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- [00:00]
Michael Knowles
After 48 years, the United States may be coming to the end of an error, a grievous error, one of the most grievous errors, if not the single most grievous error in the history of the United States. The Supreme Court has just heard oral arguments in Dobbs v. Jackson, Women's Health Organization, and in the coming year could very possibly overturn Roe versus Wade. This is Verdict with Ted Cruz.
- [00:32]
Liz Wheeler
Today's episode of Verdict With Ted Cruz is sponsored by American Hartford Gold. I'm sure I'm not the only one who's noticed everything is getting expensive. We are in the biggest economic crisis since 2008 with a government that's printing trillions and trillions of dollars. Consumer prices are the highest we've seen in 30 years. Inflation is certainly here to stay. And if the government continues its out of control printing and spending, the dollar could continue its freefall and lose its coveted role as the world reserve currency. So how do you protect your money? Your retirement? Your savings? Well, American Hartford Gold can show you how to hedge your hard earned savings against inflation by helping you diversify a portion of your portfolio into physical gold and silver. They'll even help move your existing IRA or 401k out of the volatile stock market into a precious metals ira. And they make it easy. They are the highest rated firm in the country with an A rating from the Better Business Bureau and thousands of satisfied clients. And if you call them right now, they will give you up to $1,500 of free silver on your first qualifying order. So don't wait. Call them now. Call 855-768-1883. That's 855-768-1883 or text Cactus to 65532. Again, that's 855-768-1893 or text Cactus to 65532. Today's episode is also brought to you by stamps.com if you've got a small business, you know that there's nothing more valuable than your time. So stop wasting it on trips to the post office. Stamps.com makes it easy to mail and ship right from your computer. Save time and money with stamps.com send letters and packages for less with discounted rates from USPS, UPS and more. Since 1998, Stamps.com has been an indispensable tool for nearly 1 million businesses. Stamps.com brings the services of the US Postal Service and UPS shipping right to your computer. Stamps.com will make your life easier. All you need is a computer and a standard printer, no special supplies or equipment. Within minutes you're up and running printing official postage for any letter, any package, anywhere you want to send and you'll get exclusive discounts on postage and shipping from USPS and ups. Once your mail is ready, you just schedule a pickup or drop it off. No traffic, no lines. So cut the confusion out of shipping. With stamps.com's new Rate Advisor tool, you can also compare shipping rates and timelines to easily find the best option. So save time and money. With stamps.com, there's no risk. And with our promo code verdict, you get a special offer that includes a four week trial plus free postage and a digital scale. No long term commitments or contracts. Just go to stamps.com, click on the microphone at the top of the homepage and type in verdict.
- [03:12]
Michael Knowles
Welcome back to verdict. I'm Michael Knowles and we are going to get into the legal arguments and the precedent and Roe and Doe and Casey and all of the law stuff that I don't really know anything about. But something I do know a lot about is personality. And frankly, I think what a lot of this case is going to come down to are the justices. So last month we heard the oral arguments where the lawyers made their case. Senators, since you're the one who actually knows some of these people, you have argued cases before the Supreme Court. What is your take on the questions and reactions from the justices?
- [03:48]
Ted Cruz
Well, listen, the short answer is I'm quite optimistic and I am very pleasantly surprised. Going into argument, I was worried about this case and I'm still worried. But I'm much more optimistic today than I was before the argument. If you look at the court right now, got nine justices on the court. There are only two that I am absolutely confident. Going into argument were going to, number one, vote to uphold the state law in question, the ban on abortions after 15 weeks. But number two, even more fundamentally, there were only two justices that I was certain were going to vote to overturn Roe v. Wade. Coming out of the argument, I'm much more optimistic than that. The two that I'm confident about are Justice Thomas and Justice Alito, both of whom have been clear and explicit that they believe Roe was wrongly decided and should be overturned. The justices that I was far less confident about are Chief Justice Roberts and then the three Trump justices, Justice Gorsuch, Justice Kavanaugh and Justice Barrett. Those are the justices really that are in play. The remaining justices on the left, their votes are clear. They're going to vote to strike down the state Law, they're going to vote to reaffirm Roe versus Wade. There's no doubting where their votes are coming out of the argument, though I'm actually quite encouraged. The questions seem to lean quite heavily in the direction of affirming the state law. So the good news is, at this point, 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. So that's a big deal. That's a major victory. And 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 and determinations and laws concerning abortions, return them to the states and return them to the people. And it's worth noting at the outset, the consequences of overturning Roe are not that abortion is suddenly illegal. A lot of people don't understand. They hear overturn versus Wade, it kind of startles them. That sounds like. Sounds like an extreme and shocking thing. For most of our country's history, abortion was a matter that was regulated at the state level, and different states could adopt different laws, and they did. And in 1973, in Roe vs Wade, the Supreme Court changed all that. And it struck down, actually struck down Texas law that protected the life of an unborn child. And it issued a decision that I believe was lawless, that was wrong, that was not tethered to the Constitution. As we've talked about a lot on this pod, the book I wrote last fall, One Vote, How a Single Supreme Court Seat Can Change History. There's an entire chapter on that book focused on life, and it begins with Roe versus Wade. I think that decision profoundly and perhaps irreparably politicized the Supreme Court. And it brought us into this world of. Of deeply political, nasty Supreme Court confirmation fights. Because if you have nine unelected lawyers decreeing the law for 330 million Americans and determining what they can make rules about and what they can't, that significantly compromised the independence and the integrity and the judicial nature of the Court. I hope they overturn Roe, and I've got some real sense of optimism that they're going to.
