LIVE REACTION: Supreme Court Reconsiders Roe v. Wade

Today on Sekulow, will the Supreme Court overturn Roe vs. Wade? We'll analyze the oral argument. 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. Recall 1-800-684-3110. Mr. Chief Justice, and may it please the Court, Roe vs. Wade and Planned Parenthood vs. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. And now your host, Jordan Sekulow.

Alright, welcome to Sekulow. Literally five minutes ago, the Supreme Court wrapped up the oral arguments in the Dobbs case. This is the first direct challenge to Roe vs. Wade since 1992 and the Planned Parenthood vs. Casey case, which you likely heard being mentioned.

Casey and Roe consistently throughout. If you were listening to the oral arguments, which were provided live, I want to go right to my dad. Because right away, oral arguments have changed. There were justices in the past who used to say, including Justice Thomas, who said you have this one-hour restriction on oral arguments. And it was kind of whoever, whatever justice was the loudest who talked the longest. And it was really the briefs that decided things.

But now, things have changed. Chief Justice Roberts allows everyone to ask all the questions they want to ask, still allows rebuttal even if you go over the time. So this was almost two hours of oral argument. So dad, right off the bat, it does seem like the oral argument has more impact today than maybe we would say ten years ago for people like Justice Thomas.

Yeah, I think it does. Look, I've argued under both systems. So I argued when it was basically you had 30 minutes and if the red light went on, you were done. And the justices interrupted each other and you oftentimes were unable to really answer a question because they were making speeches or arguing with each other through the lawyers. And now you've got this system that John Roberts has put in place where you actually have two minutes uninterrupted. You know, the longest I think I ever went was 37 seconds uninterrupted.

So the fact that you can go for two minutes doesn't sound like a lot, but you can get a lot out in two minutes. And really lay out what your case is, I think is better for the court and better for the advocates and better ultimately for the decisions they come out with. So I think it does change the role of oral argument. Having said that, in a case like this, I think the justices have a pretty clear view of where they want to go in this case. And this was a case where it was a direct request to overturn Roe vs. Wade. I mean, the Solicitor General from Mississippi I thought did a very good job. I think all the lawyers, by the way, did a very good job across the board.

I'll be clear there. I don't agree with the other side's position, but their advocacy was good. But they could answer the key question is, you know, this viability issue and it's more than viability now and viability has been a changing number scientifically. Because we believe life begins at conception. So this is, at the end of the day, what Justice Alito said, we're talking about fetal life here. And the Solicitor General of Mississippi said this is the only time where another life is at stake in a procedure.

And I think that bode well also. The same lawyers who would get up before the Supreme Court today and say, well, it's got to be viability, were the same organization's dad who got up in the partial birth abortion cases and said no. It had nothing to do with viability. Abortion until birth.

And I think that the justices of the court, they know that. The groups like Center for Reproductive Rights and Planned Parenthood, they don't support a viability standard. That's not their standard. Their standard is abortion with no restrictions.

Yes. I mean, they were moving the glass, so to speak, or moving the ball under the glass, so to speak, by all of a sudden becoming the viability doctrine. They don't believe that. They believe that abortion should take place. Look, they believe in partial birth abortion, late term abortion.

So I don't think they're kidding anybody here. Yeah. I mean, that was, again, I think it was just to point out to people that argument being made is not their actual position. That is not the position of Planned Parenthood or the Center for Reproductive Rights, which is their basically like a legal arm. We're going to take your phone calls on this, 1-800-684-3110. There's a lot to analyze, obviously, after two hours of oral argument.

Give us a call, 1-800-684-3110. This, again, first time that the Supreme Court has heard on the merits, a direct challenge to Roe vs. Wade since 1992. We'll be right back on Secular. 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, a 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. I want to go right to this fight because it's very important, obviously, where the Chief Justice plays a very important role, especially in cases that you know are going to be very decisive and divisive on the court. First, I mean, and we'll play it later, I mean, Justice Breyer took a shot at the new justices of the Supreme Court, saying, well, just because we have new justices, it's like they don't get a new opinion. But they do. That's why this case is there. This case would not have been there 10 years ago because of the makeup of the court.

