NOW : Live Reaction to Supreme Court Pro-Life Argument

Happening right now on Sekulow.

Reaction to the Supreme Court arguments on the Texas abortion case. Keeping you informed and engaged. Now more than ever. This is Sekulow.

Oyez, oyez, oyez. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw nearer and give their attention, for the Court is now sitting. God save the United States and this Honorable Court. We want to hear from you.

Share and post your comments. Or call 1-800-684-3110. We'll hear argument first this morning in case 21-463, Whole Women's Health versus Jackson. And now your host, Jordan Sekulow. Hey, welcome to Sekulow.

We are going to take your phone calls at 1-800-684-3110. We are breaking down a case. It is at the Supreme Court as we speak. The second oral argument of the case.

There's two cases. Whole Women's Health versus Jackson and then the US government versus the state of Texas. That's what oral argument the Court is hearing right now. They first heard the challenge about can you bring an injunction challenge, can the abortion clinic bring an injunction challenge against the judge? And then they switched it to, we're not really doing about judges, it's the county clerks who should just be able to throw these out and not consider these and not file these claims.

So it's highly technical for both sides. I will say already there are justices like Justice Alito who bring up the idea of abortion distortion. The fact that this is even here in a week and a half that we're even considering this but there's all these other issues that you can't get out ahead and get injunctions on. Justice Gorsuch brought up the idea of the COVID restrictions to churches and the Supreme Court said until those restrictions actually impact you, you can't bring the case.

You can once they do but you can't preemptively say well this is about to go into effect so we're going to do that. It is much more technical than the second case coming before the Court which is just a month away, December 1st which is the Dobbs case out of Mississippi which is the abortion ban about 15 weeks. Of course that case is going to be the one that decides Roe vs. Wade and the constitutionality of Roe. This case is not that case but it's a big case. I don't want to get any, you know, this is a huge case. I mean the fact of the matter is there's a lot of play here and Professor Hutchinson had a very good analysis of an interesting series of questions from all people from Justice Breyer in the first case.

Absolutely. So one of the issues here is the whole concept of equity. The Department of Justice essentially is asking the Supreme Court to intervene essentially in a pre-enforcement manner against a state law, the state law of Texas. What's the basis of this intervention?

It's equity. Well that then means that federalism, if the Court were to rule in favor of the DOJ, goes out the window because you can bring an argument and equity in virtually each and every case going forward. So I think Justice Breyer is very, very questionable in terms of whether or not he will support President Biden's Department of Justice attempt to intervene in this case. Let me ask CeCe House and your counsel, and she's handled a lot of these cases involving women's health centers, crisis pregnancy centers, but what I wanted to ask you CeCe was your sense of, just listening to the arguments, they're still going on while we're alive by the way, but in listening to the argument get your sense of, this will be a very technical ruling I think, the big one's going to be Dobbs in a month, but this is like the prelude.

Yeah, so all the arguments so far really are more procedural. Does the Court have the ability to hear this case? Do they have the jurisdiction to hear a pre-enforcement challenge to a state law? It's not about abortion at this time, other than the abortion distortion like you said. Well I was going to say, of course it's always about abortion when the case involves, Jordan, abortion. Yes, the justices have picked up on that, that's why they're there, that's why there was a week to get briefing done, a Friday order, Wednesday briefs due, and oral argument the next week, so it's been 10 days.

10 days, no other issue gets this, it's also, remember unlike the Second Amendment rights, this is not a right that you can actually find, this is a judicially created constitutional right, it's not legislative created, it's not in the Constitution itself specifically. So this judicial creation is also at issue here and about the challenge. And here's our brief, we got it done in time, it has been filed with the Supreme Court.

Back with more in a moment. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. But whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy, and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched.

A $10 gift becomes $20, a $50 gift becomes $100. This is a critical time for the ACLJ, the work we do simply would not occur without your generous support. Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Folks, I want to kind of set up for you, remind you what's at issue here in this case. We talked about, you know, it's technical. So remember, Texas has passed this law.

It's very unique. This law allows a private right of action, so it's civil. The state has no enforcement mechanism here. A civil, if someone violates the state's abortion restrictions, and this would be post six weeks, it would be considered late term here, you could then bring a challenge against the clinic or the abortionist, a private individual. So it's a private right of action.