- [07:57]
Michael Knowles
Senator, before we get into it, I tell you, I know that you're a constitutional scholar, you've argued before the court, you're a senator. Me, you know, I'm just some guy. I've listened to the oral arguments, read the history, but I am reliably informed we are not allowed to have an opinion on this matter, because this is a woman's issue and all women love abortion and all women totally love Roe v. Wade. So Liz, since you are the only woman that we have for miles around here, is that that's all true. We gotta uphold Roe. Abortion's great, and we men need to shut up.
- [08:27]
Liz Wheeler
Well, I can reliably inform you as a woman, Michael, that that is fake news, that all women do not like Roe v. Wade, do not need abortion to succeed. But you actually bring up an interesting point, because listening to these arguments in front of the Supreme Court, I was frankly surprised at how weak the arguments from the pro abortion side was. They essentially focus on two things. They focus on the very unscientific argument, I guess if you even want to call it an argument, that this was about a woman's body, instead of differentiating that of course the unborn child is a separate body, that there are competing interests between that child and that mother. But also, and Senator, maybe you can speak to this a little bit. They kept categorizing Roe as being this super precedent that because it is quote, unquote settled law, that it simply cannot be overturned. This is not true in the history of our nation.
- [09:19]
Ted Cruz
Well, it's not. And the Supreme Court has overturned a lot of precedents over the 200 plus years of our nation's history. The justice that leaned in the hardest on saying that was Justice Breyer. And listen, he was trying to find a way to save Roe. And his argument, his argument really, really stemmed from the decision in Casey. So a little bit of the history. Roe was 1973. It struck down essentially all the laws across the country that banned abortion. It was a 7:2 decision. It was written by Harry Blackmun, who had been an appointee of Richard Nixon and a Republican appointee. And Blackmun had previously been general counsel of the Mayo Clinic. And Blackmun was not a distinguished jurist. He was one of the least distinguished members to ever serve on the court. And the Roe vs. Wade opinion is a terrible opinion. It doesn't derive from the Constitution, it barely purports to. And Roe vs. Wade set up this trimester formula. In the first trimester, the state had almost no leeway regulating abortion. In the second trimester, they had more, and in the third, they had significantly more. Anymore, that doesn't come from the Constitution. It doesn't come from the Bill of Rights, but it was invented in Roe versus Wade. Fast forward to 1992, 1992, you've had 12 years of Reagan, Bush, you've had Multiple Republican justices appointed to the court. You had Sandra Day O'Connor appointed to the court. You had Justice Scalia appointed to the court. You had Anthony Kennedy appointed to the court. You had David Souter appointed to the court. And in 1992, the decision that everyone thought was going to overturn Roe versus Wade was a decision called Casey. And at the time, it's a little bit like where we are now. It's part of why conservatives are wary. Even though the argument seems good, the argument seemed good in Casey. Casey concerned. The state of Pennsylvania had a whole series of laws they passed that were some fairly modest restrictions on abortion. So, for example, Pennsylvania required parental consent for a minor to get an abortion. Pennsylvania required informed consent before a woman could get abortion. Pennsylvania required a 24 hour waiting period. Pennsylvania also required spousal notification. And when the case went up there, almost every observer said, Roe vs Wade's going to be overturned. Well, what happened? It wasn't overturned. Casey reaffirmed Roe and it upheld most of the different Pennsylvania laws. So it upheld the parental consent aspect. It upheld informed consent, it upheld the 24 hour waiting period, but it struck down spousal notification. And in Casey, you had three justices, O'Connor, Kennedy, and Souter, who wrote this joint opinion, which is very strange. Normally an opinion is signed by one justice. None of them signed it. They wrote it together as a joint opinion because they were, I think, really trying to hide from accountability for what they were saying. And they threw out Roe's trimester system and they replaced it with a new standard called undue burden. And we'll talk about that more in a minute. But Casey talked a lot about how Roe was a super precedent, that it had a high threshold to be overturned. And so Justice Breyer kept repeating the portions of the Casey opinion saying Roe was a super precedent because he's trying very hard to preserve it. I'm not sure his arguments were very persuasive to his colleagues, though.
