to show that there are other rights that aren’t enumerated in the bill of rights. We just don’t know what those are. All right, well, the question would be, I guess, later on, is abortion one of those rights? But we’re not going to go there yet.

So I’m looking at the 9th amendment. And that’s very interesting about the whole idea of by explicitly stating what the government can’t do, does that open up the government to be able to do other things because it’s not denied? But I guess another thing I’m looking at that the 9th amendment, to me, it seems to do, is it suggests that there is an order of precedence, if you will, for our rights as well, because it says, the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. So I guess maybe you could say that this is a government’s right versus people’s right. But also I’m wondering if it’s one person’s right versus another person’s right. It’s not clear. The 9th amendment is not clear to me. But I wonder if it’s suggesting that you might use this maybe again. I’m not a legal scholar. But I’m just looking at this from a lay perspective and that of a programmer and saying you might suggest that one person might have a right to life and another person has a right to free speech. But you’re not allowed to yell fire in a crowded theater because now you’re denying people their right to life because of trampling. I wonder if the 9th amendment is kind of also intended to address that issue. If one took that interpretation that the 9th amendment protects a variety of different rights, that’s really interesting. If that perspective was adopted, then that opens up a conversation regarding the rights of the life of the unborn. So Rover Suede discusses whether the unborn are people under the 14th amendment in its use of the term persons. But if you look at the 9th amendment as well, that would add an interesting part of the conversation. What about the rights of the unborn? Even if somebody interpreted the constitution, the 14th amendment is not protecting the rights of the unborn as persons of the word is used in the 14th amendment, then that raises the question to the 9th amendment.

Yeah, all three of us, except my lovely wife Jay, graduate of the same college, I’m not going to mention. But it’s interesting that when I was doing American government in college, I’m sure you all of you probably had to do that class as well because it was a required class, at least for me. And I remember the teacher talking about the night amendment, and I remember thinking that I don’t understand one thing he’s saying, and I don’t think he understand what he’s saying neither, because it just seems like, I don’t know, I dumped the fire. I guess it was just my impression of what he was trying to explain. But I’m sure the amendment is going to come up again. But let’s go into a little bit of Roe v. Wade. I was going to ask Michael a question because he mentioned that it would be interesting to hash out the tension between the 9th amendment and the 14th amendment when it comes to abortion, because of course the 14th amendment has that term persons. I wanted to go back to Roe v. Wade and establish or at least try to flesh out what the constitutional premise of the majority opinion was. Because from what I understand. And I have a very limited understanding of anything legalese. But from what I understand. Is roe v. Wade passed because they’re saying that the due process clause in the 14th amendment covers the woman’s right to privacy when it comes to her pregnancy. Terminating her pregnancy if she desires to. Is that what it actually was? Or we misunderstanding how the supreme court used the 14th amendment in order to basically legalize abortion at the federal level, at the national level. I think that you summarized it accurately, and it’s a fun topic because the complexity of the discussion of how the 14th amendment could be used to discern the right, privacy, and many of the other rights that we’re acknowledging now, it’s so complex because it is a little bit of a legal fiction. So we discussed earlier, I’ll just kind of summarize my understanding of how we arrive at substantive due process. So, of course, our federal government is one of limited powers, and the bill of rights constraints only actions by the federal government. And then we come to the reconstruction era, and we have the adoption of the 14th amendment, which is designed to protect the rights of African Americans, blacks, and other ethnicities in general. But it uses very broad terms to help protect individuals from state incursions on their fundamental rights. And there are three primary qualities that kind of go into this discussion. We have the privileges or immunity clause which says that citizens shall not have their privileges or immunities abridged the due process clause saying that state shall not deprive any person of life, liberty, or property without due process of law. And then we have the equal protection clause saying that the state shall not deny any person within its jurisdiction equal protection of the laws. So while the constitution, when it comes to the amendments, is constraining, the federal government in the 14th amendment comes in the 1860s and changes our understanding, or really changes the way that the constitution applies to protect the rights of individuals from incursion by the state.

What exactly does that mean? Well, then we have an unfolding of a bunch of supreme court cases after the enactment of the 14th amendment where we start identifying different bill of rights provisions that are protected by the 14th amendment. And there’s a debate about whether this interpretation should be or whether this constraint on the state should be accomplished through the privileges or immunity clause or through the due process clause. It seems to make a whole lot of sense. And justice Thomas, of course, has made this point clear in many, many of his opinions that the privileges or immunities calls is what constrains the state where it says, no state shall make or enforce any law which shall ablade the privileges or immunities of citizens of the United States. So that then brings us to the question, what is a privilege or immunity? And Thomas has noted in some of his opinions that the supreme court has interpreted that pretty narrowly. So those who want to discern other rights that are kind of outside of the narrow scope of the words privileges or immunities look to another call. They’re trying to find a way to constrain state action, and then they look to do crosses falls. It’s interesting, we’ve used the term multiple times in our meeting. From a layperson’s perspective. I think we lose something that from a lay person’s perspective. You look at the due process walls. And it vary apparently from a plain meaning. Since protects a person’s right to process through a fair process. And thus says that somebody’s life. Liberty. Or property can be taken away by the state government. By the federal government. So long as due process is properly followed. But then the supreme court has decided to take on a substantive interpretation of the due process laws and thus says that there’s certain fundamental rights, substantive rights, that are protected by the due process clause, which thus gives us the incorporation of the first amendment against the states right on through many of the other amendments. And then in dobbs tim’s versus Indiana, cited as the most recent example, where a portion of the 8th amendment, the prohibition against excessive fines, which once only constrained the federal government, is then brought within the terms of the due process clause as protecting. In this case, it was a drug dealer who was convicted, and I think one of his high priced vehicles, a vehicle that was over $40,000, was complicated by the state, and that was considered an excessive fine. And justice ginsburg went through historic analysis and said the 8th amendment is a concept that is fundamental to our system of justice, deep rooted in our history and condition, and thus it applies to the states as well. So we see a bunch of amendments being incorporated against the states. And now in the discussion on abortion, we see the word of liberty being used to expand substantive rights that otherwise we wouldn’t be in the constitution.