If you win, it's $10,000. What Texas did say today, because there was this issue out there saying, well, doesn't that, I mean, if anybody can bring this challenge and you don't have to have the direct harm, then how could anyone operate, even if, you know, abortion is legal to some extent in Texas, how could you operate if everybody could just keep bringing lawsuits against you? Texas responded that in court, once this law is actually in place, it's not, it hasn't been able to really see what happens, is that that will be flushed out and that you will have to have connection. So you're not just going to be a random person that heard about abortion somewhere. They used the example of at least have a relationship to the person who was having the abortion.

A direct impact for harm. But I think what we have to be clear here is what this case is and what this case is not. This is not a direct challenge on Roe. That is the Dobbs case.

That is in a month. But this is a big case because states, as we're representing South Dakota, are taking what I would call unique approaches to how they're handling this issue. Here Texas did a specific act and the issue surrounding it right now, Andy, is whether these, here you've got the federal government intervening, that's a question. And then also whether before this case is litigated, and it goes to what Justice Breyer was saying, can you just kill these, shut these laws down? But you've got to go back to what the question presented in each case is. What is the Supreme Court actually hearing?

Right, that's right. We are not hearing Roe v. Wade or an express challenge to Roe v. Wade in the cases that are being argued before the Supreme Court of the United States today, as Jay said. That will come later in December in the case out of Mississippi. The question here really centers around the way Texas has framed this unique law, which gives enforcement to private individuals to bring actions and civil actions in the state court against abortion providers and to prevent abortions from happening, not through state action but through private action. And the question now is, can a federal judge obtain injunctive relief against state court judges barring them from enforcing this law?

Well, wait a minute. The Supreme Court of the United States said in the 19th century that a federal judge cannot enjoin, that is, enter an injunction against a state court judge. And that is still the law today. And Texas is saying, basically, stay out of it until the case is litigated. Now, there's some sound, and I don't know if we have it, where Justice Alito basically talked about what we call the abortion distortion factor.

And, CC, we know this from our litigation. This case, while not a direct challenge of Roe, let's be realistic here. Any time a case surrounding it involves the issue of abortion, even here just in the fact that that's the enforcement, the way in which the lawsuit goes forward, we know that the abortion distortion factor with this Supreme Court can be an issue. Now, I don't want to predict how this is going to come out, but it seemed to be a real issue here.

Yes, it does. And the abortion distortion in these two cases is the fact that, as we saw, it went so quickly to the Supreme Court. You know, they made their decision to accept the cases last week.

By Wednesday, a briefing had to be done, and then today, oral argument. If this case wasn't involving a law that touched on abortion, I don't think we would have seen that kind of speed and action at the Supreme Court level. And then what we also saw was that in most cases, the Supreme Court looks at, okay, how do we save this law? That's how they actually are supposed to go into it and say laws are by themselves.

You know, they're not passed to be illegal or violate the Constitution. So is there a part of the law that we need to, maybe that's the issue, and that's why you've got a federal issue, you've got the DOJ, there's also a private issue here because you have the whole women's health versus. So what he said was, can you, and the DOJ, of course, in the abortion case said, you know, if a part of this goes, it all goes, so this can't be salvaged at all. And that's where he brought up the idea, of course, when it comes to this issue, that it's the only issue, it feels like, where there's no severability. You can't just say, ah, it's that portion, maybe you need more clarity on who can actually bring this.

We're trying to find that bite right now. But here's another one where Justice Alito talked about the unique nature, what they call the unique nature of being enjoined from pending unlawful acts. Take a listen to this. Judges have been enjoined, let me just interrupt you. Judges have been enjoined from performing unlawful acts. But here, the act that they are enjoined from performing is a lawful act. How can that be justified?

Let me give you this example. Suppose an action is brought under SB 8 in federal court, pursuant to diversity jurisdiction. Let's say a woman sues a doctor who has flown in from another state to perform the abortion. Would the district judge in this case have the authority to enjoin another district judge from even hearing that case? No, I don't think that the injunction could properly reach the federal system. I don't think that there is any realistic possibility that any of these suits could possibly proceed in federal court. Because the distinct feature of SB 8 is that the plaintiffs who are authorized to sue need not have any injury or suffer any harm from the prohibited abortions. And so I think the idea that there would be a proper basis for Article 3 jurisdiction is lacking. This sounds very technical, but what's important here is that the court not create a different set of federal court precedents, Professor Hutchison, because this involves abortion. I think that is correct. So if you look at the underlying law, yes, it implicates the right of abortion, but it does not control abortion.