- [13:22]
Liz Wheeler
We actually have a lot of great questions about this case, specifically from our verdict plus subscribers. People are very interested in the nitty gritty, the legality of this, not just the cultural aspect of abortion. Before we get to that, we've compiled a bunch of video clips, or not video clips, audio clips from the Supreme Court oral arguments to address some of these questions. So I want to toss this to Michael.
- [13:44]
Michael Knowles
Great. All right, Liz, we'll get back to you a little bit with the mailbag. And Senator, what you've laid out here has actually, it's made me even more confused. It's not your fault. It's just the history of the way these decisions have gone on at the court. So we've got Roe, we've got Doe, which is different than Roe, I take it. And then later on we've got Casey. And all of this affirms some right to an abortion, but the justification for the right to an abortion kind of changes, I guess. Actually, Justice Thomas now in the Dobbs questioning, gets to the heart of this question. He says, what right is this really about? Take a listen.
- [14:27]
Justice Clarence Thomas
What constitutional right protects the right to abortion? Is it privacy? Is it autonomy?
- [14:36]
Ted Cruz
What would it be?
- [14:38]
Liz Wheeler
It's liberty, your honor.
- [14:39]
Ted Cruz
It's the textual protection in the 14th Amendment that a state can't deprive a person of liberty without due process of law. And the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre viability pregnancy.
- [14:56]
Michael Knowles
So simple question from Justice Thomas. What right are we talking about? If I talk about the right to have a gun, I can point to the second amendment and say, there's my right to have a gun. What is the. The right is abortion. And she says, no, it's Liberty in the 14th Amendment. Maybe applied differently depending on the case you're talking about. So what? Senator, please help me. What is she talking about?
- [15:17]
Ted Cruz
So let me say at the outset that I love Justice Thomas voice the deep gravelly voice, and I'll tell you, I've been blessed. I know Justice Thomas fairly well and spend time with him. When he laughs, it is like Santa Claus. It is the most unbelievably deep. That is just spectacular. And he is a true American hero. The reason he asked that question is because if you look at the Constitution, if you look at the Bill of Rights and you go look for the word abortion, you don't see it. If you look for pregnancy, you don't see it. If you look for any authority for restricting and preventing states from protecting unborn life, you don't see it. And there's a reason for that, which is that many of the states did so that it had been the case for 150 years of our nation's history that the states had the authority to prohibit abortion. You know, the Hippocratic oath, you know, the oath that doctors take, every doctor takes, says, I will not help a woman procure abortion. So there had been centuries of legal precedent that the states had the authority to do this. So how did we get to Roe? Well, to understand how we get to Roe, you have to get to it is you have to start with a decision called Griswold vs. Connecticut, which was one of the precursors to Roe. And it was a manufactured case. It actually came out of Yale Law School, your alma mater, teed up Griswold versus Connecticut. And it was a woman who went to purchase contraceptives was denied the ability to purchase contraceptives pursuant to a state law that was rarely, if ever, enforced. But they went and found someone to enforce it so that they could tee up this test case. The Supreme Court in Griswold versus Connecticut struck down the prohibition on contraceptives. Look, I think a prohibition on contraceptives is incredibly stupid. It is very bad policy. I don't know any rational person in this country who believes contraceptives should be illegal.
- [17:37]
Michael Knowles
Well, we'll get into it. I'm sorry. We'll get into it later, Senator. No, let's go on.
- [17:41]
Ted Cruz
Even Michael Knowles, I don't think believes.
- [17:43]
Michael Knowles
That depends on what year, you ask me, you know, as a young man.
- [17:48]
Ted Cruz
Yes, but Griswold, actually, the reasoning it said, and this is where the Court got a little metaphysical. It said it was the first major decision that created what's called the right to privacy. And Justice Thomas in that clip refers to the right to privacy. And the word privacy doesn't appear in the Constitution either. But what the Court said is the Court said, well, the protections in the Bill of Rights have emanations. Basically, they glow. And those emanations cast penumbras. A penumbra is a fancy word for a shadow. And within the penumbras from the emanations, we find the right to privacy. Okay, all right, fast forward to Roe. Within that right to privacy, Justice Blackmun wrote the right that came from a penumbra, from an emanation that, mind you, that rights in the Bill of Rights are casting is where the right to an abortion came from. It's one of the reasons why Roe vs Wade, even when it came down, was almost universally ridiculed as just almost incoherent, just bad legal writing not tied to the Constitution. Even liberals. You know, Ruth Bader Ginsburg was actually quite critical of the reasoning in Roe vs Wade. She agreed with the outcome. The reason Justice Thomas asked that is in Roe, Harry Blackmun says it comes from the right to privacy. That's coming from the numbers of emanations. Subsequent liberals have defended it as an autonomy interest and a liberty interest. So these are all different ideas that have been cast forth because abortion is not in the Constitution. They're trying to Find another way to find it in there. And so, look, is there a liberty interest protected in the Fifth Amendment and 14th Amendment? Absolutely, but they also protect life and liberty. You're free to do what you wish, but that restriction always has limitations when it impacts the rights of another. And so I think it is a too cute by half argument to say it is within the liberty interest. But that, I would say is the more modern liberal argument for the right to abortion is to the extent they're trying to ground it anywhere they try to ground it within a liberty interest. Although autonomy was the basis that Justice Kennedy found for striking down Texas law criminalizing homosexual sodomy. And he talked about the right to autonomy. And in fact, there's a passage that Justice Scalia ridicules as the sweet mystery of the universe, where he says, I can't quote it exactly, but for each of us, the process of defining ourselves, our existence and the sweet mystery of the universe is at the core of humanity. It's this, like, poetic gibberish.
