The Comedy Cellar: Live from the Table - Roe v. Wade with Alan Dershowitz

Episode Date: May 13, 2022

Noam Dworman, Dan Naturman and Periel Aschenbrand discuss abortion and the overtuning on Roe v. Wade with famed attorney, author and Professor at Harvard Law school for fifty years, Alan Dershowitz. 

this is live from the table recorded at the world famous comedy cellar coming at you on Sirius XM 99 Raw Dog and on the Laugh Button Podcast Network. Dan Natterman here with Noam Dorman, owner of the world famous comedy cellar. Perrielle is late in transit. She will be here. And we have with us once again a regular guest here. I don't know if he likes us or if he's just. I hope he likes us. He just says yes to everybody.

But Alan Dershowitz is once again joining us. Professor Amin. I like you. I like you because you're funny and I like to laugh. And I like to be laughed at or laughed with. So I'm with you guys. Okay. I don't know how funny today's discussion is going to be.

You might have guessed what we're going to discuss. What's in the news. What everybody's discussing. The fall of Roe v. Wade. That's an assumption. But yeah, the apparent fall of Roe v. Wade. We're going to discuss what's in the news, what everybody's discussing, the fall of Roe v. Wade. That's an assumption. But yeah, the apparent fall of Roe v. Wade. The likely fall of Roe v. Wade, if Professor Dershowitz is correct, because I believe you said on your show that you think it likely that it will fall. It will fall. If it doesn't fall this year, it'll fall next year. It shouldn't fall this year because the case is not presented to the Supreme Court

about Roe versus Wade. The only issue that's presented to the Supreme Court this year is whether or not Mississippi's 15-week restriction on abortion should be upheld. And you can't Mississippi without overruling Roe versus Wade completely. And so unless you're going to be a judicial activist or somebody who reaches out to decide issues not presented to the court, you don't even have to decide the issue of Roe versus Wade. But you know why they're going to decide the issue of Roe versus Wade? For the same reason that dogs lick their testicles, because they can, because they can. They have the votes. They have five votes because they can. And that's been the key to this Supreme Court and to policy. How did the Congress refuse to even give hearings to Merrick Garland? Because they can. Because they can. That's the only criteria. I have a new book coming out called The Price of Principle, in which I try to get back to some degree of principle, but nobody cares about principle anymore because they can. That's the answer, because they can. That sounds like a title for

a new book, because they can. It is. It's a title of an old joke in a new book. All right, so a few questions about Roe versus Wade. First of all, initially, do you think it was rightly decided initially? a constitutional justification for an outright right to choice imposition on all the states. I did say I thought that that trend was going to continue. I strongly support a woman's right to have an abortion. I strongly support it. But I think it would have been better if the states passed it state by state. That would have ended up with a few states not passing it. But look, Ireland now, a woman can choose abortion. Italy, a woman can choose abortion. The only countries that are left are some South American countries, basically, and parts of the United States. So, you know, I had my doubts about it back in 1973. I said in 1980 that I thought it was the greatest gift to the extremists that that in the end had Roe versus Wade decided by the court.

The Democrats would have used that to gain more and more votes, particularly from suburban women who didn't want their children subjected to back alley abortions. But that ship has left. It's 50 years old. And there's no reason to overrule Roe versus Wade, particularly when there's no case in front of it that requires its overruling. And nothing has changed except they can. They have the vote. So I'm very much opposed to overruling Roe versus Wade

by the Supreme Court today. By the way, Perry Ellis here now. So what would they do? They would shave back the protection of Roe versus Wade or Casey by back to 15 weeks if they wanted to uphold the Mississippi law? Yeah, but then probably in a year or two, a case would come up from one of the states that banned abortion completely, and then they'd have