Yeah, you saw a lot of things. I’m not quite sure where to go from here, but let’s do this? How about we define the process, especially procedural and substantive, because the way I look at it, procedure is basically due process, that the government must follow the outline in the Constitution, you have to follow them, and then everything outside of that, it will be substantive due process. Explain that before I go into the next question, because I think that’s important because we’re using those terms a lot thus far. Due process would generally be viewed as requiring two things notice and hearing. And there’s kpop that helps flush that out. So if you’re going to have your life taken away from you, I think you definitely want to have notice to be able to represent your position, your defense. So notice of the proceedings against the individual and the hearing they’re hearing, to be able to state your position and articulate why, under the law, your life, liberty, or property should not be taken. So that’s that procedural aspect following the proper procedure to determine whether someone’s life, liberty, or property can be taken. And that’s really the plain meaning understanding of the Due Process Clause. But then again, the Supreme Court, over time, over more than 100 years, has divined out substantive rights that are protected under the due process balls as well. And the key word for much of the discussion is the word liberty. Let’s try to define what really is liberty. And they’ll say that that protects a certain number of fundamental rights, such as the right to privacy. And they’ll look to other constitutional amendments as well to kind of cobble together an argument that liberty protects certain substantive rights like privacy and abortion and marriage of various forms, et cetera. So we have Roe v. Wade, where the Supreme Court decide we have a constitutional right to abortion, and they also establish this weird test of viability, of where the fetus must be viable at a certain point, or whatever case, maybe you can ban it and all that stuff. Then we have another challenge to the Roe v. Wade, where we have Casey versus Planned Parenthood, where the Supreme Court rule and kind of slim down and remove some of the viability staff from Roe v. Wade. Let’s kind of jump into Casey versus Planned Neighborhood and kind of establish what Casey established versus what Wade established, and then all we have doubts which kind of just do away with both of them.

Casey is an interesting one in the sense that when you look at Roe versus Wade, some would say that it has two holdings. One would be a central holding of just a fundamental right to abortion, and then it would be kind of an application as to how to balance the interests of the state in regulating abortions, depending on the reason for why it does that, whether it’s to protect the lives of the unborn or whether it’s to maintain safe setting for the medical procedures. So the state has some interest in regulating abortion. So it says Row, but then there’s also this right to privacy that forgets a right to abortion. So thus Row establishes kind of a three part scheme where I think it’s based on the Trimesters or something along those lines, where a state can’t regulate an abortion earlier on in pregnancy and then it has ability to regulate a little bit more further on pregnancy and then even more later on in the pregnancy. So many would say that sounds a whole lot like a piece of legislation rather than judicial interpretation. So then we get to Casey and the majority. Or when you pull together all the Justices opinions, they ultimately conclude that the central holding of Roe shall stand that there is a right to an abortion under the Board liberty and the Due Process Clause, but the legislative aspect of Row has to be done away with. So the Court really doesn’t defend that aspect of Row. And thus they just say viability is kind of the dividing line between when the state can regulate and when they can’t. So if it’s a free viability pregnancy that they can regulate vice versa. If it’s previability, the state may not regulate. But then once we get past liability, then there’s an ability to regulate. Interesting. Do you have anything to say on that, Sam? No, not really. I think I’m going to defer a lot of the legal questions to the legal minded. I don’t have anything better to say, if you will. I’ll add in, it is just interesting that as we get toward Jobs, there’s a discussion of sorry, decisive. That we need to make sure that we retain a prior decision, even if it was wrong is certainly what those on the pro choice side of things would say. But Casey itself overturns aspects of Row. I think that’s not a deciding point in the story. Decisive discussion, but some would suggest that Casey was almost a super precedent, which there’s not really a legal basis for saying that, but because it’s precedent on precedent, somehow it makes Row all the more enshrined as a fundamental aspect of our constitutional Supreme Court jurisprudence. But Casey overturns portions of roe.

Yeah. So actually, since we’re talking about precedents and super precedents, which to me sounds kind of silly, but I think we can look at many other decisions in the past that were made that later on we decided we’re not the right decision. So in the past it was held that black folks weren’t 100% human and then later on we changed that. And I don’t remember the cases, but perhaps Mike can recall cases like that, but we’ve had precedence before that we’ve overturned. And I think a lot of people today would agree that those needed to be overturned. And I feel like in this case, Roe v. Wade and the Casey versus Planned Parenthood and other cases like that, I think those are cases that whether they should be overturned or not. When you make the argument that it’s precedent and it should never be overturned, we can look back at other cases and say, well, yeah, there are precedents that should be overturned and this might be one of them. Yeah. Wasn’t that what Robert was saying?