- [21:14]
Michael Knowles
That's right. The right to define our own concept of existence. And which, if that is the case, I do define myself as a professional major league baseball player. That is my right, Senator. And please, I would appreciate it if you would address me as such.
- [21:30]
Ted Cruz
Well, and Michael, baseball been very, very good to me. And that's from a Saturday Night Live before, probably before you were born, when.
- [21:41]
Michael Knowles
I was just a glint in my father's eye. That's true, but about as coherent, by the way, as Justice Kennedy's argument. And so the case you were just citing is Lawrence v. Texas, which strikes down laws against homosexual activity.
- [21:56]
Ted Cruz
And by the way, to be clear, I think laws against homosexual activity are every bit as asinine as laws against contraceptives. I would emphatically vote against those laws. As a state legislator, as a member of the Senate, I don't think government has any business regulating, in that instance, the conduct of consenting adults. I think you ought to be able to do what you wish. But the reason Justice Thomas asked that question is there's sort of three different buckets from which different people have sought to try to derive a right to abortion.
- [22:35]
Michael Knowles
Well, and to your point on Lawrence v. Texas, Senator Scalia made this point. He said, there are plenty of things that are bad. There are plenty of things that I don't like, plenty of things that I do like and that are good, that are just simply not in the Constitution. He said, there can be things that are SBC stupid, but constitutional. And so, as you're describing this right to an abortion would appear to be a conclusion in search of an argument, a conclusion in search of evidence. And the evidence keeps changing and the arguments keep contradicting each other sometimes, but they come down and they say there's a right to an abortion and they reaffirm it. So then the question is, and this was a question that the judges, the Justices are dealing with, is what about stare decisis? What about precedent? Let's say you've got a really bad decision. Well, what if it's been on the books for 50 years? Doesn't it have to remain there? Justice Kavanaugh listed a number of landmark cases in the Court's history that were not exactly settled law.
- [23:33]
Justice Clarence Thomas
Take a listen, and history helps. Think about stare decisis as I've looked at it, and the history of how the courts applied stare decisis. And when you really dig into it, history tells a somewhat different story, I think, than is sometimes assumed. Think about some of the most important cases, the most consequential cases in this Court's history. There's a string of them where the case has overruled precedent. Brown v. Board outlawed separate but equal Baker versus Carr, which set the stage for one person, one vote. West Coast Hotel, which recognized the state's authority to regulate business. Miranda versus Arizona, which required police to give warnings about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas said that the state may not prohibit same sex conduct. Knapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon vs. Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same sex marriage in each of those cases. And that's a list. And I could go on. And those are some of the most consequential and important in the Court's history. The Court overruled precedent, and it turns out if the Court in those cases had listened and they were presented with arguments in those cases. Adhere to precedent in Brown v. Board, adhere to Plessy and West Coast Hotel, adhere to Atkins and adhere to Lochner. And if the Court had done that and those cases, the country would be a much different place.
- [25:33]
Michael Knowles
So Justice Kavanaugh is asking, okay, you don't have much of a legal or constitutional argument for abortion. You're staking a lot of your argument on starry decisis, on the idea that precedent, even a badly decided case, should carry some weight. Well, what about all these Other cases that overruled. And so which is it? Are we going to celebrate cases that overrule bad precedents, or are we going to just deal with precedents even if they were egregiously decided?