That's number one. Number two, we should keep in mind that this case is largely procedural, I think, as Jordan has set forth. The question is largely whether a federal court can enjoin the Texas law before it is violated. And so this would be an odd circumstance. I think you would have to search high and low within the federal system to find precedent for such an action. That question was asked by the justices of the Supreme Court today, and basically neither the DOJ nor Planned Parenthood could come up with a plausible set of facts in support of their claim. So this is, at the end of the day, basically an innovative claim against very innovative legislation.

No, I think that's right. I mean, the clash here is kind of classic in that the law is unique in itself, and I think states are going through unique types of laws now. And then at the top of that, you've got this unusual challenge with the Department of Justice, Andy, your former employer, jumping in here for, I think, political reasons, obviously. But I think it's serious.

Well, the Department of Justice, of course, and the Biden administration is leaping into the case immediately to help Planned Parenthood and to help the abortion industry. And that's really what this is all about. And I think it's premature.

No, I don't think it's premature. I think it's illegal and an unprecedented and it can't be done. The law is presumed to be constitutional, OK?

It hasn't been tested yet. Where is the federal jurisdiction here to get in from the Department of Justice to obtain injunctive or declaratory relief against state court judges, clerks, and other officials to prohibit them from enforcing a law that has been passed by the Texas legislature and is now the law of Texas? Let me play just solido. The key is it's very technical how it starts. Listen to his last sentence here.

Take a listen by 45. I appreciate your point. Texas, as you say, has done everything it possibly can to try to make it difficult for abortion providers to vindicate their rights under our precedents.

I get it. I think it's a forceful argument. But I think we have to be concerned about the implications of the mechanisms that you propose for providing some kind of relief. A lot of your brief and all the other briefs that have been filed against Texas in both of these cases suggest that we should issue a rule that applies just to this case. But that's inconsistent with the rule of law. That is a gigantic statement. And I think everybody needs to be aware. That is a gigantic statement because he's basically saying what we've been arguing for 35 years. Then when it comes to abortion, CC, really quickly here, all the rules change.

Absolutely. We call it the abortion distortion. And you heard it right there is that only change the rules for this case, not across the board. And what Justice Alito is saying, well, we can't do that. If we change the rules, it changes them for everybody. But that's not what they're asking. They always want to be singled out and have special treatment.

They do. And then Justice Breyer, who is not a favorable to the life position, said, you know, if we do this, we really have to do this for everything. It'll apply to all these tort claims. And so we're creating a whole new way of suing judges, basically, and joining judges and the federal government coming in against the state court judge. And so in a way where they're not acting unlawfully, they're just following the law of the state and whether or not. So again, I think that that is key.

And it's key in the mind of the justices when it comes to these procedural matters. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. But whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy, and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support. Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Welcome back to Secular. We're going to take some phone calls too.

People got questions about this. 1-800-684-3110. That's 1-800-684-3110. Robin just called in from Pennsylvania.

Online one. Hey Robin, welcome to Secular. You're on the air.

Thank you for having me, gentlemen. My question is, would this Texas law allow fathers who made these babies, who helped make these babies, and perhaps want the baby, to sue? I think it's a question of how involved they were, and so will they be able to make the case of court.

What Texas said is that this idea that it's an open-ended, everybody's been deputized by the state is not accurate. And that this hasn't been flushed out in court. And in court, the judge can ask, how are you involved here? So if you were a very involved father, you could.

If you were someone who didn't know about it, then learned later that somebody you had a relationship with got pregnant and had an abortion, I'm not sure that the judge would allow that. We don't know that yet, because this hasn't actually... And they can only sue the provider. They're never suing... That is a key point. That father, hypothetical father we're talking about, cannot sue the mother.

Ever. In any of these situations. It's just the abortion claim.

No claim. It's against someone at the clinic or the abortionist themselves. But you said something else, and that is, I think the way the law is going to come down, at least the way I see it, is that it's kind of like in the astat... the religion cases. You can't just be the offended observer.

You know, I see a menorah or I see a nativity scene and I don't like it. Therefore, I'm going to sue. What Texas, to me, seems to be saying, Andy, at least in their oral argument and in their briefing, is no, wait, no, no, no. That's what they're trying to say to make this the parade of horribles. That's not what this law actually does.

Well, that's absolutely correct, Jay. And the suit, as you correctly pointed out, is against the provider. And there is no parade of horribles until the law plays out, and that hasn't happened yet.