What a lot of folks have realized is that Mississippi won six to three, because Robert was with the majority saying, yes, Mississippi should have a right to do this. But to overturn Roe v. Wade and Casey, Roberts actually pulled out and it was five to four, and he was making a similar argument that, hey, we have a precedent here, we shouldn’t overturn it. That’s interesting. Yeah. I wanted to read Robert’s opinion, but I hadn’t been able to take a look at that. I’m going to have to read it now. Yeah, it is interesting. So we see, even with Roberts’approach, the slow unraveling of Row. So Row gives us this three part legislative scheme, put legislative in quotes because of support, that’s given the interpretation, then Casey says, do away with this three part system. Let’s just have a viability line for when states can begin regulating. And then the court was to adopt Chief Justice John Roberts. Approach. We would see Roe unraveling all the more saying rather than there being a viability line, there simply Roberts says it has to be a reasonable opportunity for a mother to obtain an abortion. And thus he says 15 weeks. As the Mississippi law had the line for when an abortion could be had and when it couldn’t be had, 15 weeks would definitively be a reasonable opportunity. So that’s part of viability viability somewhere between 22, 23, 24 weeks of gestation. But Robert is saying that he’s able to preserve the central holding in Row, but kind of bass pedals in Casey from viability to 15 weeks. And that would still be constitutionally permissible without him overturning. That even seem more messy than what Ro established, though. Yeah, right. There challenges. How does that work? It’s just that it’s unworkable as well. Same. Yeah, no, I was going to say it is interesting to me also with Roe, because it almost seems to me like they passed Row. It did seem to be a little very weak legal argument that came from the justices, but they tried to make it more tenable. I know the political side was that the whole idea is abortions are going to be something like safe, rare, and there were like three points, but they were talking about how it was going to be safe and rare. But then it seems like after a Row, and they just use that to open up the door. Then they had other cases like Casey, which seemed to just blow the gates wide open. Instead of abortions being, quote, unquote, safe and rare, they became quite prolific. I know later on in the podcast you want to go over some of the stats, but if I understand correctly, I see that there’s something like two to 3000 abortions every day conducted. And that doesn’t sound very rare to me. That sounds like a lot.

Yeah. Why don’t we go into a break and we’ll come back and talk about whether or not the Constitution gave women the right to privacy and if abortion is an issue of privacy. You’re listening to Removing Virus Podcasts. We’re sitting down with Mike and Sam, two brothers ganging up against each other. We’ll be right back.

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All right, guys, so we are talking about more about the legal aspect of it and stuff like that. Let’s kind of cushion towards the issue or the matter of privacy because a lot of the decisions or the defendant decisions that were made seems to be pointing to the privacy that the Constitution gave a woman and stuff like that. So with the defense from the tree justices in mind, does the Constitution give women the a right to privacy? By extension, give them a right to abortion? I think the holding in Dubs certainly doesn’t undo the constitutional interpretation of a right to privacy. It just addressed whether there’s a right to abortion. And the defense really it’s just interesting. The defense that you just mentioned from Justices Ryder, Sotomayor and Kagan. For the most part, Sears clear of the constitutional question and its biggest threat is most scholarly treatment is on the issue of starring devices. And they take issue with the idea that a decision, if it is egregiously wrong, that that alone is sufficient grounds to overturn it. Instead, they think that story devices requires more factors than just egregious strongness to allow it to be overturned. And I don’t think that fully captures the majority opinion. The majority definitely analyze multiple factors workability, reliance, interests, changes in law and fact. But for the most part, the dissent tries to focus on just the agreed is wrongness, and so that’s not good enough to overturn it. I was disappointed in the descent, particularly because I’ll just mention justice Breyer is the author of the opinion. He takes off numerous aspects of Justice Alito’s majority opinion out of context. There’s one area where he is discussing Justice Alito’s treatment of the history and the tradition, trying to discern whether there is. A historic basis for there to be a constitutional right to abortion or whether it’s historic basis for a right to abortion to be fundamental. So, of course, Justice Alito scours the history, and he goes way back to the Magna Carta 15, I think, and kind of starts his analysis there. One would think that those who would be pro choice would appreciate Scouring as far back in history as possible to see if there’s any historic precedent for a fundamental right to abortion. But instead, Justice Breyer and his descent just has this unique line where he notes that Alito goes back in history and ridiculed lito for going back to the 13th century. And he puts an exclamation point by it almost as if Alito is trying to bring some barbaric medieval customs into our constitutional jurisprudence. But again, he’s taking Alito’s opinion way out of context. The whole point is to assess the history and to determine whether the word liberty encompasses that. And that’s how the substance abuse process analysis works. Even if one looks at Ginsburg’s opinion in Tim’s from 2019, we’re talking about the 8th Amendment, bringing in the 8th Amendment, justice Ginsburg goes back to the Magna Carta. It makes sense, trying to check our English traditions, our English backing to go into that, to determine whether certain rights are fundamental.