- [26:03]
Ted Cruz
Well, that question that you just played from Justice Kavanaugh is probably the single most encouraging thing that happened. At the oral argument, I wrote at length in my book, One Vote Away, that I was quite concerned about Justice Kavanaugh and how he would rule on a challenge to Roe. And I was quite concerned about Justice Gorsuch as well, but especially Kavanaugh. And basically, let me step back for a second. What played out at the oral argument as I listened to it and read through the transcript, was I think there are six votes to uphold the state law, the ban on abortions after 15 weeks. All but the three liberals are going to vote, I believe, to uphold the law. Chief Justice Roberts, I believe, does not want to overrule Roe. And at the argument, he was spending much of his time casting about for a way, can the court do something smaller, Uphold the state law, but not overrule Roe versus Wade? And so he's trying to find, you've got three votes on one side. Roberts just needs one. He needs to get Kavanaugh or Gorsuch or Barrett. So Roberts is hunting for one additional vote. If Roberts gets one additional vote, Roe won't be overturned. And so the entire argument, and John Roberts, as you know, is someone I know very, very well. He, like me, clerk for Chief Justice Rehnquist. He was an extraordinarily talented Supreme Court argument advocate. And so he's casting about for, essentially, don't we we can just uphold this law and we don't have to go so far as overturning Roe. That question from Kavanaugh is really encouraging because he's going through big landmark decisions of the Supreme Court. Most of those decisions I talk about in the book One Vote Away, I go into the history of a lot of those different decisions and how they overturned precedent. The biggest one, Brown vs. Board of Education. Brown vs. Board of Education, decided in 1954, struck down segregated public schools, and it overturned a decision called Plessy vs Ferguson. In Plessy, it's one of the most disgraceful decisions in the history of the Supreme Court. The Court upheld something called separate but equal. It concluded that even though the Constitution gives everyone equal protection of the laws, that it was consistent with the Constitution for the government to say one school for black children, one school for white.
- [28:46]
Michael Knowles
Children, one water fountain, another. Yes, right.
- [28:49]
Ted Cruz
And Brown Overturned Plessy. It was absolutely the right thing to do. Plessy was an abomination. You know, Justice Kavanaugh began with Brown and went through a whole litany of big major cases that we're overturning precedents. And the reason that's encouraging, as you listen to that question, it suggests pretty strongly that Justice Kavanaugh is open to and leaning towards overturning Roe. That's a big, big deal. Particularly because the questioning from Gorsuch and Barrett was encouraging as well. So if I were counting noses right now, we may well get to 5 on getting the court out of the business of legislating on questions of abortion, and we may well send that back to the states instead, which is where it has always belonged under the Constitution.
- [29:43]
Michael Knowles
Well, that is what I wanna get into, beyond the legal arguments, which I think you have done as good a job as anybody possibly can to helping me to understand what the pro abortion side is arguing here. And it's not very coherent. And, and even many people who support abortion have agreed that the way these cases were decided doesn't make any sense. And the legal logic is not really there. But now we're talking about people, we're talking about votes. Who actually is gonna have the guts to do this? Thomas, he's Gonna overrule Roe 100%. Alito, he's gonna overrule Roe. Almost certainly.
- [30:18]
Ted Cruz
Yeah.
- [30:18]
Michael Knowles
You've got the three liberals. They're certainly not. Then you've got maybe a fourth liberal, Chief Justice John Roberts, who probably, as you think, does not want to overrule Roe. Kavanaugh, you like his arguments. So you're also saying then that Barrett and Gorsuch, you liked what they were asking. You felt that the way they were approaching the oral arguments showed that they were leaning toward overruling.
- [30:40]
Ted Cruz
I did. Their questioning was quite good. One of the things that they emphasize is the point I made, that if Roe is overturned, it doesn't immediately ban abortion nationwide. It instead leaves it to the states. And by the way, there are a bunch of blue states in which abortions will still be widely available. You know, New York, California. Nobody thinks the state legislatures in those states are gonna suddenly wake up tomorrow and ban or even significantly restrict abortion. You and I would hope and pray that they would, but as a political reality, that's not happening. Even without Roe versus Wade on the books. What we would see instead is each state adopting different standards and there would be a variety of them. And, you know, Justice Gorsuch, one of the reasons I was very encouraged Gorsuch. Gorsuch, a very smart lawyer. And he pressed the lawyers on, okay, so to uphold the state law, Roe had a standard, it made up of viability that basically said, before the unborn child is viable, can live outside the womb. Before the unborn child is viable, the state can do very, very little to protect the life of the unborn child. After viability, the state can do more. Okay, Justice Blackmun made that up. And in fact, there's an interesting exchange where Chief Justice Roberts notes that in the Blackmun papers. So this is after he retired as a justice, he released his papers, his notes on writing Roe versus Wade. And he admits in his notes that viability was just a concept he made up from when he worked at the Mayo Clinic and had nothing to do with the Constitution. It just, he pulled it out of his rear end and invented it. And it's a funny little exchange because Roberts is like, well, this is sort of an odd source, the Blackmun papers, but I guess they're there. And he admits it's made up and, and what Roberts is pushing for. So he's to uphold the state statute. Here you have to reject viability because viability is 24 to 26 weeks, not 15 weeks. And right now, scientifically, a 15 week unborn child can't live outside the mother's womb.