So, I mean, that's just reality. I love that the court always wants to be above politics. All of them got there because a politician, the President, chose them, and politicians in the Senate confirmed them. So they only get there because of politics. I know that, again, and on the left, let's be honest, they're the most political justices on the court because you can go through all four and you know exactly where all three of them now and you know exactly where they're going to be.

So I just want to underscore that, but I want to play this because this, I think, sets the tone for where we are in the country, why we think this is so serious. And this was in a brief that we filed. It's from the European Center for Law and Justice. We filed three in this case. That brief focused on the international scope. Where is abortion internationally? And there's kind of two measures there. The first, though, Chief Justice Roberts brought up directly.

Take a listen. I'd like to focus on the 15-week ban because that's not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People's Republic of China and North Korea. And I don't think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those share that particular time period.

I think there's two questions there, Your Honor, if I may. First, that is not correct about international law. In fact, the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier. So, for example, Canada, Great Britain, and most of Europe allows access to abortion right up until viability.

It's actually not true. So, right off the bat, it is China, North Korea, and the United States that have never defined viability. It's not defined. They keep using that term, but that's not clearly defined.

You can't say, okay, this is now viability. That's why they're using that because they want it to be open-ended to continue to be able to fight for abortion until the end of pregnancy, up until the pregnancy is over. The second part is if you actually do extend it to the countries that allow elective abortion, this is the list.

There's only seven. Canada, China, the Netherlands, North Korea, is it Singapore, the U.S., and Vietnam. And if you then analyze that in Europe, I mean, she's talking about the Netherlands. So, this idea that they're wrong, I think that fact, we don't want to be like North Korea and China, two of the worst human rights abusers in the world. I think that, you know, our international office, our European Center for Law and Justice, sent in a major brief on this. And in that brief, we set forth what the international law actually is.

I'm going to turn to C.C. Heil, who's our senior counsel and also does a lot of work with our European offices and international offices. But the fact is, European laws on abortion are more restrictive than the United States.

Absolutely, they are. And we pointed that out in the brief. And what's amazing, just like Jordan said, we are one of seven countries that allow abortions after 20 weeks. So in Europe, the European Court of Human Rights actually recognizes the life of the baby as a competing interest. And so they actually require that you balance that, you balance the baby's life with the choices of the mother. And we don't do that in the United States. In fact, they were arguing basically that, you know, the rights of the mother just absolutely trump the rights of the baby.

Go ahead. Thanh, we pointed out in our brief as well that these countries that she's, that the attorney for the Center for Reproductive Rights, which is like the legal arm of Planned Parenthood, when they are focusing in on these European countries trying to say, well, we're just like everybody else, we're not. And I think this is important for people to understand because I think you think, oh, if, you know, these other countries are more liberal, they must allow much more access to that than the U.S. and, you know, this is coming out of Mississippi. The truth is France, we don't see it as a country that is particularly conservative when it comes to their law. It's 12 weeks then.

Yeah, this just totally eviscerated their argument, Jordan. I mean, you went through the seven countries that don't, that permit or restrict abortion after 20 weeks. Two of those do restrict at 24 weeks.

Only five have no limits. And she was forced to fall back on this defense of European standards. Well, Jordan, all of those countries accept some sort of gestational limit where viability is present and restrictions should be afforded. And, you know, people think of France as this bastion of liberalism.

Jordan, the restriction there is 12 weeks. So how in the world are you going to argue that 12 weeks in France is somehow the gold standard, but Mississippi can't come down at 15 and be somewhat reasonable when it's more generous? So, Jordan, if you play that whole exchange and you really lay out the arguments, it just eviscerated their whole point on viability. I want to go play this sound because I think it's important because this happened very early in the oral argument. There's Justice Breyer taking a shot at new justices on the court, three specifically who were appointed by President Trump. Take a listen. There will be inevitable efforts to overturn it.

Of course there will. Feelings run high. And it is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure. Only, quote, the most convincing justification can show that a later decision overruling, if that's what we did, was anything but a surrender to political pressures or new members, and that is an unjustified repudiation of principles on which the court stakes its authority. Dad, I want your reaction to that. Taking a shot at new members of the court as if they don't have their own brain and their own opinion on this and they're not bound by the justices who are no longer with us.

Yeah, no, they are. I mean, Justice Breyer, who I've been, I've appeared before for three decades. And Jordan, you've met Justice Breyer.

We have a good relationship with him. He's cited our brief before. So, but he made a speech. That wasn't a question.