to decide it. So it's only a matter of postponing it. But if the court weren't so anxious to achieve the political result, which President Trump promised to achieve, getting Roe versus Wade overruled, I don't think they'd be reaching out and deciding it. They'd be going along with Justice, who is clearly going to write an opinion upholding the Mississippi statute but not reaching Roe versus Wade. And the real question is whether he can get Kavanaugh to come with him. And it was a real question prior to the leak. And the real, the new question is whether the leak will affect Roberts' ability to get Kavanaugh to come with him. Will Kavanaugh say, oh, gee, I'm not going to change my vote now that it's been leaked? Or will he say, I'm so mad that it's been leaked that I'm going to change my vote. There we'll get psychology of justices. And I don't think we know the answer. But I think there's one important point that has to be made. Look,

I strongly support a woman's right to have an abortion. But I do not believe in the slogan, my body, my choice. That's a good slogan for gay rights. That's a good slogan for anti, for laws that used to prohibit Black people from marrying white people. My body, my choice. Being gay is a choice that nobody should care about except the people who are engaged. Abortion is different. Whatever you believe about abortion, in three months and four months and five months and six months, something else is at stake. There is a fetus. There's no fetus in gay rights. There's no fetus when it comes to Black people marrying gay people. There is a fetus when it comes to

the issue of abortion. And therefore, it's not right to say, my body, my choice. You can say, my body, my choice, not to get an inoculation against contagious disease. If they invented a new inoculation that would prevent heart attacks and strokes, everybody should have the right not to take it. And they could say, my body, my choice. But when you go into a crowded area, you can't smoke and say, my body, my choice. You might have a constitutional right to inhale, but you have no constitutional right to exhale at me. And you have no constitutional right necessarily to refuse an inoculation that causes, that could help the spread of disease to other people. So we really have to distinguish cases where only the person itself is involved or other consenting people. And that's the case with pornography. That's the case with homosexuality.

That's the case with interracial marriage. It is not the case with abortion. And therefore, the arguments for a woman's right to choose abortion have to be more powerful than the cliche and the slogan, my body, my choice. Do you think that my body, my choice is a constitutional right? If somebody brought that up, say the right to the right to have a physician. Prostitution. Prostitution. Well, you know, you could say prostitution has impacts on other people in society. But yeah, but let's get the clearest case, the right to masturbate. That's my body, my choice. And is it constitutionally protected or could a case?

I do think so. I think so. I think that you can find in the Fourth Amendment. Fourth Amendment says the right of the people to be secure in their, and then it goes on to list a bunch of things, including their persons. And there was no word privacy in 1793. It's an invented word that came up in the 19th century. The word was security. And the right, the security of the person meant privacy. And so I think you can read the Fourth Amendment, the right of the person to be secure as implying, even more than implying, as setting out a constitutional right, as long as it's John Stuart Mill's notion that the government has the right only to control people's impact on other people. It can't tell you to do your own good. It can't say unless, you know, you should do this, otherwise you'll go to hell. Or you should do this, otherwise you'll become a degenerate.

Or you should do this. That's not the proper role of government. President Dershowitz, can I ask you a question? We have legal definitions of death and of heartbeat and of neural activity. They can measure, they think when it is that a fetus can feel pain, which amazingly I've been reading maybe as early as 12 weeks. Is there some period, for instance, if they wanted to punish the destruction of a

blastula as a capital crime, is there some extreme law which you would say, no, no, this is a religious law. This is no longer scientific. This is the establishment of a religious precept in the law. And for that reason, it would be disqualified. Yeah. I mean, for example, the Catholic law and Jewish law are diametrically opposed. Under Jewish law, in order to save the life of the mother, you can, and this is literally from the Talmud, you can cut up the baby while it's in the mother's womb, the head is not out yet because the mother's life is to be preferred over the non-living being until the head is out. I mean, that's Jewish law. Catholic law, the person is alive and has a soul from the moment of conception. And it's not the government's role