So there’s many aspects of buyer’s opinion where you take certain aspects of Alito’s opinion out of context, really just make kind of a personal attack rather than a legal discussion. And then there’s another area in his opinion where he even suggests that the majority knows nothing about moderation or something along those lines. And then there’s one other aspect in the opinion that I thought was unique, where Justice Breyer criticizes the majority for not spending enough time addressing the impact that its decision will have on women. And of course it’s very important, but from a legal standpoint, definitely Justice Illegal wants to get the Constitution right, but Justice Breyer criticizes that and says there should have been more discussion about the impact on women. And then he concludes by saying, clearly the Justices is the majority, he says, don’t care about women or they know nothing about women. I think that’s remarkable because he forgets that Justice Barrett is part of the majority. I think he also forgets that many of those justices are married. I’m trying to think if any of them are not, and I can’t think of any bachelors right. Yes. Do they have a point in terms of should women have a constitutional right to privacy and to abortion? So I have a question related to your question, and that is, where does this idea, and perhaps Mike might have the answer to this where does the idea of a right to privacy come from? Because for me, when I think of a supposed right to privacy, I think of maybe the Fourth Amendment and maybe the Fifth where the government can’t go through our papers, except through process warrant or stuff like that. And then the Fifth Amendment, where you have the right to remain silent, you have the right to not incriminate yourself. And so to me, those two would establish some I guess you might call it a right to privacy. The government can’t just get into your personal effects without some process. And so other than that, like when they’re talking about our right to medical privacy, I know we have laws passed, these aren’t constitutional rights, but they’re just laws passed that protect our supposed to protect our medical privacy. But this whole idea of a constitutional right to privacy, I’m not exactly sure what people are talking about. It stems from a decision from the Supreme Court in 65, Bristol versus Connecticut, which establishes for discerning the constitutional rights to contraception. And their approach is to cobble together many amendments in the Constitution, like you had mentioned to him. So the Fourth Amendment, the Fifth Amendment leave the First Amendment the right to freedom of speech and freedom of religion, and then it also looks to the 9th Amendment, which we had discussed earlier in the podcast, inspecting other unanimated rights, and it kind of cobbled it all together. But rather than taking a textual approach to trying to analyze those amendments individually, instead it discerns. I think the term is penumbra, which I’m not even sure what that means. That’s shadow. There we go. Okay. It determines the background, I guess, with a shadow from those amendments, and ultimately concludes that there is a protection for right to privacy.

But to your point, Sam, I was reading the dissent by Justice Rehnquist in row, and he says, sure, let’s just say that there’s a right to privacy. Justice Rinco says he’s not sure how right to privacy equates to a right to abortion. So if we look at the Fourth Amendment, I mean, if there was a criminal law, criminalizing women who obtained an abortion, if that existed, which of course a lot of the states have laws that bring criminal penalties to the petitioner who forms abortion. But let’s just hypothesize, if there was a criminal law making it illegal and putting criminal penalties on a lady who came in abortion, then the Fourth Amendment will protect her from an unreasonable search or seizure to determine whether she had an illegal abortion right. So the Fourth Amendment in men, women, red and yellow, black and white, they all have Fourth Amendment protection. But then there’s right to privacy. Kind of discerns the shadow. The penumbra from it. And then tries to establish a privacy right over yeah. I guess in that vein of thought. If I was to well. Not me. But let’s say somebody were to murder somebody. Right. Then would we say. Oh. Well. They have the right to murder somebody because in order to find out whether they committed a crime. We’re now violating the right to privacy or something. They have the right to keep the murder private. I don’t understand it. That might be kind of what you’re saying Grenquist was suggesting. I don’t know, but maybe not in such a bold example. Yeah, it’s real misled, but when process comes in there, at this point, if you murder someone in your process, the government is going to investigate and basically arrest you or whatever the case may be. And at that point, some of your rights are taken away from you. If the police have probable cause, I think it’s probable cause that they need, they can search your car, but if they don’t, they can search your car. So wouldn’t that come in at this point? So let’s say, hypothetically that a woman has an abortion in a state that is illegal. Would they be able to get a blood sample to prove that she was pregnant and then she’s no longer, because of the low level of hormones in the blood? Is that the privacy issue that we’re looking at here? That you can’t take a sample of my blood, you can have me take a pregnancy test or whatever the case may be to prove that I’m no longer pregnant and I was? It’s a good question. I really don’t know how this ties into privacy. I’m trying to think of how it would I guess maybe, I don’t know. OK. One, and this is quite a stretch, you could say that it ties into a woman’s privacy because if she doesn’t get the abortion, then it becomes known what she’s been doing. I don’t know. How does this tie into privacy? In this way, and I’m not defending abortion, but in this way, is that you’re forcing me to give you a blood sample or you’re forcing me to take a pregnancy test or whatever the case may be, which in normal situation, that should be something private. Yeah, but to enforce abortion laws, at least the way they’re written today, it’s just like the clinics aren’t allowed to operate. So this has nothing to do with a woman’s privacy. This is the government enforcing actions against a clinic or a doctor. So I don’t even see, unless I’m not understanding the laws here, I don’t see how this has to do with the individual woman and her medical history. Right? Yeah. So then even if we go to the privacy right, it’s not even counting much like a woman’s privacy right. As much as a practitioner’s privacy right. The way that many of the states that are regulating abortion are intended to do so. And again, that practitioner has Fourth Amendment rights as well, just types of papers. But for a reasonable search procedure. Right. XRP is breaking the law.