I'm going to go to Professor Hutchinson on this in a moment. I mean, that was a speech. And that was a speech, in my view, a speech of desperation, a speech that was saying, I'm not going to win this. So in a legal, logical argument. So what I'm going to do instead is make a political statement.

Harry, that's how I read it. I think your analysis is spot on. Essentially, Justice Breyer was writing his dissent. And I think it's very, very important to examine the whole question of viability and how the Planned Parenthood legal representative handled that particular issue. If you go back to the hearing, Justice Thomas, for instance, referenced an important South Carolina case, which goes to the viability line. He noted that in South Carolina, they are allowed to prosecute a mother before viability is attained if the mother ingests copious amounts of a controlled substance, a drug, which threatens the life of the child. So that clearly indicates that the state has an interest in the life of the child, and that has to be balanced against the autonomy interest of the mother. And clearly, I think Planned Parenthood had difficulty with that particular question, which undercuts the whole viability line that Planned Parenthood continues to support.

You have to balance two competing interests. Planned Parenthood is unwilling to go there. It basically asserts that the right of abortion is supreme. And that is a concept, in my opinion, that's foreign to our law. Jordan, I know we're tight on time here, but I wanted to go to Cece because one of the things Cece I saw was that, in fact, the fetal life issue came up a lot with the justices' questions, the unborn child's distinct life. Yes, because the other side totally ignores that. They only talk about the woman and the woman's right and the burden on the woman, and they completely ignore that you are killing a baby. And so that was brought to light several times, is we're completely forgetting about the interest and the right to life of the baby. And I think that was very important, that this is not just about whether a mom doesn't really want to have the burden of parenting and make some social choice. We are killing the life of a baby, and that interest must be weighed.

All right, folks, when we come back, we're going to start taking your phone calls to 1-800-684-31. Tim will play more from the oral argument specifically twice. So it was Justice Breyer, then Justice Sotomayor, who took this shot at the idea, well, just because there's a new court shouldn't have any impact.

Well, of course it does. And legislators are going to look at that, and everybody's going to look at that. That's why the court took the case. That's why this case hasn't been taken in the last 30 years, it was taken this year. There's been changes on the court. So again, our briefs are up all at ACLJ.org.

Again, three briefs filed, all addressing different issues. That's at ACLJ.org. We're going to take your phone calls to 1-800-684-31.

Tim, share it with your friends and family. We'll be right back. 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, the 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. 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. There will be a lot of different reactions, and again, all of this, I always say, just right off the bat, again, don't take too much from just single questions and try to add it up. You've got to, again, take it all, kind of the briefing that went in, but because these oral arguments are much longer than they were in the past, and longer questions, I want to go right to a question. It was Justice Alito, and it was about the interest in the life of a child.

Take a listen, Bite 68. The fetus has an interest in having a life, and that doesn't change, does it, from the point before viability to the point after viability? In some people's view, it doesn't, Your Honor, but what the court said is that those philosophical differences couldn't be resolved in a way... That's what I'm getting at. What is the philosophical argument, the secular philosophical argument for saying this is the appropriate line? And, Dad, this was, I think, a direct response because Justice Sotomayor earlier had said the only real interest here in putting restrictions on abortion are religious.

And the only person who brought that up is the left, her. I don't think the other attorneys tried to bring that up because they know that that's not where you want to go. But that's still how they see this, trying to downplay medical, trying to, they always try to play, they're playing doctor, they're playing scientist, instead of being a justice. Well, they don't want to talk about the medical science because that certainly doesn't support their argument. I mean, that doesn't work for them.

So what do they do instead? Well, they say, okay, well, we're not going to do medical science, this is all about religion, and we're going to make this a religious argument. And the question, of course, first of all, that's A, irrelevant to the constitutionality. Let's say there are religious and philosophical reasons.

Well, that's fine. There's also constitutional reasons. But they did raise the issue, and they talked about the viability and value, not just viability, but the value of the fetus, the unborn child's life. And I was going to go to Wes on this, and that moral issue came up in an interesting way when one of the justices, it may have been Justice Alito, it may have been Justice Roberts, asking about secular philosophers.