to choose between religions or among religions. Look, you can be an atheist and be opposed to abortion. My friend, Nat Hentoff, the late Nat Hentoff, a great, great constitutional scholar and advocate, was strongly opposed to abortion most of the time in most situations. He didn't believe in God or in organized religion of any way. So, but he thought that allowing abortion is a step toward allowing the killing of human beings. So he was opposed to it on moral and principled grounds, but not religious grounds. But look, the important point I want to make is that the issue of abortion is difficult. It's not easy. It's not like gay marriage. You know, I'll tell you a story. So I was speaking in front of an Orthodox synagogue in Miami Beach a few years ago, and I advocated gay men was just at about the time the Supreme Court wrote its decision. And a very Orthodox woman stood up and really started yelling at me and screaming at me.

She said, I get very upset and very disgusted when I think about two men in bed together. So I stopped and I said, I want to ask you a very simple question, ma'am. You're married, right? Yeah. When you have sex with your husband, are you on top or on bottom? She guessed. She said, what are you crazy? I can't answer. I won't answer that question. That's my right of privacy. I said, aha, I have no business asking you whether you're on top or on bottom. You have no business asking a man whether he's going to have sex with another man or another woman. And everybody in the audience clapped me, even though it was an Orthodox, an Orthodox synagogue. They all understood it's none of our business what people do in bed or who they marry, what the race of the

person they marry, what the gender of the person they marry. You cannot say that about second and third trimester abortion. Whatever you think, whether you believe there's a heartbeat, whether you believe there's pain, reasonable people could disagree about those things. There's something. There's nothing when it comes to gay marriage and when it comes to interracial marriage. Nothing. There's no countervailing consideration. But when it comes to abortion, there's something. So what I'm trying to get at is, you know, there's this like, what's it called, the continuum fallacy where, you know, when you have something which is along a continuum, it's very difficult to split it into parts. However, a cold day is different than a hot day. And it's kind of this transgressive example I always give you. If you show me a little baby

girl, an infant girl in a diaper, sucking a pacifier in a diaper commercial, that's innocent. You show me the same girl every day as she grows up. Sooner or later, it becomes pornography. I can't tell you exactly when it happens, but don't try to tell me that the baby is pornography or that the grown woman is just an infant. I'm wondering if there is some early part of this abortion question, which is just not plausible to call it anything but religious. And if so, wouldn't that then allow the woman's right to privacy be protected in that period where no reasonable person could say you could like Nat Hentoff can believe it all he wants, but it's just a philosophy. It's no, I, I, I completely agree with you. And the Supreme court held that in

Griswold versus Connecticut. Remember, the Catholic Church in Connecticut was opposed to birth control. And when I was a student at Yale Law School, a birth control clinic opened up in Connecticut, and it was banned. And they were threatening to put people in jail, husbands and wives, married couples for using birth control. The Supreme Court threw that out in a case called Griswold v. Connecticut, basically saying it's not a religion, and the right of privacy obviously trumps that. Now, I think the same thing is true of very early stage abortion. For example, abortions that can terminate pregnancy with a pill, There should be no recognition that there's a third person involved in that. But, you know, once we get beyond into the second trimester, it becomes a little different. I'm not saying legally, constitutionally. I'm just saying as a human

being, I consider it different. And I am more Trump. If I had a close relative or my wife who was in her second trimester with my with my child, I would regard that as a very, very difficult choice. On the other hand, if somebody in my family said I'm gay, you know, go ahead. But, you know, that's your life. I'm not going to interfere with your happiness in your life. Not not nobody else is involved in that. Yeah. As a grandparent, that may deny me the right to a biological grandchild, but I don't have any right to that. So I make a sharp distinction between abortion. I mean, real abortion, second and third trimester abortion, and these other rights that people are afraid are going to be taken away. I don't think they're

going to be taken away. I can't imagine any Supreme Court saying a black man can't marry a white woman. I don't even imagine a Supreme Court today saying that a gay man can't marry another gay man. That's possible. I think it's very unlikely. So then you could see a Supreme Court decision that did find a constitutional protection for a woman's right to abortion in the first trimester or prior to certain measurable scientific markers based on the fact that it would be an establishment of religion and therefore a violation of privacy. Yeah, no, I think so. I think when you combine it, the combination of an establishment of religion and the right of privacy together, you get a pretty strong case for early term abortion.