You’re the woman here. Should women have a right to abortion and privacy? Well, as a Christian first, absolutely not. Women do not have the right to kill their children, the children growing in their wombs. And I think perhaps we need to backtrack and perhaps evaluate as a country and remember what is a right as opposed to what is law. Cause there are a lot of things that are written down in law that do not honor God and we don’t have the right to do those things. Whether or not you’re saved, interestingly enough, whether or not you’re saved, you don’t have the right to violate God’s law. You don’t have the right to break God’s law. There are consequences for that. Of course, we’re tackling this from a legal and social perspective. Let’s take it from that perspective. Okay? So obviously we’re not just talking about the life of the woman here or the woman. There are two people involved here. There’s the woman and there’s the child in her womb. And I think without being able to express it in legal terms, it is incumbent on any society, on any people to defend and help and protect the most weak and vulnerable among us. And I can’t think of anyone more vulnerable than the life that’s in the womb, the child in the womb. Of course, I’m preaching to the choir here with talking with you gentlemen, but perhaps there’s someone in our audience that thinks that this is indeed a woman’s right and she could do what she wants with her body. Obviously, we’re not talking about one body. One of the things that I wonder about when we talk about all of these different decisions that the Supreme Court have come to these conclusions the Supreme Court have come to, the law at state level has come to I’m afraid that with each law being made, these precedents being set, each one is taking us further and further down a path of destruction. And I hate to sound so pessimistic about it because generally as a people, we don’t even know what we’re here for. And so we make all of these laws to prop ourselves up as individuals. I think we’re forgetting the greater context of society as a whole. And I don’t even know how that works out in terms of Christian. I mean, in my mind, that’s a question of Theony versus what we have going on right now. In a Theony, absolutely everyone is to bow the knee to the law of God, to God himself, to Christ, and obey that law. And if you don’t, of course there are repercussions for that. But that’s not the reality that we’re living in in the United States. We’re living in a pluralistic society where some believe in, some don’t. And so if we as Christians are to be active in the legal realm of things, should we come at it with the intention or with the desire to have everyone bowed in either Christ right now? Or are we to simply bide our time and vie for what’s right until the Lord returns? That’s something that I’m struggling with right now because in the context of abortion, I’m abolitionist. I want all abortions to stop immediately. And I don’t like this gradual thing that we’re doing where this law has to be repealed. Then that law, then that law, then we’ll just gradually get there. We’re going to gradually figure out where does life begin and then it’s just a gradual step toward getting to the end of abortion. Whereas I would like abortion to stop absolutely right now, I don’t know if I’m being idealistic about it and I’m pushing for a world that will only exist when Christ returns or if this is something that Christians should be pushing for. I don’t know. This was a long, roundabout way to say whether or not the woman has the right. Because if you were to ask me, she absolutely does not have the right. Terminate the right right now. Abolition of abortion right now. But I’m not sure that’s practical in the world that we live in today. Sorry, that was a bowl of spaghetti, I realized.

I think that is what makes the job decision, in part, so exciting, and that is that there are really difficult questions for us to discuss and for us to address the moral issue. Now, previously, politicians, individuals, could hide behind Roe v. Wade and Parenthood versus Casey and really say there’s not really much conversation that can be had. But now all of us get to join that conversation and determine where we want our country to go. So that was that the case. Then michael Christians really couldn’t tackle this thing until we abolish it on the federal level so that at least individual states could actually begin to have the discussion. Is that what you’re saying? Right. Yeah. Of course, on a very individual level, we all can have a discussion about how unplanned pregnancy she should be handled. So on an individual level, the discussion, of course, went on under the regime of Row. But as for a policy making approach, whether there should be abolition and abortion outright in an individual state or in multiple states or even on a federal level, that conversation was deepened by Roe. The conversation wouldn’t go anywhere. But for bringing the case all the way to the Supreme Court and presenting one more opportunity for the Court to get the issue right. The conversation is a lot faster. We can really discuss where do we want our state to go, and it can even motivate us for the ballot box in November. If Christians and people who believe in the Bible don’t turn out in November, we’re going to have a very different scheme. We’ll probably have federal legislation codifying Row very soon. So the motivation to get the issue right, even at the ballot box this November, could that be applied to other decisions that the Supreme Court have decided? Let’s take, for example, Loving, Virginia, where basically the right to interracial marriage, or what they call interracial marriage. We know it’s not interracial. It’s all one race. But if we say this about roe, wouldn’t that apply to any other decision that the Supreme Court has handed down in recent times? What if later on we decide, I don’t know, laws come down where the question of interracial marriage comes back into the spotlight and the Supreme Court say overthrows Loving versus Virginia? Can they use that same reasoning as well? So isn’t that in jeopardy? Two things. One, the majority stresses that abortion is unique and we hit on that issue multiple times in our conversation. We’re talking about two lives, the life of the mother, I’m talking about the life of the baby. So abortion is very different from the Court other substantive due process holdings, even in a burglar discerning A, constitutional rights, homosexual marriage and many other precedents. So very different issue. So since the majority now of course, the dissent tries to merge the issues together and scare society thinking that other precedents are on the chopping block. But then more significantly, and I think this is just remarkable when you look back and lead Loving versus Virginia, it recognized a constitutional right interracial marriage, but it did so fundamentally on a different provision of the 14th Amendment. So we talked about how there’s three different clauses that are really part of this conversation the Privileges or Immunity clause, the Due Process Clause, and the Equal Protection Clause. Primarily, the Supreme Court in Loving made its decision based on the Equal Protection Clause. That’s not part of our conversation right now in discussing row. So a very different issue.