We heard a little bit of that in the last question. Secular philosophers and non-religious people that maintain a pro-life position. Yeah, I thought that was one of the most interesting parts of the arguments today. You know, this is the most significant and consequential case for the Supreme Court, I think, in my lifetime, because it is not about religion. It's about morality. It's about the sacredness of human life. And in a new way, you can say that life and liberty is being talked about, not just the life and liberty of the mother, but the life and liberty of this child that she's carrying. And I thought it's interesting in what you reference there, Jay, because when they started talking about viability in this context, and the secular versus the religious, it was Justice Sotomayor who started downplaying, actually, the science that talks about the ability of this child to feel pain, about a heartbeat, about the physical development of the human being in the womb, because those things don't support their argument.

She immediately starts questioning the science behind those. I think it's because they realize they may be losing this argument, as they should. And as Harry said, I think people like her are actually writing their dissent.

I hope so. Yeah, well, I think, you know, you never judge by an oral argument. Let me just say that, folks, because you just don't know. But it was very interesting to me that the fetal pain issue came up, because I've actually deposed doctors on this and have used experts on this. And the medical science, when they do surgery in utero, they give anesthetic to the child.

Why? Because the child has the ability to feel pain. And by the way, that in and of itself, I think is an important fact, but it is not the sole determinative fact, but I thought it was interesting to see the court kind of trajectory, at least where they were going on this whole issue of the importance of the life of the child.

Yeah. And fetal pain totally points to the humanity of the child, which is something that, of course, the left doesn't want to talk about. They want to call it a fetus, a clump of cells, and take out the humanity. When you talk about a heartbeat, when you talk about the ability for a baby to feel pain, then all of a sudden you realize, okay, that is a human being and the right to life does attach to that human being.

And that's a point that the left can't have survive. And so it was interesting that Justice Sotomayor went after the fact that babies can't feel pain at the time, where medical science has actually proved it, that she's so desperate that she's going after the science of that. To the point where, let's listen, trying to label it as fridge and outside the norm.

Take a listen by 23. I don't see how that really adds anything to the discussion. That a small fringe of doctors believe that pain could be experienced before a cortex is formed doesn't mean that there's been that much of a difference since Casey. First of all, the small fringe of doctors, George. I mean, look at the derogatory name. But maybe Terry's right there writing their dissent because the vitriol in that statement is really over the top.

That's right. The hostility to just the advocate there and the attorney in the situation of Solicitor General of Mississippi argued that position. But yes, I think those are justices that are known to be playing to the audience. They're playing to MSNBC.

They're bites. But the reaction overall in the media, and again, it's a media reaction, is that the CNN headline. There's not a Fox News headline. The CNN headline is that the Supreme Court looks like it's ready to accept a 15-week abortion ban. So I mean, that's what they're looking at right now. The difference would be is does it go to overturning Roe or not? Those questions that you could get at specifically, I think they could go either way on that as well by still allowing what Mississippi did. I think it's very important to point out that when Mississippi's arguing this, they're not saying that, well, Georgia has to have what we have or Tennessee has to have what we have or New York has to have what we have. It's that it should be up to us as a state. That's what this comes back, and it's very important to understand that if Roe vs. Wade is overturned, it doesn't end the right to abortion in every state.

Some states are going to allow for it. But what is interesting here is they did ask, and I think it may have been Justice Roberts, Chief Justice Roberts, he did ask is there a way to uphold this statute and not overturn Roe. So I return this question back to Cece because we want to see Roe overturned, but this court, they move incrementally, and although I think this is our best chance to see Roe overturned, I'm not going to be surprised if they uphold the statute and don't overturn Roe.

It's very interesting. Again, I don't know how they could do this and not overturn Roe because the issue is can you protect a baby's life before viability? And it's that arbitrary point that has come out of viability that's at issue. So when can we protect a baby's life or when can we ban abortion? And if they say viability is no longer that point, then I think it really does come down to, well, the states need to determine when it's their interest when they are going to protect a baby's life. And is that 15 weeks?

Is that at a heartbeat? And again, that effectively overturns Roe. Yeah, we've seen in the past where the court doesn't want to overturn, but it effectively does overturn the cases. And again, what has to be pointed out is that what Mississippi argues that for our 15 week, we believe that you'd have to overturn Roe versus Wade. And that, again, your state where you live will have the rigorous debate as they do currently to determine what they want to do based on the parameters. And that's what you do with most laws. Most laws are handled at the state level. That's why different states have different rules, different things in place, different criminal conduct, different civil conduct. It's very important, but that's part of our country is this distinction.

