There was way too much to cover on the Dobbs decision than the boys could cover in part 1. In this episode, they skip the beer review and fill in some of the important points they missed in part one.
They discuss the history of Roe v. Wade, stare decisis, and respect for precedent. They review the attempts at gaslighting by the government and the media about the threat of right-wing violence.
Also, will the Dobbs decision affect other decisions that rely on a similar reading of “substantive due process”? Dobbs explicitly says no, but Justice Thomas says they should review those cases, and the dissent says it’s the logical conclusion. P&C agree.
After Dobbs, is there a “right to privacy” in the constitution? Should there be? And is a general “right to privacy” distinguishable from a right to an abortion?
We keep hearing about “domestic terrorists,” and whether one or the other side of our political debates is more dangerous. It seems rather clear on this one. The threats and violence have come from the left.
3 Comments
Interesting discussion, but I think you undervalue the reliance interest that women–and to some degree men–had in the confidence that a women’s right to choose was protected in Roe and Casey. Imperfect decisions thought they were, they gave women reason to believe the law was settled and they could make life choices without being forced to carry a pregnancy to term. This was liberating and to take it away after nearly 50 years is wrong. (It would be better if it was codified into law). And not every state is keeping an exception for rape, incest, or the life of the mother. Also, the status of a fetus as a person is not settled. Under Jewish law, for example, a fetus is not considered a fully-fledged human being, and abortion is required if the fetus threatens the life of the mother. A lawsuit filed by a synagogue in Florida is challenging the state ban on abortion after 15 weeks as a violation of freedom of religion. All that said, I am glad you boys are not shying away from controversial issues! Keep it going.
Thanks for including my comment in your EPA podcast. Let me clarify a couple of points. “Reliance interest” is sort of al legal term of art that means, as you suggest, that the law is settled and should be respected. Also, here we are talking about taking away a liberty, while in slavery it was about restricting liberty, so the two situations are different. As for Jewish law, it does not encourage or condone abortion as a method of birth control, but only when necessary if the mother’s health is endangered. Since a fetus is not a person until birth, technically abortion would be allowed up to birth, but I think if the baby has reached viability when the danger presents itself, you would do a Cesearian and eliminate the threat that way. But as you say, this whole controversy may work its way out politically, and given the results in Kansas, the public seems to be in the middle on the issue, allowing abortion up to a certain point of pregnancy and with life, incest, and rape exceptions.
Aren’t we talking about taking away a liberty and restricting liberty in both cases? E.g., with slavery, we’re taking away the (wrong-headed) “liberty” of the slaveholder and giving liberty to the slave. With abortion, we’re taking away the (wrong-headed) “liberty” of the mother to kill the baby and giving liberty to the baby.
The question of Jewish law and freedom of religion is going to be an interesting one. If, for example, Jewish law requires a woman to have an abortion in a case where state law forbids it, that will certainly be challenged in court. I suspect the religious freedom argument would prevail. The court almost always comes down on the side of religious freedom.