- [33:02]
Michael Knowles
And there's another issue, which is that viability does move. Yes, it moves with scientific advancements. So whereas a baby previously could not survive before 24 weeks, now babies can survive at 21 or even 20 weeks. And the argument that's being made for the Mississippi law is that the baby cannot survive at 15 weeks. But he looks like a baby. The baby's got all his little baby parts. He's got his little fingers and his little toes. He seems to have all the features of what we would call a baby. But because he doesn't meet that standard, you have to, you have to change the standard. The standard that you observe was just pulled out of thin air.
- [33:39]
Ted Cruz
Roe vs. Wade established the trimester system, which Justice Blackmun made up in Casey, the joint opinion, the opinion that was written by Kennedy and O'Connor and Souter throughout the trimester system, said, it's made up, it's no longer the law. And so it actually overruled part of Roe, it reaffirmed Roe, but it threw out part of Roe, and it invented a brand new test. And the brand new test was that states can have restrictions on abortions, but they cannot have an undue burden on the right to abortion. So they can apparently have a due burden, but not an undue burden. An undue burden is not a term found anywhere in the Constitution. It's not a term that means anything in law. It. It's just something they made up. No undue burdens, which puts the court due burdens. Fine. In the business of measuring how much of a burden is due. So Roberts was basically arguing at the oral argument. Well, viability was an arbitrary made up line. Even the Blackmun papers tell us that. So if we jettison viability, we can uphold the Mississippi law, right? Yes. So we don't have to overturn Roe or Casey, because if we jettison viability, we can simply say, this is fine. Gorsuch was pressing hard on the defenders of abortion, saying, okay, if viability is not the line, how do we draw a line? How do we draw a workable line? This is a 15 week prohibition. How about 12 weeks? How about 10? How about 9? Like, how do we draw. And what was interesting is the defenders of abortion, the Biden administration said, yeah, it's basically unworkable. We can't draw those lines. There's no ways. Courts are just making it up to draw those lines. And what's fascinating about that, look, Gorsuch is pushing on that because if they admit there's no workable legal standard, that is one of the major factors under stare decisis. Stare decisis is the Latin word for respecting precedent. That's one of the major factors for overturning a precedent. So when Gorsuch is asking, without viability, is the legal rule unworkable? What he's saying is, and therefore, shouldn't we overturn Roe vs Wade? In other words, is there not a middle ground? Don't we have to go all the way? And Gorsuch was pretty aggressive on that, and Barrett was pretty good on that. And so that combination led me. I was quite skeptical going into arguments that there were five votes to overturn Roe. I'm pretty hopeful right now.
- [36:41]
Michael Knowles
So before we get to Mailbag, as always, we're running late. I have to touch on what I think was the most persuasive argument made on the pro abortion side. It was not made by one of the lawyers. It was made by one of the judges, Sonia Sotomayor, who said, if you overrule Roe versus Wade, how will we ever get the stench of politicization out of the court? Take a listen.
- [37:08]
Ted Cruz
Will this institution survive the stench that.
- [37:13]
Justice Clarence Thomas
This creates in the public perception that the Constitution and its reading are just political acts?
- [37:26]
Michael Knowles
Senator, how are you going to get the stench out of the court?
- [37:28]
Ted Cruz
Well, you know, they're the ones that put the stench there. It was. And Roe played a big part in putting the stench there. Ever since that day, the court has been deeply political, and it is why. And I gotta say, you listen to the argument. Justice Sotomayor was relentless defending Roe, defending Casey. She was fighting. To be honest, she was a better advocate than either of the two lawyers standing at the podium arguing for abortion. Sotomayor was relentless. Now, you also saw Breyer. Breyer does it more as a law professor, more in the abstract. And you saw Kagan. Kagan is the best litigator of the three liberals. And so she was trying to find ways to push. And she recognizes, I think Kagan recognizes this law is going to be upheld. But I think Kagan is quite interested in who can we pick off? Kavanaugh, Gorsuch, Barrett, to join with Roberts and don't overturn Roe. And so Kagan was very focused on that. And that's the question, do one of the three go for the middle ground or not? Sotomayor gave a speech that, frankly, is not all that different in her questions from what would be given by Elizabeth Warren or Mazie Hirono in the Senate. It was a political speech because with Roe, the Court jumped emphatically into the political sphere rather than the legal and judicial sphere, which is one of the biggest reasons why I think the Court should return it to the political sphere and let the people decide. And by the way, one of the reasons abortion is so contentious, so angry, is because there's no outlet. Listen, we disagree. And abortion is a personal. It is an emotional. The feelings on both sides are genuine. They're not making it up. Both sides really, really believe it. Normally, in the democratic process, there's a safety valve to work that out because you can argue back and forth and you can try to persuade each other, and sometimes you can reach middle grounds, and all of that makes our democracy work. But when you have nine unelected judges say, I don't give a damn what you think about it. I'm smarter than you are, and we know better, and we're gonna take it away from you, it produces the kind of intense division that we've seen. And based on this oral argument, I think we have a real chance of seeing the end of an era that was, as you put it, a grievous error.