Already, the United States Department of Justice is jumping in, trying to enjoin these things from happening, when the law hasn't played out, a law that is deemed and presumed to be constitutional on its face. So in Texas, this is what the Texas Solicitor General talked about, in the hypotheticals, these are still hypothetical, is that this is state law. So in your state, it's basically intentional infliction of emotional distress. There's also, in Texas, basically a crime of outrage, that you have seen something or been witnessed to, or been a part of something that is so disturbing to your conscience, it has harmed you, physically, mentally. So the example is, if you were on the phone with someone, a family member, and a crime occurred, you walked in on a crime scene, involved people you knew, you would have an action potentially against the people who committed that crime, they would still be responsible at different levels, but to you. That's specific, that's why we have these specific state torts, and states are different.

You know, where we live, I'm not sure we have a crime of outrage, that might be something specific to Texas, but it's intentional infliction of emotional distress to some extent, but it's walking in, feeling it, seeing it. With a real connection to the matter. So they have given that point, Texas has given that point that we're not saying everybody's running around to sue abortion, that you've got to, and I think that makes sense, because judicially, that's the first thing judges are going to consider. But I think it's important to point out, at least I think my view of it, CeCe. Because whistleblowers are a connection also.

They don't have to be hard personally. But they have to have unique knowledge, and I think my sense from what Texas was saying is, and again this is a pre-enforcement challenge, but CeCe, is you've got to have some kind of, what we would call causal connection between the abortion itself, and the mother, the child, whatever, the situation, that would rise to the level where you could then bring a claim. Yeah, that's exactly what Texas argued, that it's not just anybody anywhere, but it's somebody that has some kind of harm, that they would have standing to bring these suits.

And apparently right now, there are 14 of them in state courts that are trying to proceed, and that was another question, an answer that was brought up before the Supreme Court today, that yes, there are currently state suits that are going on, and that's the appropriate place for these to happen at the initial stages. So, I think 10 days is when you'll see orders for summary judgment, and that again is the correct place for these cases to happen, is in the state courts, not in the federal courts at this time. This case, I think, Harry, uniquely has, because of the way Jordan said, it's moved up through the system so quickly, and things are moving so rapidly, that it's really kind of, I mean, you could have a decision in a week here.

I mean, you could have a decision in three days. I think that's true, and I think the timeline that you outlined for us suggests that many proponents of abortion believe that abortion is indeed a morally superior right. It's an elevated constitutional right. I think the court was perhaps wise to accelerate its decision-making in this particular case, because there is strong public interest in the case, but I also think the court is very, very cautious about granting the DOJ, that is the Department of Justice, and Planned Parenthood the relief that they seek for a couple of reasons, not the least of which is they can't really enumerate what relief they're seeking, but also, if they grant relief in this case, they open essentially a Pandora's box of additional litigation down the road, everyone will then run to the federal courts, perhaps run to the Supreme Court and say, no, my rights have not yet been violated, but they will be violated in the future, and I think the Supreme Court is rightly worried about the consequences of any such decision-making. Again, I want to encourage you, if you have questions about this, and we know that this is getting into the technicals, but if you care about this life issue, these are extremely important cases. Just to be flat out honest, ten years ago, a case like this gets to the Supreme Court, you fight it out, of course, we always fight it out, but the likelihood of basically getting a piece of paper back from the Supreme Court was 99.9, I don't even know if it was, it was like 100%. So the fact that these are even being considered, that the justices are having to go through these mental motions and think through all of this, this is because of the new justices on the court. It's the new justices on the court, it's State's Camp coming up with creative ways to address the abortion issue. As I said, we're representing South Dakota in an informed consent case that I think is very unique and very significant in that regard. So, and you're right, this is, look, we're going to find out in not too long, about a month during the oral arguments, where the court's leaning at least on Roe versus Wade. These are very hard, you know, Andy, I never like predicting a case on oral arguments, we're not going to do it here, and on this one in particular, it's very technical. But the fact that the court's addressing these issues, I think, is a big deal. This is a big deal. This is the biggest series of abortion cases in our lifetime since Roe. Well, certainly since Roe, I mean, and that's a long time. And the court, as Professor Hutchison pointed out, sees the public interest in these cases, the public importance in these cases, and expedites the hearing of them, puts them on a short string.

