Evan Bernick on the Dobbs Draft
2022-05-09 · Guest: Evan Bernick (Professor at Northern Illinois University) · 50:58
Leaked Dobbs Draft and Abortion Rights
Bob Zadek and Professor Evan Bernick discuss the leaked Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization. They explore the legal history of abortion rights, the distinction between enumerated and unenumerated rights, and how the court’s shift toward the Glucksberg framework impacts the future of substantive due process and state-level legislation.
Topics: Dobbs v. Jackson, Roe v. Wade, Casey v. Planned Parenthood, 14th Amendment, Originalism, Unenumerated Rights, Substantive Due Process, Glucksberg Framework, Right to Privacy, Federalism
Speakers: Bob Zadek, Evan Bernick
The Leaked Dobbs Draft [00:00]
(Intro music)
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running libertarian radio show in all of radio—15 years give or take and counting. Thank you so much for listening this morning. We are this morning, and always, the show of ideas, never once the show of attitude.
Wow, has one story just in the past week crowded out what seems to be so much other news. The story is the leaking, the leaking of a draft opinion by Supreme Court Justice Alito in a case known as the Dobbs case. It was an 86-page draft opinion, scholarly, carefully written, and as far as the media is concerned, the Dobbs decision—remember it’s only a first draft, nobody much quite questions its authenticity, it’s not a forgery, it is a first draft written several months ago—but many people would have you believe the Dobbs draft decision, if it becomes the final decision and if it achieves a majority vote in the Supreme Court, to the ears and heads and minds of most Americans, it will more or less take away one’s right to an abortion.
And I can’t think of a more emotionally charged issue where people have their most strongly felt moral beliefs, conclusions about right and wrong, and when a decision threatens core moral beliefs, it brings out in many people the worst of them individually and in society as a whole. It is my goal this morning to try to help all of us understand what the Dobbs decision might say in its final form, assuming for the minute, just for the minute, that the draft decision does become the majority decision—that’s not clear at all—and if it becomes the majority decision more or less as it appears in the draft that has been leaked to the public through Politico.
This discussion has two levels, and I will remind myself and all of us during the discussion that we are having two conversations sometimes almost simultaneously. We will be discussing what the Constitution says to us about abortion. More specifically, what it requires the federal government and the state governments to do and not to do with respect to the specific activity of abortion. So we will be discussing what guidance, if any, the Constitution gives us. And we will be applying that, assuming the Constitution has little guidance about abortion, the decision will be left to the states. What will the world of abortion be like when states are free, as they were for about 185 years, to treat the issue of abortion as a pure political decision to be governed by statutes on a state-by-state basis?
Introducing Evan Bernick [02:31]
To help us understand this really tough and, if you enjoy thinking through these issues, this is intellectually so interesting, and if you can shed your emotions for the minute and let your brain take charge and win the battle between the mind and the heart, you will find this to be an interesting, enlightening, informed discussion where you will be able to participate in a conversation with your friends on a very calm, interesting basis and not end up hating each other.
To help us get through this, I’m delighted to welcome back to the show Evan Bernick. Evan is a law professor at Northern Illinois University College of Law. He is an expert on originalism, and Evan, we will explain originalism to our audience so that they can follow along the discussion. He has written, with Randy Barnett, a very interesting and very important book recently written entitled The Meaning of the 14th Amendment. The 14th Amendment, as you all know, was one of the so-called Civil War amendments. It has been the subject of much discussion and much confusion. It is a scholarly and important work. Evan has been visiting with us earlier, and we are delighted to welcome Evan back to the show to help us sort out what exactly is the furor over the Dobbs decision all about and what might a post-Dobbs decision mean to all of us. Evan, thank you so much for coming back to the show this morning.
Evan Bernick: Thanks so much for inviting me here, Bob. It’s a pleasure to speak with you again.