We'll be back second half hour coming up. Go to ACLJ.org, get all the information there as well. We'll start taking more of your phone calls, start analyzing for you and your questions.

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. We're talking about freedom. We're talking about freedom. We will fight for the right to live in freedom. Keeping you informed and engaged, now more than ever, this is Sekulow.

And now your host, Jordan Sekulow. As you know, today, if you're just joining us now, the Supreme Court heard it's the first time since 1992, a direct challenge to Roe vs. Wade. It comes out of a Mississippi law. It was the Mississippi Solicitor General who was defeating that law before the U.S. Supreme Court. It's been two years, two and a half years in the making to get to the court, but it's there and it's on the merits. And the oral arguments have been finished.

They finished about five minutes before we went on the air. I think this question from Justice Kavanaugh sums up what's really at issue here. Regardless of what side you're on of this position, on this issue, take a listen by 46. To be clear, you're not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion. As I understand it, correct?

Correct, Your Honor. As I understand it, you're arguing that the Constitution's silent and therefore neutral on the question of abortion. In other words, that the Constitution's neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.

Is that accurate? Right. We're saying it's left to the people, Your Honor. So, Dan, I wanted to go to you on that because I thought it was interesting there that both the state government, but also opening the door even for Congress at the federal level, if they were able to, I think it would be more difficult for Congress at the federal level to ever get to agreement on this. But at the state level, it hasn't been. That's why some states are very pro-life and some states are very pro-abortion. And that's the way the Constitution is set up. I mean, so that these matters go to the states. And we take a pro-life position, so we're going to always advocate for the unborn child. But I will tell you that this idea that the states have no role in this is what's created this political process in the first place.

That's number one. Number two, this attack on the new justices by Justice Breyer and Justice Sotomayor and I think Justice Kagan, too, I think CC shows some real desperation. Now, again, I don't over judge a case by the oral argument because you never know what's going to happen.

But my goodness, it was really not appropriate, in my view, what they were doing there. I think they're like stoking the fire of this is a political decision and it's really what the public demands is they want to keep Roe v. Wade. That's what the public demands. And if the court rules otherwise, who cares if it's based on the Constitution or not? We just need to do what we think is the most popular decision right now. And we're going to, like you said, kind of dog or demean anyone who's saying we're going to actually rely on the Constitution and not care whether it's right or wrong in the public's view.

It's the dogma lives deeply within you. It was repeated by Supreme Court justices. Remember that the outrage at Senator Feinstein from saying that.

I think this was the veiled way of doing the same. And again, this idea that these justices should bow to the political pressure. They should bow to the pressure of the left because, again, they have no opinion here. This is Sotomayor making that same statement by an 18. Fifteen justices over 50 years have or I should say 30 since Casey have reaffirmed that basic viability line.

Four have said no. Two of the members of this court. But 15 justices have said yes of bearing political backgrounds. Now, the sponsors of this bill, the House bill in Mississippi, said we're doing it because we have new justices.

What is wrong with that? Because the state has to assert two things. They pass a law and then when they have to defend the law, it costs state resources. So they're going to analyze is it worth passing this law, not just because we believe in it but can we defend it, and are we willing to use the state's resources, taxpayer dollars, to go through the long legal process to fight this out. So of course you're going to analyze the makeup of the court.

Of course you are. And when we come back from the break, I'm going to go through some of these other cases they got wrong and we'll put some numbers to it. Yeah, okay. So folks, again, we will get to your phone calls. There's a lot to say here. I think we'll be talking about this for the next couple of days to get through because of the two hours of oral argument.

We'll be right back. 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. This is an interesting headline. It's a Daily Mail headline, but it's that liberal justice Sotomayor compared unborn babies to brain dead people.

And she tried to make this argument here. Now, what didn't come up is that, honestly, under U.S. law and state laws right now, for the most part, a dead body has more legal protections than an unborn child. The way you have to handle the body, the rules in place, I mean, it's very serious.

And it should be. But the fact is that a dead body compared to a new life, take a listen. Virtually every state defines a brain death as death. Yet the literature is filled with episodes of people who are completely and utterly brain-dread responding to stimuli. If there is about 40 percent of dead people who, if you touch their feet, the foot will recoil.