So, no, the decision in Dobbs doesn’t even come close to treating the issue in Loving. But on the very second to last page of Loving, the Supreme Court says not only does the protection clause protect the right to interventional marriage, but new process clause as well. When you look at the word liberty and when you apply our substantive process holdings, it also tests the right Pintuation error. So it’s an independent basis. It was two paragraphs in the opinion of Loving. And yet there’s some commentators who would suggest that Dobbs causing the question beholding and loving. Even if all of the substantive due process precedents were thrown out, even if what Thomas mentioned in his opinion is accomplished and Lawrence and Obergefell are overturned and reconsidered under other faults under the Constitution, that would not have a difference on the fact that interracial marriage is affected under the Constitution per the courts holding and loving under the evil detection Clause. Yeah, I guess another thing that people this is not looking at it so much from a legal side, but I’m just looking at it from a personal side. And that is people are suggesting that Clarence Thomas, who in case people don’t know he’s a black Supreme Court justice, they’re suggesting that he wants to do away with interracial marriage or like he’s trying to set this up. And I kind of find that funny because like I said, Clarence Thomas is black and his wife is white Virginia Thomas. So I don’t know if Clarence Thomas would have a personal interest in overturning interracial marriage anyway. And that being said, he is a legal scholar and if he thought that his ruling was going to overturn interracial marriage, I don’t think he would make that ruling by accident. He knows what he’s doing. And I don’t think he would do it on purpose either for the reasons I just mentioned. Maybe, just maybe, is his roundabout way of getting a divorce. I didn’t think about that. I don’t think so. But that would be a funny way to do it. I think it’s more of a smart allocation, quit by some to suggest that Thomas can’t even recognize what he’s doing with the opinions that he writes. And of course that’s not true and he wants to get the Constitution right. And this is really hypothetical because Loving was grounded on the section laws and then just added in the due process calls to further substantiated. But I think it’s significant that when you look back at Loving, it notes itself that only 16 states back when Loving was decided, at least in the 1950s, criminalized interracial marriage. And that’s horrendous policy. But the vast majority, the vast majority of the states got it right. 34 of the states got the issue right. So even if three hypothetical, but even if Supreme Court jurisprudence would turn back to pre Loving timing, which nobody is advocating for, we would be in a situation where even back in 54 of the states had the issue.

But wasn’t Loving also decided on the fact that and you can correct me on this because I don’t remember the legal term here, but didn’t they get married in DC. But they live in Virginia and Virginia was not recognizing their marriage from DC. Right? Or do I have my history mixed up here? No, you’re right. And by the way, I got the date when the decision handed down in Loving right. It was a couple that married under DC law and then came back to reside in Virginia. And Virginia made it a felony to reside in a married couple in its jurisdiction. And isn’t that protected by what? The 10th Amendment, where states have to recognize each other laws, at least in marriage, is one of them? Of course, we did the same thing for driver’s license and stuff like that. If I’m driving across state line, I don’t have to get license from every state to drive full facing credit, right, is what you’re talking. Yeah, exactly. That’s the term I’m looking for. Wasn’t that also what Loving was challenged under? Perhaps that had some of the discussion maybe in proceedings prior to reaching the Supreme Court. I can’t recall if that came up in the opinion in Loving. Loving is a really short opinion. It’s only 13 pages. Supervisor addressed that maybe to a certain extent, but primarily it was addressing the protection laws and saying that it’s almost like a separate but equal type concept that we addressed. And that is Virginia argued that it was giving you protection under the law because a white individual who is in an interracial marriage would be guilty of a felony just as a black individual or anybody of any other ethnicity. So they claim that that will be protection under the law. And the Supreme Court said, now that doesn’t really satisfy the Constitution.