Roe, Casey, and the Dobbs Draft [04:01]
Bob Zadek: Now Evan, we start with the Dobbs decision, which as I said earlier was leaked—a very unusual event in and of itself. We’re not going to be discussing who might have leaked it and why; that could consume an hour, an unsatisfactory hour, as we try to understand what might have been the political motivation of the leaker and who might have been the leaker. We’re not going to do that this morning. I’ll leave that to others. I don’t find that to be the interesting part of this discussion or the important part. But we are all talking about the Dobbs decision. Tell us what issue the Dobbs decision attempts to deal with and in its draft form—remember friends, it’s a draft decision written several months ago, we do not know what it’ll look like in its final form—but we do know what the original draft says. So what is the Dobbs decision focusing on and what did it say?
Evan Bernick: Roe v. Wade and Planned Parenthood v. Casey held that the 14th Amendment, which you just mentioned, protects a woman’s right to choose to terminate a pregnancy as a matter of constitutional law. Casey specified that states could not ban abortion outright during the period before a fetus is viable outside the womb. So state bans pre-viability: categorically unconstitutional. Dobbs, the draft opinion, holds that Roe and Casey were wrong when they were decided, they’re inconsistent with the Constitution, with the meaning of the 14th Amendment, and it overrules them. Dobbs, the draft opinion, holds that Casey and Roe were wrong when they were decided and it returns the issue of whether or not to ban abortion to the states, which means in practice there are going to be a significant number of states that permit abortion and a significant number of states that ban it outright.
Bob Zadek: So that means that if Dobbs’ final decision looks anything like the draft decision, the one thing that is most clear: that decision, the Dobbs decision, does not ban abortion. So Dobbs, the Dobbs decision as to whether abortion is—can be criminalized or not, Dobbs simply says, and Evan, please help me or correct me if I’m misleading or misstating the listeners, Dobbs just says to the political process: you decide whether abortion is criminalized, prohibited, or allowed. You decide. And the Constitution is benign; it has no stated constitutional opinion—a phrase I just invented—it has no constitutional opinion on that process. In other words, the American public is free through the political process to decide that issue, as it does almost every issue, with the Constitution having something to say about it only if the state action through the political process impairs rights protected by the Constitution. Have I stated it properly or have I misled our listeners?
Evan Bernick: That’s very good, Bob. I would just add two additional things. One is that there are a number of states that have in effect already decided to ban abortion as soon as Roe and Casey have been overruled. These are trigger laws that apply upon the contingency of Roe and Casey being overruled. So while it’s true that there are some states that are going to start from like a point of political deliberation about what they should do next, there are a number of states that are going to be locked in, and then it then becomes the question of whether they want to undo what they have done in anticipation of Roe and Casey being overruled.
The second point is that it is theoretically possible that Congress could pass a piece of legislation that’s designed to protect the right to an abortion. This would not be a constitutional right; Congress would have to rely upon its power probably under the Commerce Clause on the theory that abortion is economic activity to protect that economic activity within states that are hostile to it. But as a federal constitutional matter, can you go into federal court and say, “I have a right to terminate a pregnancy”? The answer is going to be no.
Bob Zadek: So just as federal law has enacted legislation criminalizing many activities that heretofore were the province of the states—activities dealing with alcohol and with drugs and with guns—the federal government does so not because it has the power per se to enact criminal law legislation, but it has to have a hook. And the hook—and we can have ten shows on the Commerce Clause and roll our eyes—but that’s for another day. But let’s start with the premise: given Commerce Clause jurisprudence, the issue of “can they do it?” Yes, they can. They will find a Commerce Clause hook to be able to do that. So the question is whether they will do that. We can speculate all day, kind of who cares. We care about how this all works, not predicting what the legislative body will do; that’s not Evan’s job and my job.
Enumerated vs. Unenumerated Rights [07:01]
Now, when we discuss the issue of what the Constitution says or doesn’t say about abortion, Evan, I want to take back one step because of course the Constitution doesn’t have an article saying “rights of unborn fetuses.” There’s no such article, obviously, I’m being facetious. Just to put this in some constitutional historical context: since the Constitution is silent on abortion per se, how did the Constitution find its way to be a constitutionally protected right? I’m asking you now, Evan, to put this in a constitutional law context of enumerated, unenumerated rights, and how was the Constitution found to have any opinion, if you will, on abortion?