There are spontaneous acts by dead brain people. So I don't think that a response to by a fetus necessarily proves that there's a sensation of pain or that there's consciousness. So I go back to my question of what has changed in science to show that the viability line is not a real line, that a fetus cannot survive.

And I think that's what both courts below said, that you had no experts say that there is any viability before 23 to 24 months. And what I'd say is this, Justice Sotomayor, is that the fundamental problem with viability, it's not really something that rests on science so much. It's that viability is not tethered to anything in the Constitution, in history or tradition. It's a quintessentially legislative line.

A legislature could think that viability makes sense as a place to draw the line, but it's quite reasonable for a legislature to draw the line also. Counsel, there's so much that's not in the Constitution. Yeah, I mean, that's wonderful, but there is a lot that is in the Constitution. I mean, one of the justices, I don't know if it was Sotomayor or Kagan trying to bring up the Second Amendment, as if that, again, but that's in the Constitution.

You can argue the parameters of it, but it's there. What Justice Kavanaugh would say is that abortion is not, the word is not used, so you've got to then figure out all these different rights that are guaranteed in the Constitution. Why then go to add to a dead body, that the life is gone, as Justice Sotomayor is saying? I mean, that's the disregard they have for human life. Well, that's the big, I was going to say the same thing, because they have total disregard for human life, or certainly a dim view of what that actually means. So they focus on, this is a religious argument, they focus on dead people's bodies move when they're stimulated for a period of time, and that somehow justifies the taking of an unborn child's life. I mean, think about that for a moment. And then they cited, again, it was Justice Sotomayor who said, oh, 50 justices have heard this, and only four have said such and such that have come out against Roe.

Well, let me give you some numbers, okay? Plessy versus Ferguson, separate but equal for African Americans, black Americans, and white people? Seven justices thought that was a really good decision. Dred Scott, black slaves then freed, so they were freed, they were, this was, of course, in some states they were freed, others they were not. But two-thirds of a person. Seven justices thought that was a really good decision.

Karamatsu, where they took Japanese Americans, these are Americans, and put them in basically camps. Six justices thought that was a great idea. So 20 justices came up between them, and these three cases thought these were really good decisions. So Harry, this number game really doesn't work when the decision's wrong.

Absolutely. And one of the things to keep in mind here is that the right to an abortion is not tethered to any textual basis in the Constitution. And so if you look at those other cases, however wrong they were in terms of a Supreme Court decision, at least you can argue that the Supreme Court, generally speaking with respect to those cases, was arguing over the text of the Constitution. So I think it's incumbent on Justice Sotomayor to find the text within the Constitution in order to support her argument. There is no reason in the world why a state cannot regulate a child in the womb with respect to pre-viability. Pre-viability still provides a basis, in my judgment, for the state to weigh the interest of the child against the interest of the mother. And so if you look at case after case, within the abortion arena, the court basically is basically running around chasing itself in a circle because there's no textual basis for Roe v. Wade or Planned Parenthood v. Casey.

Both of those decisions are simply made up out of whole cloth. I want to go to the phone calls. Let's go to John in Kentucky on Line 1. Hey John, welcome to Secular, you're on the air. Yeah, so real quick, I have two questions. Number one, if she was saying that Roberts was incorrect, and actually he was correct, is there any repercussions for that if she's saying this under oath? Number two, it seems like they're arguing the fact that liberty is the cause for the woman to be getting an abortion. At what point does the child have the same rights that she does, and has that same liberty, and we flip the tables on them and then do force all states to recognize liberty?

Let me jump in right here, because you're complaining a couple things here, I appreciate the call. Number one, justices can disagree with each other, there's no penalty for disagreeing with each other. Number two, this is a question of the unborn child's rights of protection here as well. You know, it's interesting, Cece, because this Mississippi law is not a total ban on abortion.

Right, and that's the issue that needs to be addressed, is there are competing interests. You have the life of the baby, and that seems to be the interest that Roe v. Wade forgets that we've forgotten for all these years. The life of the baby needs to be protected, and that is a competing interest with whatever liberty interest a woman may have. The liberty interest, this fabricated right that the court created, the right to abortion, that doesn't get to trump the right to life of the baby. And that's what I think, again, the left didn't want us to address, because they don't want to humanize the baby in the womb, but the baby has a right that needs to be protected.