And we are having two cases argued simultaneously today, and on a very short deadline, and the justices are honing in on the procedural aspects, which is what the case is about at this juncture. Alright folks, we come back, we'll continue to analyze this, continue to play you sound from the case being argued right now at the U.S. Supreme Court, and take your calls, 1-800-684-3110, that's 1-800-684-3110, and let me be clear too, go to ACLJ.org, all the information there, you can find our brief there as well, at ACLJ.org, to be a part of the show today. Do you feel like this is a moment for the pro-life movement? Give us a call, 1-800-684-3110, we'll be right back. Every dollar gift becomes 100. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org.

Freedom! This is a case of a state law, a state law that allows private individuals to bring a private right of action, so it's not the state enforcing abortion laws, it's private individuals on instances where the law is violated, they can then bring an action. If they're successful, it's a $10,000 claim. Now there's questions, you know, has everybody been deputized, you got everybody running around Texas trying to file lawsuits against abortions, that's how they've tried to set the stage. The abortion industry has basically said, we're not operating in Texas right now. I think there's one or two abortions who are flouting the law and saying, see, we're going to continue doing this, but for the most part, the big, I mean there's a giant Planned Parenthood facility in Houston, for instance, that they put a lot of abortions on hold.

Now they're trying to use that for their own argument. See, we can't do what you've given us the constitutional protection to do in Roe vs. Wade and the other Supreme Court cases because of this law. And what the justices are asking back is, this law, one, you're just trying to stop it before you've even seen how it would work. So, Texas has been explaining more about how it would work. I want to hear from you at 1-800-68-431-10, when you have this case that, you know, it was just 10 days ago, a Friday, that we got the order that Briefy would be doing in five days.

So we'd have from Friday afternoon to Wednesday afternoon of last week. And then the oral argument would be today on two different cases, two cases arising out of the same law. One is the abortion industry's challenge to the judge, who's being defended by Texas, and then the DOJ challenge to Texas, who is also being defended by Texas. So that case is at the Supreme Court. We will get a decision on it, I think pretty quickly, because this was kind of an emergency action.

Second case, Dobbs, we probably won't get it one really quickly. That's on Mississippi's, that's the heartbeat bill. That is a direct challenge to Roe v. Wade. There are direct challenges to Roe v. Wade in both of these cases today.

The oral arguments have not spent much time on that. The justices have, of course, alluded to this is here because this is abortion. The fact that we played that bite from Justice Alito, that you're basically want us to have a rule just for this kind of, just for abortion, and everything else would be different. Yeah, and that was because we, as we said earlier in the broadcast, it's the abortion distortion factor. So actually, even Justice Breyer mentioned this.

I'm going to play that bite in the second, next segment coming up, because it's a long bite, but it's important to break it down. But I do think it's worth pointing out here at the outset of the second half hour of the broadcast, that remember, this case is the prelude to the Dobbs case. And CC, in the Dobbs case, we have the direct challenge. I mean, it's here too, but it's really the issue granted a certiorari involved the constitutionality of Roe v. Wade.

Right. So in Dobbs, the court will be talking about the actually judicially fabricated right to abortion that they created in Roe v. Wade. So Dobbs talked that law, it stops abortions after 15 weeks. And the question then becomes, when does a state, when do they have a compelling interest to protect the life of an unborn baby? And so it goes right to the heart of Roe.

I think that's exactly, like I said, these cases, Jordan, are the warmup. Now I want to say this also to our ACLJ members. We were able to file a brief. I think we had to do it in four days. We were on the air when the order came out on a Friday. It was last Wednesday. So the weekend plus you had two, four days.

Four days. So, but here it is. And that's because of the support of members like you, that this brief has been filed at the Supreme Court of the United States. So for all of our members out there, we want to say thank you for standing with us on this important issue. Now, this is the first day of our November matching challenge, which means this is the month where any amount you donate, we get a matching gift.

That's right. You can donate online at ACLJ.org. It's a busy time on life, especially. Remember, on all those issues, you know, like we've been tracking that infrastructure tax issue there and getting into your bank account closely. Now, while they're still having trouble even getting a vote on that, we're not backing down there. We're keeping on all these issues and working and filing the briefs. Support our work at ACLJ.org. Double your impact today. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad, whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases. How we're fighting for the rights of pro-life activists. The ramifications of Roe v. Wade 40 years later. Play on parenthood's role in the abortion industry. And what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift. Come back to secular. We are going to take your phone calls to 1-800-684-3110.