Evan Bernick: So long before Roe, the Court had recognized that the guarantee of liberty in the 14th Amendment’s Due Process Clause includes rights that aren’t specifically listed in the Constitution. Think the right to raise and guide the upbringing of your own children. Not specified in the Constitution. Nonetheless, the Supreme Court had held that there are certain freedoms that are associated with familial relationships and other intimate relationships, and over the course of a series of cases, held that not only do you have the right to guide the upbringing of your own children, you have the right to choose whether to have children, to contracept or not. This right was recognized on the part of married couples, then on the part of unmarried couples, and then the next step in Roe was to conclude that you have the right to choose whether to bear children once they have been conceived. So it was a gradual progression through a series of decisions recognizing a space of personal autonomy under the Due Process Clause.
And one of the questions that is now being raised and people are concerned about in the wake of this upcoming decision is what’s going to happen to these other precedents—these other due process precedents that recognized unenumerated constitutional rights. Because there are a lot of them. And the opinion itself says that besides the right to terminate a pregnancy, which is unique in that it involves potentially the life of another person, the other ones are safe. But if you apply the analysis that the Court actually does apply to determine that the right to an abortion is not protected by the Constitution, you might have certain questions about how good that promise actually is going to be if challengers to various laws raise the possibility that these other rights should also be revisited.
Bob Zadek: Now Evan, you used “unenumerated rights.” I’d like to just expand that a tiny bit because one might say, “Well, enumerated where?” So if I can, let’s put this into a context so the word “unenumerated” or “enumerated” has a context. And we are talking about, of course, we start with the Bill of Rights. The Bill of Rights, which was the first ten amendments—that is, it was not in the original Constitution, but there was an understanding by the ratification process that it would be included, and Madison made that promise and he followed through. And the Bill of Rights was enacted in 1791, I believe, in the first sitting of the first Congress.
So we all know, we all know and we can rattle off certain enumerated rights: speech, association, worship, assembly, petition the government, and we have certain negative rights: we don’t have to house soldiers in our home, searches and seizures, etc. So those are enumerated; that is, they are specifically listed in the Bill of Rights. So there’s no question where our free speech rights come from; it’s right there, it says it. However, Madison and others during the founding era were very concerned. Madison was opposed to a Bill of Rights because he would say there are countless rights and we are naming and yes, we are listing these rights—we being the first Congress—but he reminded us expressly in the 9th Amendment: “Hey, just because we didn’t list a right doesn’t mean you don’t have it.” So there was that catch-all so that nobody could ever argue that if it’s not listed in the first eight amendments of the Bill of Rights, you don’t have it.
So when Evan says “unenumerated rights” or “enumerated rights,” he is saying kind of what the founders would say is the obvious: “Well, of course you have billions of rights, too numerous to mention, that cannot be abridged by the operation of government, and so the fact that a right is not listed doesn’t mean you don’t have it.” So okay, Evan, the harder question is: how does the Supreme Court over time, from 1791 to this morning, how does it find these unenumerated rights? Do they just—does the Supreme Court just make them up as a super-legislature would and say, “Starting tomorrow, we’re giving you a new right”? So there are some—and of course, Evan, I’m going right into originalism, I’m slipping it in right now—so tell us how over time the Supreme Court, because it is the Supreme Court that locates, identifies, and therefore protects new rights that is not enumerated. So the process is of course not random. So how does a right not specifically mentioned, like of course privacy—duh, we’re talking about that—what process, what constitutional process does the Supreme Court adopt to discover a new, heretofore unenumerated right?
The Glucksberg Framework [11:01]
Evan Bernick: So the discovery of unenumerated rights is a long story with many twists and turns. At the time that Griswold and Roe were decided, the methodology for identifying unenumerated rights, if one can call it that, basically involved what a shifting coalition of justices were prepared to deem sufficiently important to liberty broadly construed to recognize and elevate to constitutional status. And then, in the next case, determine whether a claimed liberty was close enough to one that they had already recognized. So it’s a combination of moral intuitions and reasoning by analogy: is this like a right that we have already recognized?