Justice Thomas addressed it specifically about the South Carolina law, take a listen by 55. Some years after we decided, Cece, we had a case out of South Carolina, I believe, involved a woman who had been convicted of criminal child neglect, because she ingested cocaine during pregnancy. And her case was post viability, so it doesn't fit in the facts of this case. If she had ingested cocaine pre viability, and had the same negative consequences to her child, do you think the state had an interest in enforcing that law against her? The state may have, your honor, the state can certainly regulate to serve its interests and fetal life, and in women's health, those particular laws tend to undermine both of those interests. So that's what they're talking about, they got the attorney for the Center for Reproductive Rights to get to some point where they had to acknowledge that there was an interest in the child's life.

Yeah, exactly. Which they don't actually believe. Of course they don't, that's exactly what I was going to say. Because they don't believe that viability has anything to do with any of this. This just happens to be a convenient way for them to proceed under the light of this case. But do they believe that the life of the child could be protected at say the 24th week of this? And the answer is no.

And you know what? I don't think, Wes, there's anything wrong with having moral and philosophical reasons to oppose taking of somebody's life. Absolutely. I mean, that is what the laws of our country are about frequently. The sacredness of life, the sacredness of liberty, and all of those things. And what this argument is making is that the child has those same rights, same liberty. And you know, I thought it was interesting though, he did get her to admit that the state has some prerogative in this, which is the point that they are making in this argument, partly before the Supreme Court. And that is this matter should be left to the states, that it should go back to the states. And of course, those on the left, the states implies taking the matter back to the people. And there's a basic distrust of the people on the left.

They do not want the states and the people to make the decision regarding this. Let me say thank you to everyone who has participated in our November matching challenge and support the work of the ACLJ financially. You can do so today at ACLJ.org. And again, in this case, three briefs specifically dealing with all the different issues that were addressed in this almost two hours of oral argument filed by the ACLJ and our affiliates. Support our work at ACLJ.org if you can financially. All these battles we are engaged in. That's ACLJ.org.

We'll be back to take more of your phone calls. We've partnered 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.

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Give a gift today online at ACLJ.org. This is at the important place. This is the attorney for the Center for Reproductive Rights. It's like the legal arm of the abortion industry.

Remember, that is really what this ultimately is about. Money. It's a money-making industry.

A billion dollars a year, Planned Parenthood alone. They're not the only player. They're the biggest player in this world. This is big business. Big lobbying, huge political contributions, big PACs.

They are major players on all these different levels. It's almost like going up against big oil or something like that when you're taking on these cases. That's why they will start making all these. I think abortion distortion is perfectly on display because the attorney for the Center for Reproductive Rights went through this viability. These same attorneys would then go and challenge a ban on partial birth abortion. So on abortion at eight months, they would argue viability. This is a made-up, again, more of the abortion distortion. Take a listen.

Bite 75. I would say that the states can certainly regulate throughout pregnancy, both before and after viability, to preserve fetal life and to preserve the women's health. The court has said, however, there are other constitutional issues at stake. For instance, in the Ferguson case, that states still can't violate women's Fourth Amendment rights. But again, that's not what this case is about.

If you allow that right there, aren't you giving the 50-week, if you can say the states can do it, but they can't do it this way, what other way? They won't answer that because they really don't believe it. What you just said is really important.

I hope we clip that out and use that in our social media platforms to get that out because what you just said, Jordan, is really the truth. They don't believe that viability is a factor. They don't think that the fact that the unborn child is more viable at 21 weeks than at 15 weeks makes any difference. Because these are the same lawyers that say a nine-month-old baby in utero, in other words, nine months in development, during the course of delivery could be terminated.

So, Cece, I go back to you on this. They don't believe this viability argument that they're now even putting forward. They themselves don't believe it. And I think that that shows that they see the writing on the wall. So, they're saying, okay, you know, we're probably going to lose on this, but what we can now argue is at least viability so that we don't just keep going back and back and end up at a heartbeat or protecting a baby from conception.

So, you know, I think that really that argument shows they know that they're losing, but exactly. They don't care about the life of a baby. They don't care about viability. They don't care about the life of a woman.