That's 1-800-684-3110. And I know, Dad, you want to play this fight from Justice Breyer. Let's set it up for people. It's an exchange here. Yeah, because look, Justice Breyer is not normally, on these life questions, is not normally an advocate for the life position, raised an issue that Professor Hutchinson's going to talk about afterwards. That what Planned Parenthood in the United States are doing here is really going to create havoc in the judicial system.

Take a listen. You say judges, at least in many circumstances, is an enforcer. There are 4 billion court suits in the United States, okay?

And probably in 3 billion of them, somebody thinks something's unconstitutional. All right, so can they all sue the judge? Everybody goes into federal courts, who's the judge?

In the state court? All right, what's the difference between this case, where you think he's an enforcer, and 4 billion other cases where you've read their briefs, you understand their argument. What's your response to it? The response is that under the rule that we're advancing here is that where a state is trying to nullify the exercise of a right, a constitutional right that's been recognized by this court, by delegating enforcement to the public, and taking away the normal, ordinary executive officials, and then also creating special court rules in order to turn the court system. We're not saying that judges or clerks are intending to do anything here, but it's the rules that have been created by the Texas legislature that turn courts into a weapon that can be used to nullify constitutional rights. All right, so let's break down what Justice Breyer was saying there. Well, essentially, Justice Breyer was raising a worry that should have been apparent to Planned Parenthood and the supporters of abortion. Essentially, what Planned Parenthood is trying to do here is to open a Pandora's box, which could lead to billions of lawsuits, which would then have the presumptive right to go to the United States Supreme Court for adjudication, even before anyone's constitutional rights have yet been violated. So, it strikes me that what Justice Breyer was saying is that the petitioner, I'm sorry, the Planned Parenthood, the advocates of abortion in this particular case, simply should have been suing the state legislature for passing this litigation, which they believe violates the Constitution, and they should then wait for the adjudication in state court, and then once the state courts have ruled, then they might be able to kick it up to the United States Supreme Court, assuming the Texas Supreme Court does not agree with their particular position. And I think this raises the point that what's at stake here, I don't look at this case by itself under the microscope, so to speak.

You've got to look at this in a long-term scenario. The long-term here is only a month, and you've got this case, then you've got Dobbs, which is the direct challenge to abortion, then you've got the South Dakota informed consent law that we're handling. So, all of these major cases are coming up, Wes, at the same time.

So, this is a very significant moment. Yeah, it's the culmination, a culmination that's still building, of changing attitudes and changing arguments about the whole issue of abortion. And as wrongly decided as Roe and Casey were from a constitutional perspective, there's some judicial acrobatics going on there, it gave the right to an abortion before viability. But that has totally changed over the last decades, viability has, and so advances in medicine have changed when an infant is viable. Also, you add to that, that a heartbeat is detected at six weeks, a heartbeat is indicative of human life, and the fact that an unborn baby can feel pain before a viability, this is changing the debate. Because, CeCe, this is really what's, I mean, people are forgetting in all of the technical questions here, this was a heartbeat pill.

Absolutely. It bans abortions, SB8, bans abortions after a heartbeat is detected. And so, you know, that's always the issue, and what Wes is saying is we understand that a baby is a baby medically now better than we did in the 1970s. And so that ruling, that bad ruling in Roe v. Wade, really needs to be attacked and is being attacked in Dobbs of when does a state have a compelling interest to protect a baby's life? That's not necessarily viability anymore. It might be at a heartbeat. So we'll see where these pieces go. Let's go to Lewis in Colorado on Line 1. Hey, Lewis, welcome to Secular Year on the Air.

Thank you for taking my call. I want to know why is it okay for a state like New York and others to expand their abortion laws like Virginia, put the baby on the table, and then you decide. But they can't retract it, change it. Well, this is, of course, this is the interesting issue because in Roe v. Wade, it took the issue of abortion, Andy, out of the state court system or the legislative systems, actually, and moved it to a federal right.

That's right. And that's what created the problem. A federal right that does not exist in the Constitution of the United States. And I've said before on this program, I defied somebody to please tell me where in the Constitution of the United States there is a federal constitutional right to an abortion. And the answer is there is not. That's why these matters relating to life and so forth should be decided by the sovereign states on behalf of the citizens of the sovereign states.

And they should make the determination as to whether or not abortions are permitted, when they're permitted, if they're permitted, and other things related to that, and not the federal government because they are not federal constitutional rights. Let's go to Julia in Idaho on Line 3. Hey, Julia, welcome to Sekulow. And let me encourage everybody, if you're listening, give us a call if you want to be part of the show. 1-800-684-3110 is the number.