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All right, so a lot of folks are claiming now that the Supreme Court has lost legitimacy. What are your opinion on that? Do you still have faith in the supreme court? Farm yeah, actually, I have a lot more faith in the Supreme Court. And even when Clarence Tommons talked about looking at other major rulings, like the Lawrence one and I forget the other one, but they’re both related to yes. To me, that does give me even more faith in the Supreme Court. I also look at their latest rulings on things related to gun rights. Let’s say, like, I forget the name of the case, but it was related to gun rights in New York. Brunette yeah. And so to me, I’m looking at what the Supreme Court is doing, and it looks like they’re actually looking at the Constitution and determining if laws make sense or if they should be upheld or turned down based off of what the Constitution requires. And it seems to me that they are. I feel like the courts return back to interpreting things according to the Constitution, and that’s their job. So to me, that improves their legitimacy in my eyes, and I’m surprised that it would hurt their legitimacy in other people’s eyes. I know the rulings may not be what they’re looking for. In fact, I even know people on the conservative side that wanted the Supreme Court to not only overturn Roe v. Wade, but then make abortion completely illegal at the federal level and the Court didn’t do it right. I would argue that the Court doesn’t have a constitutional right to do that. At least I can’t find a way that they could do it legally. And so I feel like the court is showing a lot of restraint. Really, what we’re seeing, what I’m seeing is the Court saying the federal government can’t do this and it can’t do that, and it’s also restraining, to some degree, state governments as well, in accordance with the Constitution. So I like to see that. What it’s really doing to me is it’s opening up a lot more freedom to the people because the government is being restrained by the Constitution. So, yeah, I think the court is acting in a very legitimate fashion right now, and I’m heartened by it. I think so, too. Couldn’t have thought louder. For some reason, the illustration of a parent comes to mind. Perhaps some parents don’t find themselves in the situation, but I will sometimes establish a rule for my children. You can’t do this, or whatever the case may be, or it might be that I’m correcting my child for something that I thought they did that was wrong. And then my wife, prudent as she is, will gently inform me that I got backed wrong and that my kid did not do what I thought that he or she had done. Anyway, whatever the circumstances may be, I’ll have to reverse corps. And I’m sure as parents, we all find ourselves in the situation. We find ourselves at false roads at that moment. Are we going to try to save face and either just drop the issue and not really change the approach or are we going to continue whatever the disciplinary scenario is despite the fact that the parent has the information wrong? Hopefully no, hopefully the parent will be able to pivot correct themselves if they need to and even apologize if they misunderstood the scenario and move forward. And I think that only brings greater legitimacy, if you will, and respect within the parenting scenario. Similarly, it’s good for the Supreme Court to be able to get issues right, and so I think legitimacy is added by the court choosing. Despite 49 years of getting the issue wrong regarding the Constitution and the issue in row, they decided they were going to correct it the past couple of weeks. And that’s a good thing.

Yeah, I’m in full agreement with you guys because the way I look at it, I have lost faith. Regardless of who’s in the White House and who has majority control of the House and the Senate. I’ve lost faith in both the executive branch and Congress. To be honest. I think there’s a group of people that are so divided and so into politics and everything that the Constitution means nothing to them. I felt that way under Trump and under what his name before Nancy Pelosi was the speaker of the House. I felt that way when Trump had both the Senate and the House and the White House. I lost faith in that. But the top in court, at least for the most part, to me, have tried to keep it to the facts. Of course, the term that came up a lot, especially in the New York versus Brewer and case, is text, as interpreted by tradition and history. It seems like the submit code is moving towards that text as by tradition, history. What has this country been doing or in their time on the constitutional frame? I think there’s like a 100 year period or so between that time when they normally look back at and they say, hey, what was being practiced? What is being interpreted? Because to me, in order for you to understand the constitution or interpret the constitution, you must go back to tech traditional history. You can interpret it in today’s light and say, okay, well, for instance, abortion is not even mentioned in the constitution. I doubt that the framers of the constitution were taking men. There will come a time where women are going to be terminating a pregnancy. We need to give them the right to do so. I can’t imagine that they were thinking about that, because I don’t believe abortion were that prevalent back when the constitution was framed. Quite honestly, I think the same for same sex marriage. I don’t think they were thinking, well, there will come a time in this country where a man would want to marry another man. Let’s give them that protection in the constitution. I don’t think they were thinking along that line. So I do have a lot of faith in the supreme Court and whether or not the ruling goes according to how I personally believe it should go or not, at least if I read it and it makes sense and you know what? Yeah, sure, I can understand. Maybe the constitution might give me that. But I want to go back a little bit because Jay said something about whether or not, as Christians, we should want abortion be totally banned, or whatever the case may be in the laws and stuff like that. Oh, well, I did want to entertain by the court getting the issue right in Dab. I think it also has legitimacy because it’s extensive historic, it’s very careful historic analysis, and it gives for what substance, if you process is worth, it gives historic underpinning for that analysis, so long as the court still applies that jurisprudence as opposed to substantive due process, literally being very close to cart launch, whatever the morals and principles of the justices is, goes.