They care about money and doing abortion is money for them. Let's go to Scott in New York online too. Hey, Scott, welcome to Secular. You're on the air. Hey, thank you for taking my call. I appreciate it.

I also appreciate you guys and I do support you and encourage everyone who's listening to support you. I am a physician. I'm an anesthesiologist here up in New York and one of the questions that has always entered my mind was the comment of viability. And this is a rhetorical question, but if I were to take any of you and put you in minus 20 degree weather and not give you any protection, guess what? You're not going to last very long in there.

It has to do with what mill you, what atmosphere, everything surrounding you. It's the same thing for this little fetus. You take it out of the womb. Guess what? It's going to die. You take a brand new baby out of the womb and you don't feed it and take care of it and keep it warm. Guess what?

It's going to die. So it's really, uh, that really just bothers me and I just wanted to present that argument. I appreciate you calling it Scott as a, as a, this is why this idea, this viability argument, uh, it's all, it's all contextual based off all these different factors. And that is the point that this, this should go to the States and then that wouldn't go, if, if it does in fact go to the States, groups like the ACLJ and other pro-life organizations will then be able to specifically go into state by state, advocate the position, uh, and, and, and have the, have the, have the debate and not have to then have the debate only in the idea of theoretically, but in actually passing laws.

You're a hundred percent correct. And this is, this is the problem with the whole thing. And I mean, and to me it's the problem with the whole thing that we don't get to have that debate now because of the way in which the courts have interpreted and the Supreme Court included is, is authorized Roe versus Wade. So to me, the question is going to become here, I'm seeing all these headlines that say, uh, you know, the law may be upheld, but I'm not seeing in these headlines Roe versus Wade is likely to be overturned. So I'm, I'm just wondering if they're going to try to nuance this.

I, I, Harry, what do you think about that? Well, I think if, uh, Justice Roberts writes the opinion, I think you are absolutely right. And so there is a way of upholding the Mississippi law without necessarily directly overruling Roe v. Wade. So for instance, you could, uh, basically allow states to regulate abortion pre viability when they can demonstrate a compelling state interest in the life of the child. Now, effectively that means, at least in my opinion, that Roe v. Wade is overruled, but then the court could basically suggest that, no, we're not overruling Roe v. Wade, but yes, the state of Mississippi or the state of Alabama or some other state, uh, could, uh, intervene. That, uh, view I think is very, very consistent with Justice Thomas's question concerning, uh, South Carolina. South Carolina had the right to intervene pre viability with respect to a child when and if the mother ingested copious amounts of drugs. That is certainly a hypothetical question that he posed, but even Planned Parenthood essentially conceded that particular point.

So if South Carolina can intervene pre viability, I don't know why any other state, uh, couldn't do the same thing. All right, let's take a final call of the day. Lisa in Wisconsin on line three. Hey Lisa, welcome to Secular, you're on the air.

Thank you, I've been fervently praying for you. Um, regarding the justices being perceived today as being political, one could argue that back when Casey and Roe were decided that they were legislating from the bench and were being political then. So to alleviate their mind, um, I, in my view, at least it seems that they would be setting things right as the founding fathers originally intended.

Yes. Oh, I would say this, just basically the most political members of the Supreme Court are the liberal justices. They always have been. They're easily predictable because they're like politicians. You can predict exactly what they're going to do because it's like they run on it, uh, to get their jobs. The least predictable are the conservative justices because they come with a philosophy, but not ultimately where that philosophy will take them every time.

So that one, you could have, you could share a philosophy, but still get to a different opinion. And dad, I think that this is always them trying to act like they are somehow above politics as if anybody in the country whose job is based on getting appointed by a politician is going to be above politics. No, you're exactly correct. And as you said early in the broadcast, they are nominated by Presidents who are elected. They are confirmed by senators who are elected. So to say that the judicial determinations are not supposed to be a political process, but their appointments are. And the fact that they, these justices were being, or some justices were attacking the new members of the court to me shows you how desperate they were. I think this is going to be a big win. I don't know how, what the parameters of that decision, but I'm optimistic there'll be more on this tomorrow.

All right, folks. And we'll continue that analysis and always go to ACLJ.org as well. Our social media pages share the broadcast where we continue to share the broadcast so people can get this analysis and your friends and family get the analysis. Go to ACLJ.org. You can support our work as well financially. That's ACLJ.org.

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