That's 1-800-684-3110. Hey, Julia, you're on the air. Yes, Jay, I just want to call and tell you that I'm just praising God for you, for the work that you do.

I am a woman with an abortion in her past, and I have just a heart that breaks for the young men and women that go through this, not fully understanding, I think in many cases, the implications down the road. I'm just so grateful that we are in a defining moment that I believe God is going before you to prepare and make ready the way. I believe He is going to surround you with stature and with favor. I believe the Holy Spirit will give you the wisdom and discernment and the words to speak in the very moment they need to be spoken in a way that they cannot even be refuted or responded to. And I just want you to know we support your ministry. I appreciate that. And that multitudes of people across the nation are praying faithfully for you and are just so pleased with the work that you're doing.

So praise God, and we are holding you in prayer and looking forward to a very positive outcome to protect those precious souls who have lost. Like I said, this is a unique moment in the abortion battle because you've got a confluence of these three major cases, two at the Supreme Court, one at the Eighth Circuit. The Texas heartbeat bill. Dobbs, which is the direct challenge to Roe versus Wade.

South Dakota with a very unique informed consent law. And you have all of these cases hitting CC simultaneously. Yeah. And, you know, like you mentioned earlier, this is the court to hear these cases. And perhaps that's why these cases are here at this point in time. So we hope that the Supreme Court does what's right and that they follow the Constitution. Like Andy says, there is no right to abortion in the Constitution. So the day needs to come where we start protecting babies' lives again.

Well, let me play Amy Coney Barrett because you're not here. A lot of people, you know, remember her confirmation. Here's what she had to say during this argument. Counselor, are you arguing that there's a constitutional right to pre-enforcement review? And if so, how do you reconcile that with Sheldon versus Sill? So our first argument is actually that Congress created the right in Section 1983.

Assume I don't buy that. So I think that, yes, there is. And Ex parte Young recognized that in these circumstances where the penalties are so severe and where it's difficult to find someone who is willing to even violate the law for a test case, I think Ex parte Young addressed all of that and said that, in fact, there is a procedural due process violation. Andy, that's a double talk. I've heard a lot of double talk in court, let me say. But when a judge asks you a straight-out question, as Justice Barrett asked, you're saying there's a constitutional right to pre-enforcement review, and then Mark Herron comes in with his double talk. Well, he didn't know what the Sheldon case said. He probably didn't know what the case had said.

And came up with some concocted answer. But she's absolutely right in what she said. There is no pre-enforcement review. At this point in time, the government should not be involved in suing state court judges.

Ex parte Young. That's what this case probably sets up, if it goes in favor of Texas. And then, of course, one month from today, they argue Dobbs. And the Dobbs case being really a 100 percent direct challenge to Roe versus Wade. In this case, they can try to make their way around that, what really is at stake here.

But let's be honest. If Texas is successful here, we're the pro-life advocates. Many states, probably more than half the states in the country, would adopt similar laws. So this is the major test case on this. The impact it could have is gigantic. That's why it's been rushed up to the Supreme Court.

The Dobbs case is the fundamental challenge directly to Roe versus Wade. That will be argued on December 1st. We'll be right back. We'll be right back. We'll be right back. We'll be right back. We'll be right back. We'll be right back.

Welcome back to secular. We'll be right back. We'll be right back. We'll be right back.

Well it's an absolute honor to be here. All of the things I think we have to understand is the beginning of, what I will call, the trilogy of cases involving abortion this term. And then you've got the informed consent law in South Dakota that we're defending so although this is a unique moment in history I think West's and On this issue probably the most unique moment Oh absolutely as important as the legal arguments are in the court hearings the the backdrop how we got here is just as significant Because we're having this convergence of science and medicine the moral issues and the fact that even those who are pro-abortion By and large will admit that what we're dealing with is a human life And so it's unimaginable as it as it seems the question is at what point is it? Okay to end a human life.

It is totally innocent. Yeah, yeah This is it's recall from Tim in Colorado online one. Hey Tim welcome to secular you're on the air Well, thanks for taking my call My question has to do with this idea that's come out of the Texas case where they are allowing as I understand it people to sue individuals Have you? Discussed or considered what the revocations might be if other if other states took Similar action in other types of scenarios for instance Second Amendment rights or other other Not abortion related issues or the states would allow individuals to sue other individuals Rather than the state as an actor and what impact that might have is so in Texas for instance If someone walked into your home committed atrocity with a firearm Okay, and we don't to get into specific details to be understood.