And in part because of the dissatisfaction of justices like Chief Justice Rehnquist and the late Justice Scalia with precisely this intuition-heavy, case-by-case way of identifying rights, the Court then adopted a new framework, which is called the Glucksberg framework, after Glucksberg v. Washington, the case in which it commanded the majority—a majority of the Court decided we’re going to identify unenumerated rights this way. Glucksberg itself involved a claimed right to assisted suicide. And what the Supreme Court said about the right to assisted suicide in deciding to reject it as a constitutional claim—say the Constitution doesn’t protect this—is that it wasn’t deeply rooted in the nation’s history and tradition. They looked over the course of really centuries to determine whether the right to an assisted suicide existed at common law or existed in the law of the states today, and they concluded that it really hadn’t. And therefore, it wasn’t a constitutional right at all.
This Glucksberg framework has since Glucksberg itself become the dominant, although not the only, way that the Court identifies unenumerated rights. Sometimes it still goes back to the, you know, the intuition reasoning by analogy thing. But other times it does Glucksberg. And in Dobbs, we have Glucksberg in perhaps like its most demanding, most difficult to find a right established as a matter of history and tradition form. And the conclusion in Dobbs is that the right to terminate a pregnancy is not protected by the 14th Amendment because it doesn’t satisfy Glucksberg.
From Privacy to Liberty [13:01]
Bob Zadek: Now, Roe v. Wade was of course singular in its conclusion, but it didn’t just come spring from the earth full-grown, the way Athena sprung from Zeus’s brain. You mentioned the Griswold case, which probably—of which Roe v. Wade is progeny, it’s a result. So it’s both predicated upon the unenumerated right to privacy. And so if you—without an unenumerated right to privacy, the underpinnings of Roe v. Wade kind of disappear. So tell us about this right to privacy, because if the Supreme Court was wrong about privacy being an unenumerated right, then a lot of the justification for Roe v. Wade kind of disappears. So the right to privacy was not—didn’t appear all that much in older Supreme Court jurisprudence. So just—and I want to discuss the right to privacy only to put Roe v. Wade in a context, and then we have the context for Dobbs.
Evan Bernick: Sure. So the right to privacy does come from Griswold. This is the case that held that married couples have the right to use contraceptives. And specifically, the Court said, to much amusement on the part of law professors and really anybody who reads the opinion, that even though the right to privacy isn’t stated in the constitutional text, it emerges from penumbras and emanations of the Bill of Rights. And they form a right to privacy. Now, the metaphysics of this aside, the point is Griswold says there’s a right to privacy and includes certain rights of intimate association. And this becomes the foundation of a developing doctrine that eventually becomes associated less with privacy and more with the concept of liberty.
So by the time that we get to Casey, the Court has said, “Yes, there’s a right to privacy, but we think that the best hook for this right to terminate a pregnancy is in fact the right to liberty guaranteed by due process.” And the fruits of this liberty jurisprudence have since come to include the right of same-sex couples to be sexually intimate—this is Lawrence v. Texas, striking down a ban on same-sex sodomy—and the right of same-sex couples to marry. So this is Obergefell v. Hodges, holding that same-sex marriage is constitutionally guaranteed. And so the inquiry in Dobbs is actually less about privacy and more about liberty. Is this right a liberty guaranteed by the 14th Amendment? And because, again, the argument goes, we can’t find this right deeply rooted in our nation’s history and tradition, it’s therefore not liberty, it’s not protected by the 14th Amendment.
The Post-Dobbs Checkerboard [17:01]
Bob Zadek: Now, so now let’s project. Let us assume that Dobbs, that the draft that’s right now in the public domain, that we’re all reading or reading summaries of, let us assume that that becomes a majority decision. From a legal standpoint, what will abortion law look like? And I’m not asking you to predict far into the future, but the day after the decision, this theoretical decision—I’m saying we are theorizing the draft decision more or less becomes the majority. And now we wake up the next morning. What will the national law governing abortion look like in the country?