And then when you look at the descent, and Dobbs, Briar, Kagan, and Sotomayor really wants to look kind of at the prevailing winds of society as of today. And if you take that reasoning far enough, society could go in a fashion that we start concededing restrictions that maybe a society today would never have even anticipated. And the defense would almost say that unexpected restrictions of rights that perhaps people on the left or people on the right would never want our Constitution to protect could be discerned out of the constitution so long as the society as of that moment viewed it as fundamental. And that’s a very unprincipled, ungrounded way of interpreting the word liberty and interpreting the constitution. So I think the gain support again adds to legitimacy by demonstrating its willingness to do the hard, heavy lifting and historic analysis and grounding the constitution in the history of our country, as opposed to the. Prevailing wind today. I want to go back real quick. You talked about the Constitution and whether it discusses abortion or not. And I don’t have an answer to that. But I wouldn’t be surprised if the Constitution does address abortion or a very close topic, and that is infanticide. Because actually, you know what? I can’t recall whether this is in the Constitution or it’s probably actually the Bill of Rights where it talks about life, liberty, and the pursuit of happiness. No, that’s the Declaration of Independence. That’s what I meant to say. Yes. Part of the Constitution. Yes. Declaration of Independence. Well, the founding Fathers, at the very least were thinking about the right to life when they talk about life, liberty, and the pursuit of happiness. And I was just kind of curious. So I looked it up and apparently back in the 17 and 18 hundreds, I found that infanticide was a huge issue from the early 1007 hundreds all the way until the mid 1008 hundreds. There’s a lot of information on several legal websites. I’m pretty sure these are legal websites like Gesture. They talk about the history of infanticide and imperiled newborns. And there’s other websites as well. They talked about how infanticide was practiced a lot to eliminate unwanted children children or into illegitimate relations, if you will, children that were defective in certain ways. So it was a big issue. And in the United States, there were several women even hanged for practicing infanticide. So I was trying to find some more details on that. It was in the 1800 when these ladies were hung. Yes, 79 women were hung. Well, actually, this is actually over a time period of 1735 to 1799. So it was an issue back then. And I wouldn’t be surprised that the founding fathers were thinking about it when they talked about life, liberty, and the pursuit of happiness. Obviously, I think they were also talking about older people and dealing with their government trying to deprive them of rights too. But I wouldn’t be surprised if they were thinking about protecting people from each other and including children in that.

So one way to think of that is if one is looking at the 14th Amendment and this use of the word liberty. If one again is going to have the substantive due process conversation. Not only should one look at the history of whether there was some type of protection for abortions centuries in the past. But also whether there was history of protections for the unborn or protections against infanticides. Like you were mentioning. And it seems like that history needs to be balanced and pulled together and a proper stock analysis. Justice Alito and majority would say there’s not a constitutional right to abortion. Right. But I wonder if that infanticide was to children that were already born rather than an abortion, which is termination of the unborn fetus. So what’s interesting with that is abortion started out as being a procedure that was only carried out in the womb. Right. And in the past the argument was that the baby was not yet viable or whatever, stuff like that. Then later on we got into late term abortion which included the baby could be pretty much already out of the mom but as long as you had part of the baby still in the mom, you could kill it. And now we even have what they call post birth abortion where as long as you have started the abortion or sometimes a lot of times people aren’t watching, if you will. So really it can mean whatever you want it to mean. But technically I think as long as you start the abortion process before the baby was fully born then even if the baby is born and is living and will continue to live under ordinary circumstances, they can still kill it because they had already started the process of trying to kill it while it was in the wound. And I would argue that, I don’t know how you could argue anything other than to say that is infanticide.

Sure. Our former governor expressed that he was in favor of so called post or post birth abortion. Literally said oh well, if the baby is born and the mother doesn’t want the child then we’d make the child comfortable while we have a conversation and see all of the options on the table. In other words, he is in favor of killing a child after it’s born. Incredible. And not in a good way, just can’t even fathom. So glad that he’s out. But anyway sorry Sam, I didn’t mean to cut you off. No, you’re fine. Yeah, I think they put a thing here though because as I was going to say earlier was that I know Jay mentioned about whether or not as Christians we should want to see abortion done away with in the laws and stuff like that. And I’ll say it sounds good if we can register to get these things and say hey, no more abortion at all. But I don’t think that’s going to ever going to happen. No, because it’s realistic. Of course. You have been under laws forever that you should not murder someone but people still murder. You have been on the laws forever that you should not rape and people still rape people. So I guess my thing is that I’m putting the onus back on us as Christian because I think that in order for the country to change for the good and we see changes in the laws and changes in people’s heart is through the gospel of Jesus Christ. And I think that Christians sometimes put a lot of focus on the legal access. What can I do legally to prevent people from doing these things? How can I go to the ballot and vote in different people to accomplish the goal or the morals I want to see in this country? I’m simply saying here that none of that, in my opinion, is going to work. None of it. We can vote in the most conservative and the most traditional president and House and Senate and all nine justices in the Supreme Court. Conservative, quote, unquote. And I don’t believe the country is going to go any better direction in terms of morality. Oh yeah, it might go under the table for some things, but I think if Christians obey the last command for Christ, which he said, go here in the all the world and preach the gospel and we see change to the gospel, that’s when I believe that we see change for the country. But I believe that, and this is a pet peeve of mine, because if you look at conservative political parades and matches and stuff like that, christians will turn up in numbers to do those things and to help the politician win. But when your church have an outreach ministry and they don’t participate, they’re saying, I believe the government and the laws can change this country rather than Jesus Christ salvation through them. And I think that’s where I go. Would I like to see abortion done away with? Sure. But I believe that it should be done to change hearts and change lives and not to the law. Because if life and hearts change, then the laws will change, but if not, we’re just going to be forcing people onto the table. Yeah. It was John Adams that said, our Constitution was made only for moral and religious people. It is wholly inadequate to the government of any other. And so getting at the hearts of the people with the gospel is what’s most important here for sure.

And we’ll end it right there and pick up the conversation in episode 104. Join us in the next episode as we continue the discussion with Mike and Sam.

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