I'm saying that you walk in on it and You know that said you went to an emotional Understandably meltdown where it's physical emotional. There's a there's a law that Texas, right? So that not only is it a criminal act that that person but you can then bring a challenge It's they call it the crime of outrage there, but there's probably multiple laws actually you'd be yeah, of course So you can that already exists that does exist so I think in your example it's not about Just being a firearm manufacturer something like that, which by the way, they get sued all the time, too But it's about I you know, you walked in on the situation So yes, the person who used that firearm to commit a crime could also be yeah liable to you in this civil setting Well, just as gorgeous talked about this chilling effect issue. Take a listen on chilling effect Do you agree that? Other laws often have chilling effects on the exercise of constitutionally protected rights that can only be challenged defensively Not to this extent But to agree that there are laws defamation laws gun control laws rules during the pandemic about the exercise of religion That discourage and chill the exercise of constitutionally protected liberties Yes, and that they can only be challenged after the fact I'm not sure that they that all of those laws could only be challenged after the fact but there may be some Of course, he's right justice Gorsuch.

I mean he had it very exactly, right? Well, I think you're absolutely correct and I also would congratulate Mr. Heron on being unprepared for an obvious question Basically if he's been alive for the last a couple of years He should be aware of a fact that many for instance pandemic Regulations have been challenged before the United States Supreme Court and what has the United States Supreme Court done? They have allowed the litigation to proceed at a lower level before intervening either at state court or within the confines of The federal court system and they've allowed this litigation to proceed on the merits What we have here is an attempt by abortion providers and the department of jet of DOJ That's to do what to basically go into court and ask the Supreme Court to declare Unconstitutional a law before it has ever been applied. This is an unprecedented unprecedented move by abortion providers and the state of Texas and I think I hope they lose and Folks we obviously we follow the brief and in favor of Texas So obviously we're our position is Texas is correct. But what's interesting here is to not lose sight of the question presented today Question presented today and this is what's being argued what and then I'm reading from what the Supreme Court said May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state state court judges state court clerks other state officials or all private parties to Prohibit SB 8 from being enforced That's the question can the United States stick its nose into and in with through the federal court system and obtain injunction against state court judges against the enforcement of the heartbeat bill and you know what even justice prior CC seem to indicate that he had problems with With what the Department of Justice was doing here.

We'll find out in probably days. I suspect We're gonna find out if the abortion distortion factor still carried a majority. We'll see CC Right and and and again we saw that the abortion distortion factor did play a part in this case because it came so Quickly, which we probably wouldn't have seen if it was just a regular case It might not even be before the Supreme Court at all if it were a different issue At that SB 8, you know abortion is banned after a heartbeat is detected If that weren't the case, we probably wouldn't be even having this this discussion But I'm hoping like you said that Breyer gets it that they're asking for relief That they would never give to any other party. And so hopefully they will not give it here So justice Thomas addressed some of that and let's take a listen Do you have any examples? Not precedents but examples of the national government Taking part in our playing the exact same role or doing exactly what you're doing In other areas involving constitutional rights I don't have examples But that's because I'm not aware of any Circumstance where a state before has sought to prevent access to the ordinary mechanisms for judicial review.

That's not That's not true She doesn't know any other Circumstances where the state government has sought to prevent access to the ordinary mechanisms for judicial review How does SB 8 do that right? How has state of Texas done that it hasn't I think what it's gonna come down to is whether like there's abortion distortion carry the day Yeah, and everyone kind of puts their blinders on and they do exactly what the DOJ is talking about what she's talking about there Which is do they make up a rule? special for abortion Justice Alito is already alluding to it. We've seen Justice Gorsuch alluding to it. So justice Barrett alluding to it Justice Thomas alluding to it.

You know, are we gonna just treat this differently because it's abortion. That is the big question here And remember the direct challenge brokers wait, how we got support our work at a CLJ It's a CLJ dot org. Talk to you tomorrow At the American Center for Law and Justice we're engaged in critical issues at home and abroad for a limited time You can participate in the ACLJ's matching challenge for every dollar you donate It will be matched a $10 gift becomes $20 a $50 gift becomes 100 You can make a difference in the work. We do protecting the constitutional and religious freedoms that are most important to you and your family give a gift today online at aclj.org