Evan Bernick: It will look like a checkerboard. And it will look like a checkerboard as a consequence of the fact that different states are dominated by different political parties who have very different views on abortion. What you can expect to happen is that certain states are going to be—these are states that are Democratic, big-D Democratic—are going to effectively serve as sanctuary states for people who are traveling away from states in which abortion is banned. And what you can expect to happen as a consequence of that is precisely because people who are most affected and have the resources to move are going to end up leaving, there’s going to be less of a political demand within states that are generally anti-abortion for leniency with respect to abortion laws. The long and story short, I think, is that you’re going to get more severe abortion laws in the states where abortion is banned to begin with, and you’re going to get more permissive abortion laws in states where abortion is supported.
Bob Zadek: In other words, we will see with abortion that activity just what we see—and by no means, please my friends, I’m not trying to minimize or trivialize, I’m making no judgment, I’m making an objective analogy—many states in our country have, for example, right-to-work laws where you cannot have compulsory unionization. Other states don’t have right-to-work laws, and what happens is employers move or don’t move based upon which state is more hospitable to their activity. And we have workers who move or don’t move based in part upon what states are more hospitable. The same could be said about state minimum wage laws. The same might be said about laws about gun control, concealed carry laws. And gun control actually is a kind of reasonable analogy because it is a discussion where people have very strong moral views, and people look to the Constitution for guidance.
The analogy breaks down where the Constitution does expressly seem to say—Evan, I don’t want to get involved in individual right—but it seems to say, it can be argued that it says, Heller has told us it does say, the Constitution does have something to say about guns. It doesn’t have anything to say about abortion. But people might, if they feel strongly about it, they might move from a state that’s more restrictive to a state that’s less restrictive in part because of that. We will simply have two kinds of democracy in action. We will have those who feel that a state with restrictive abortion laws ought to change, and they have a remedy: the ballot box. And people who are uncomfortable living in a state with restrictive abortion laws, they have a second remedy, which Ilya Somin, our friend, and many others have identified as foot voting—a very effective way to affect your own life directly by your own actions and to indirectly affect government by saying, “I’m taking my business of citizenship elsewhere.” So that’s I think what it will look like. But it’s fair to say on the first morning after Dobbs that everybody will have access—that is, access as a matter of law—to an abortion. They can by their own behavior find a way to have an abortion in a way that’s not criminal, but they might have to move temporarily, as we have people right now who are sometimes called medical tourists: they go to another country or another state because the medical care is better. And abortion is, after all, a medical procedure. So those seeking an abortion will become medical tourists in a matter of speaking. And that might be the only abortion-related result if Dobbs in its draft form becomes final. Have I left out anything from a standpoint of the first morning after Dobbs becomes a decision in the Supreme Court?
Evan Bernick: I think it is important to recognize that some people are going to be more able to travel than others because some people have more resources than others. And as a consequence, the possibility of foot voting is going to be contingent upon things other than whether there is a state nearby that you could theoretically travel to. And part of the complication of Roe that Dobbs talks about in evaluating whether to overrule it—although it eventually concludes that this isn’t a good enough reason not to overrule it—is the question of reliance. The idea that for half a century, one could depend upon being able to travel to any state, including a nearby state, and even remain in one’s own state and be able to terminate a pregnancy within the first trimester. That’s no longer going to be a reality. Now, the question of whether that is something that burdens a particular individual really does turn on a lot of things. But unlike a situation in Heller where you had the inverse, where you had a lot of states with gun laws that were more restrictive than the Constitution provided, and now you have a guarantee from Heller that you can effectively, or at least theoretically, exercise the right to bear arms anywhere in the country, now it’s a situation where people have depended upon being able to exercise this right anywhere in the country and suddenly their options are more limited than they once were.