- [40:18]
Michael Knowles
Well, in the spirit of hearing from the people and making their voices heard, we should get to the mailbag. So let's Bring our friend Liz back. Liz, what do you have for us?
- [40:27]
Liz Wheeler
Well, a lot of people, a lot of our subscribers, a lot of our friends on Verdict asked about this case specifically. I think they're gonna be just enthralled to listen to this legal breakdown. If you aren't already a subscriber on Verdict, join us. It's verdictwithtedcruise.com if you're not already a part of the community, now's the time to jump on it. We've extended our sale into the new year. Between now and January 15th, you can become a Verdict plus subscriber for just $56 for an annual subscription. That's $56. This is the cheapest price you'll ever see. So now is the time to do this. Go to verdict with TedCruz.com/ so, Senator, the first question I want to ask is from someone whose username is twin sister. She says, why hasn't anyone on the pro life side argued a fetus is a person and therefore entitled to due process as the Fifth and 14th Amendments mandate, before depriving him of life, shouldn't the unborn child be given the equal protection under the law?
- [41:27]
Ted Cruz
So look, that is a very good question, and it is a question that is debated in legal circles. You are right that The Constitution, the Fifth and 14th Amendments both protect the rights to life, liberty and property, that you can't be deprived of any of the three without due process of law. There's another decision of the Supreme Court called Carolene Products. And in Caroling Products, Footnote 4 and lawyers are weird because Footnote 4 of Caroline Products is actually a thing that lawyers refer to. It describes that the protections of the Due Process Clause and of equal protection are more significant for what? Discrete and insular minorities. So that's the phrase in footnote four of Caroling products. Discrete and insular minorities mean minorities that are readily identifiable, that are insular. In other words, they're weaker and can't protect themselves. And what Carolyn Products said is, look, they can't use the democratic process to protect themselves because they're discrete and insular minorities. And so the constitutional protections are more robust concerning them. And there have been legal scholars who have pointed out it is difficult to imagine a more discreet and insular minority than an unborn child who by definition cannot protect herself or himself in the political process. You know, Reagan famously quipped, you know, I notice all the people in favor of abortion have already been born and the unborn children are not given a voice in this. That is Certainly a legal argument one can make. It is not an argument the Court has ever gone so far as to embrace or suggest. And look, the consequence of that argument would be a Supreme Court decision protecting the right to life across the country. There are none of the nine justices on the Court who have suggested they would go that far. Each of them has said the Constitution is silent on this and so it is left to the states and to Congress to regulate it.
- [43:34]
Liz Wheeler
And by the way, even the pro life lawyers did not make this argument. They actually specifically stayed away from this argument, perhaps to try to appeal to some of those justices who are on the fence. Michael, the next question is less of a legal question and more of a cultural legal hybrid question. So I want to focus on you for this one. It's from John Bennett. He says during the supreme court case Dobbs vs Jackson, the leading pro abortion argument was the negative economic impact childbearing or child rearing is on women or has on women, which poses the question that doesn't it also have an economic impact on fathers? If fathers don't have a say, then why are they responsible for child support? If they are responsible for child support, shouldn't they also have a say in the termination of their child's life and given the option to keep the child and release the mother of her responsibility?
- [44:21]
Michael Knowles
Well, I think certainly a father should have the say in whether or not a child will live or die and be killed through some obscene pseudo medical process. But I don't think that we need to make an economic argument. I think the observation is really quite good that the pro abortion side is now nakedly making a money argument. They're saying, well, look, you might decide to keep your kid or give up your kid, but if you keep your kid, it's going to cost you money. And if you give up your kid, you can sacrifice him to the idol of lucre and mammon. This is nothing new. I'm glad you phrased it as a cultural question. This is nothing new. We've seen this in cultures from the beginning of the world. But it's wrong. It is wrong to view your kid as a money bag or an economic drag or even an economic benefit. Your kid is your kid. Your kid is made in the image of God and to some degree in your image and is worth more than dollars and cents. And this is a big problem. So it's a clever argument to try to make some economic argument on the right, but I just think it's completely missing the point. It is simply wrong. And there's no amount of mammon or lucre that could convince me or I think any reasonable person otherwise.
