Summary of "The End of a Grievous Error" Episode of The 47 Morning Update with Ben Ferguson

Introduction

In the episode titled "The End of a Grievous Error," released on January 9, 2022, host Ben Ferguson engages in a comprehensive discussion with U.S. Senator Ted Cruz about the landmark Supreme Court case, Dobbs v. Jackson Women's Health Organization. This case holds significant implications for the future of abortion rights in the United States, potentially overturning the nearly 50-year-old precedent set by Roe v. Wade. The conversation delves deep into the legal arguments, the roles and leanings of Supreme Court justices, and the broader societal impacts of the case.

Supreme Court Dynamics and the Potential Overturning of Roe v. Wade

Senator Ted Cruz begins by expressing cautious optimism regarding the Supreme Court's deliberations in Dobbs v. Jackson Women’s Health Organization. He states, “Having listened to the argument, I would be shocked and even astonished if the Supreme Court struck down the state law prohibiting abortions after 15 weeks” (07:56), indicating that the Court may uphold the existing state law rather than overturn Roe v. Wade. Cruz outlines his confidence in Justices Thomas and Alito to vote in favor of overturning Roe, while expressing uncertainty about Justices Roberts, Gorsuch, Kavanaugh, and Barrett.

Cruz emphasizes that the questioning from the justices during oral arguments seemed to favor affirming state laws over overturning Roe. He remarks, “I'm much more optimistic today than I was before the argument” (07:56), suggesting that the initial fear of Roe being overturned entirely might not materialize as feared.

Historical Context and Critique of Roe v. Wade

Delving into the historical underpinnings, Cruz criticizes the Roe v. Wade decision as “terrible” and “lawless,” arguing that it was not grounded in the Constitution but was rather an invention to extend federal authority over abortion laws. He points out that Roe established a trimester framework that was neither present in the Constitution nor based on any clear legal precedent. Cruz references his book, One Vote Away, highlighting how Roe has irreparably politicized the Supreme Court, shifting it away from being an independent judicial body to a more politically charged institution.

Stare Decisis and Overruling Precedent

The discussion shifts to the legal principle of stare decisis, which refers to the obligation to follow precedent. Senator Cruz explains that the Supreme Court has a history of overruling past decisions, citing cases like Brown v. Board of Education overturning Plessy v. Ferguson. He interprets Justice Kavanaugh’s questioning during oral arguments as an indicator that the Court might be open to overturning Roe, especially given the comparison to other landmark cases that reshaped American jurisprudence.

Cruz underscores, “stare decisis is the Latin word for respecting precedent, that's one of the major factors for overturning a precedent” (25:32), highlighting the tension between maintaining legal continuity and correcting past judicial errors.

Legal Arguments Surrounding Abortion Rights

A significant portion of the conversation focuses on the constitutional arguments related to abortion. Justice Clarence Thomas questions what constitutional right protects the right to abortion, to which Cruz responds by dissecting the origins of the "right to privacy" argument. He contends that Griswold v. Connecticut, which struck down laws banning contraceptives, was a manufactured case lacking direct constitutional basis. Cruz asserts that Roe and subsequent cases like Casey have created legal justifications for abortion rights that do not explicitly exist in the Constitution.

He critiques the use of vague terms like "liberty" in the 14th Amendment to justify abortion rights, arguing that such interpretations are overly abstract and not tethered to the Constitution’s text. Cruz states, “accumulating lines of reasoning that gottens from legal metaphysics do not establish a legitimate reconsideration of existing statutory laws” (22:35).

Economic Arguments and Societal Impact

Listener questions brought forth by Liz Wheeler address the economic arguments used by the pro-abortion side, particularly the notion that childbearing and rearing impose financial burdens on women. Cruz challenges this by highlighting the availability of adoption and safe haven laws, which provide alternatives without imposing economic hardships. He points out that for every newborn in adoption, there are approximately 36 couples eager to adopt, effectively negating the economic argument against carrying a pregnancy to term.

Michael Knowles adds that reducing the issue to economics diminishes the intrinsic value of human life, stating, “your kid is made in the image of God and to some degree in your image and is worth more than dollars and cents” (45:35).

Ensuring Judicial Integrity and Reducing Politicization

Senator Cruz addresses concerns about the politicization of the Supreme Court, especially if Roe is overturned. He references Justice Sonia Sotomayor’s remarks about the Court's image and echoes the sentiment that returning the authority to regulate abortion to the states would depoliticize the judiciary. Cruz emphasizes that having unelected judges making such consequential decisions contributes to societal division, a situation Roe has significantly exacerbated.

Notable Quotes

• Senator Ted Cruz:

  • “[...] I think there is a very real possibility that this court will do what the Court has been unwilling to do for nearly 50 years, which is overturn Roe versus Wade and return the authority to make decisions [...] to the states and return them to the people.” (07:56)
  • “[...] the consequences of overturning Roe are not that abortion is suddenly illegal. [...] It was lawless, that was wrong, that was not tethered to the Constitution.” (07:56)
  • “Roe vs. Wade established the trimester system, which Justice Blackmun made up in Casey, the joint opinion [...]” (33:01)

• Justice Clarence Thomas:

  • “What constitutional right protects the right to abortion? Is it privacy? Is it autonomy?” (14:27)

• Michael Knowles:

  • “So simple question from Justice Thomas. What right are we talking about? [...] What is the right to abortion?” (15:16)

Conclusion

The episode provides an in-depth analysis of the potential overturning of Roe v. Wade through the lens of Senator Ted Cruz, who offers a critical perspective on the legal foundations of abortion rights in the United States. By examining the roles of Supreme Court justices, historical precedents, and the principle of stare decisis, the conversation sheds light on the complexities surrounding this pivotal case. Additionally, the discussion addresses economic and societal arguments, emphasizing the broader implications of judicial decisions on American democracy and individual rights.

Final Thoughts

"The End of a Grievous Error" serves as a pivotal episode for listeners seeking to understand the intricacies of Dobbs v. Jackson Women's Health Organization and its potential to reshape abortion laws in America. Through expert insights and detailed legal critique, Senator Cruz navigates the listener through the evolving landscape of Supreme Court jurisprudence and its profound impact on constitutional rights.