Originalism and the Rational Basis Test [21:01]
Bob Zadek: Now, we used the concept of originalism, and you explained it a bit earlier in the show when you explained how under current Supreme Court constitutional interpretation, how the Supreme Court makes its decisions on whether the Constitution protects a right not specifically listed, and you mentioned it’s the concept of originalism. Now, if Dobbs becomes law, Evan, in your opinion, is the Supreme Court—and I’m going to ask like in your opinion and then help us understand how you got there so those of us who really want to understand the constitutional implications of all of this—is the Supreme Court, assuming the draft Dobbs becomes final and achieves a majority, does Dobbs correct a prior mistake? “Mistake” is kind of simplistic, but the audience will know what I mean. Does it bring us back to where we should have been? Is it on the basis of the application of originalism and constitutional interpretation going where it should go? Give us sort of the grading as a con law student and teacher of how Dobbs does.
Evan Bernick: I would give it an incomplete from an originalist perspective, and here is why I would do that. Originalism is defined by two core commitments. The first is the commitment to the idea that the object of constitutional interpretation is to determine the meaning that was conveyed to the ratifying public at the time that the constitutional provision was enacted—in this case, the 14th Amendment, we’re talking about 1868. And the second part of originalism, the second commitment, is that judges are bound to follow that original meaning.
Dobbs does not seek to determine the original meaning of the word “liberty” in the Due Process of Law Clause, the “privileges or immunities of US citizens” in the Privileges or Immunities Clause, which is also a part of Section 1 of the 14th Amendment, or the meaning of “equal protection,” which is also part of Section 1 of the 14th Amendment. It relies entirely upon the Glucksberg test without explaining just why it is that the Glucksberg test for identifying unlisted fundamental rights is itself grounded in the original meaning of the Constitution. It might be the case that the Glucksberg test, which looks for rights that are deeply rooted in our nation’s history and tradition and narrowly defined, is a good way to determine the original meaning of the 14th Amendment, although I have some doubts about that. The point is that the draft opinion does not address that question. It takes Glucksberg for granted and it applies it.
Now, the outcome that Dobbs reaches, the idea that abortion is not protected by the 14th Amendment, is, I think, the generally held position by originalists. In fact, I can almost think of only one major work of originalism, Jack Balkin’s Abortion and Original Meaning, that takes a different perspective on this. But there was an article that was just published in the Wall Street Journal that called this a triumph of originalism. And I don’t think that it’s a triumph of originalism. I think it barely perceives an obligation to be originalist at all, and that that is a disappointment from the perspective of those who think that originalism is, at least at first cut, the best way to go about interpreting the Constitution and the best way to preserve the legitimacy of the Supreme Court.
Bob Zadek: And I ask our listeners to please recall or please remember: the Supreme Court is of course not attempting—I’m going to say the obvious, but sometimes you need to be reminded of the obvious—the Supreme Court is of course not performing a legislative act in that it is not expressing an opinion on abortion per se. It is simply saying, “If you, Americans, wish to express rules, laws governing abortion, you have a place to go: the ballot box.” The healthy way to cause the country, to cause the governing jurisdiction in your life—the state, the federal government—to enact laws that do not criminalize un-criminal behavior and do criminalize bad behavior as you see it. You have all the outlets you want to do that through the ballot box or by moving out of the state or out of the federal government. The Supreme Court, if it signs off on Dobbs, is simply saying, “That is where you go to change your relationship to government. You do not go to the courts. We do not get involved in what is called generally political issues.” And it’s not always easy to sort out a political issue, but it’s not uncommon. Indeed, many have said the conservatives have done this quite effectively—I leave those judgments to others—but what you can’t achieve in the ballot box, you try to achieve in the courtroom. That’s not healthy for the country, but certainly it is a tactic. And the Supreme Court, I think, in Dobbs is simply trying to say, “We don’t want to be involved in this process and we see no constitutional basis for us to get involved. We can’t find any, and therefore write your congressman.” I’m not trying to be flip about it, but that’s kind of what the Supreme Court is saying. Now, Evan, am I oversimplifying it by saying this in part is the Supreme Court asking that it be excused from the conversation of what ought to be resolved at the ballot box?