- [45:36]
Ted Cruz
Well, and Michael, let me jump in on this also because this was a point that Justice Barrett engaged in where she pointed out that now states all across the country have enacted so called safe haven laws where if a mother gives birth to a child and that mother does not feel she can care for that child, that you can go and hand over the child and the child will be cared for. And so it's just a protection in law if for whatever reason, whether economically, if the mother is destitute and can't afford to provide for the child or for whatever reason, there is an option to hand over the child to be cared for another. And so Justice Barrett asked about that and said, look, doesn't one of the arguments that was used by the majority in Roe and used by the majority in Casey was this economic argument that it could be a financial burden on a mother who is not in a doesn't want to have a child at that point. And Justice Barrett said, well look, hasn't this changed now that at least the economic consequence, if you don't want to bear it, the states have enacted laws to enable an alternative that protects the child's life without imposing a financial burden on you. And she also pointed out in the second line of questioning adoption, which is obviously another avenue of that and adoption I think it was her questions point out that it was mentioned only in like brief passing in Roe, but not really considered at any level that with adoption that is another avenue, that if you have a mother who does not believe she is in position to raise the child, that she has an option that can still preserve the life of the child.
- [47:22]
Michael Knowles
And this is such a great point, Senator, and it's one that very few people seem to understand the reality of, because what the pro abortion side will say is that there are so many orphanages and the foster system teeming with children who are not being adopted and therefore adoption's not a viable alternative. But it's really hiding the ball. It's really misrepresenting what's going on. It's true, it's very difficult for older children to be adopted and there are lots of problems in the foster care system. And of course one could speak for hours about that sort of thing. But when we're talking about babies who are being put up for adoption as newborn babies, there are an estimated 36 couples for every newborn baby in the United States who is put up for adoption, 36 couples who want to adopt that baby. So there is absolutely no shortage of demand, to put it in economic terms. There's no shortage of loving homes. If a woman feels I am not at a place in my life where I can care for this baby, there are so many avenues, adoption and as you say, laws that will enact these safe havens. So the economic argument just does not carry water.
- [48:27]
Liz Wheeler
There's also some kind of glorious poetic justice, I think, in justice Amy Barrett or Amy Coney Barrett sitting up there, the mother of seven children. This woman who is just so distinguished her career, she has achieved the pinnacle of what you can achieve when you are a lawyer, the way that she is. And her children have empowered her, not held her back. So there's some kind of, like I said, poetic justice in that. On that note, anybody who wants to submit a question for next week's episode of Verdict, you can do so@verdictwithtedcruise.com plus Become a subscriber on Verdict plus and you'll have behind the scenes access to Senator Ted Cruz to ask questions that we will answer right here on the show.
- [49:05]
Michael Knowles
So often we're talking about how everything is just going to hell in a hand basket and you know, the news is all terrible, but this is really, you have convinced me, Senator, that there really is a concrete reason to hope here specifically when it comes to this case, to the end of a grievous error. But we'll have to hold it there. Thank you, Senator. I'm Michael Knowles. This is Verdict with Ted Cruz.
- [49:34]
Liz Wheeler
By the way, don't forget our tremendous giveaway in honor of the two year anniversary of Verdict. If we reach 15,000 members on Verdict plus by January 21st. January 21st being, of course, the anniversary, the inaugural episode of Verdict with Ted Cruz. And we will bring one Verdict plus member to a live taping of Verdict. Now. You don't have to pay anything. This is an unpaid. All you have to do is join the Verdict plus community at verdict with Ted Cruz.com+. If we reach 15,000 members by January 21st, maybe you will be invited to a live taping of verdict. Also on YouTube, we will be selecting 15 random people who leave comments on episode 100. That's episode 100 on YouTube. 15 random people. We will be selecting to get a box of Verdict merch from the Verdict merch store. We're talking about sweet cactus hats, we're talking about T shirts, we're talking about stickers, really cool stuff. You could be one of the 15 lucky people. Head on over to our YouTube channel and leave comments. 15 of you are going to get a box of Verdict merch. And perhaps the most fun this isn't exactly a giveaway, but it's even better if we get to 50,000 reviews on Apple Podcasts. That means that you go over, you subscribe to the show Verdict with Ted Cruz, you leave us a five star rating, you give us a glowing, obviously great review over there. If we get to 50,000 reviews, then we're going to do a poll to see exactly what Michael and Senator Cruz are going to do in 2022. These are the options. And by the way, shout out to Real Truth Cactus for this idea. These are the options. Either the Senator wears a Braves jersey for a whole episode. That's option number one. Option number two, Michael and the Senator arm wrestle. I'm very biased, but this one's my favorite. Option number three, the cactus makes a guest appearance on our show. Or option number four, Michael roasts Princeton and the Senator roasts Yale in a Throwdown episode. 50,000 reviews on Apple Podcasts. And this. You will be in control of one of the episodes in 2022. Head on over to Apple. Subscribe, give us a great review and those are our giveaways for the two year anniversary of Verdict with Ted Cruz.
- [51:38]
Ted Cruz
This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security pac, a political action committee dedicated to supporting conservative causes, organizations and candidates across the country. In 2022, jobs, freedom and Security PAC plans to donate to conservative candidates running for Congress and help the Republican Party across.