Evan Bernick: It couldn’t be clearer that that’s what the Supreme Court is doing. One of the less commented-on features of this opinion is the last part in which the Court says, “Now that we are not recognizing this as a fundamental constitutional right, what kind of standard of review are we going to apply to cases that involve abortion rights?” And what the Court says is that we’re going to apply the rational basis test. This is the lowest level of constitutional scrutiny, and it is virtually impossible on the basis of the cases cited by the Court as illustrations of the rational basis test for somebody to successfully challenge a law under it. It is so extreme that even if the government provides absolutely no reasons for a burden on abortion rights, the judge is obliged by the rational basis test to come up with a plausible justification for what the government has done. It’s less a standard of review than what’s known as an abstention rule, basically saying, “We are not going to look at the merits of this claim.” And one of the features of this opinion that really did surprise a lot of commentators is just how clear the Court is about this. There was some expectation that perhaps the Court was, with now a solid conservative majority, going to move towards overruling Roe and Casey, but it wouldn’t do so yet. It would say Mississippi’s 15-week ban on abortion is okay and the idea that states can’t ban abortion prior to viability, that’s not constitutionally required, but we’re still going to be somewhat in the business of evaluating abortion rights claims. This Court is crystal clear: it is not our business. Take yours elsewhere.
The Rights of the Unborn [25:01]
Bob Zadek: Evan, there’s one—as we run out of time, there’s one other leftover from our conversation, constitutional issue on abortion. We have spent almost all of our time on the right of the woman. We haven’t—we spent no time at all, and I’m asking you purely as a constitutional matter, part of Roe and Casey in analyzing abortion, it focused on the rights of the unborn. And does—when the unborn fetus is, in some analysis, the unborn fetus does own rights, and abortion obviously denies rights—life—to the unborn. So is there a constitutional issue insofar as the prohibition on abortion is protecting the rights of the unborn and therefore abortion law—permitting an abortion is itself unconstitutional because it says—I’m going to be really simplistic—it says you’re allowing a person to kill another person, albeit the unborn. So just help us fit, drop that little piece into the constitutional discussion.
Evan Bernick: It would be a mistake to assume that that question has been taken off the table by this decision simply because it says we are returning the question of abortion to the states. The Court refers throughout to states’ valid interest in fetal life. It draws a distinction between abortion rights and other rights that it says are not implicated by its decision on the basis of its perception that only abortion arguably involves the rights of another being. And it favorably cites scholars that have publicly argued on originalist grounds for fetal personhood as a constitutional matter. So I think what you can expect, simply because of the moral urgency of the issue and the fact that many advocates, many pro-life advocates, take the view that abortion, like slavery, is not something that one should be content to allow to be voted up or down, we can expect them to be arguing on the basis of the original meaning of the Due Process Clause and the Equal Protection Clause not only for the proposition that there is no right to an abortion, but actually states are obliged to penalize abortion, to criminalize abortion. So even if the Court wants to get out of the abortion business, I don’t think it’s going to be entirely able to, and as a consequence, the arguments that you’ve discussed are going to come up again.
Bob Zadek: Evan, thank you so much for all of your analysis on this show. I do hope we have helped our friends out there at least understand where to focus, how to—with their opinion on this subject—how to achieve a result in life in this country in the best way possible, who is simply—who in government is simply doing their job and who has, if anybody, who is actually taking away your rights. It is not the Supreme Court. The Supreme Court has made no ruling on abortion, and they are not—whatever Dobbs ends up looking like, it has not been the Supreme Court which has done anything with respect to your right to have an abortion. It is simply putting it in the proper context. Evan, thank you so much for your help this morning in having our friends be able to at least carry on a civil discussion on this very hot topic. So thank you so much, Evan, and thank you to my friends out there. Please enjoy the rest of your day and thank you so much for sharing with us some of your attention this morning. Thanks so much.
(Outro music)