It becomes harder as you move further down the line. And that's why the Supreme Court in Casey chopped down a little off-row. And if Justice Roberts were to get his way in the Mississippi case, it would chop even more off-row, but it wouldn't, a woman's right to have an abortion, it wouldn't criminalize it, it wouldn't make pills impossible, and I think that the evangelical right is overplaying its hand when they start arguing, oh, we're now going to make it a crime for a woman from Texas to travel to California to get an abortion, or we're going to make it a crime for a company, a pharmaceutical company in California to send a pill to Texas. I don't think the courts are going to sustain any of those. And I think that the evangelical

right, by pushing for some of them, by pushing for that, are overplaying their hand. Do you think that when an if-row falls, there will be any states that ban abortion outright from conception onwards? And which states would do that? Well, I mean, Oklahoma is coming close. I think Mississippi. There will be a number of states that will try to do that. Will they really do it in practice when the first young woman dies in a back alley abortion? Will it politically work? I don't know. But they'll try it. There's no, in some states will abolish abortion completely and try to criminalize it and try to go as far as they think they possibly can.

And remember, too, we still have the democratic process at work. Congress can pass a law. Would it be constitutional? I'd be up to the court, but could pass a law either way. They could pass a law prohibiting any state from restricting abortions, but they could conceivably pass a law prohibiting all abortions. So Congress has a lot of power subject, obviously, to review. As a pro-choice person, do you see any possible good coming out of Roe being overturned? First of all, I don't call myself a pro-choice person. I don't like the word choice. I call myself a pro-abortion person. I'm prepared to allow a woman to have an abortion. Choice, I'm pro-choice when it comes to marriage. That's where I'm pro-choice. Abortion is more complicated than just choice. But I do think politically the Democrats will benefit in states like Michigan and Pennsylvania,

where suburban moderate voters, libertarian voters, suburban women voters, if they say, oh, my God, my daughter is right to get an abortion, may turn on who I vote for. I'm voting Democrat. I think that could happen. Well, I think it would be smart if the court, can't you get a message to these guys, Alan, to look at this combination of establishment clause and the right to privacy and science? It seems like such a good compromise and it would take the wind out of the sails. Yeah, I'll just call my buddies on the court and see if they'll take my call. I'll call collect. Maybe they'll even pay for it. Look, I have friends on the court. Obviously, Elaine Kagan was my student. Steve

Breyer was my colleague. And we clerked for the same justice. I know most of the other justices on the Supreme Court, but you don't pick up the phone and call. You write briefs. That's how you communicate with judges. Oh, you write op-eds. And I've written this as an op-ed. And if they want to read it, they can. I can't make them act on it. Because I was reading today about organoids, where organoids are there where they're growing organs in vitro now. It's a nascent technology, but sooner or later they can be able to grow hearts and brain matter. And nobody considers these things human lives, even though they're living and they're parts of humans. And I think it's an interesting thing to keep in mind when people try to make the case that a 16 or 32 cell ball of cells is a human life. It's not a human life by any definition that science could

generate. And I really think that's the answer. That's the direction the court should go. And I just want to add one other thing. This pain thing is fascinating to me because at the point where the fetus can feel pain, and I will ask Perrielle to think about this, then only a barbarian would not require that the fetus be given some kind of anesthetic. You can't have a painful abortion and not care about it. But as soon as you give the fetus an anesthetic, it becomes impossible to say, well, this fetus is not a person. At the point where you're giving something an anesthetic because it's independently feeling pain through a nervous system independent of the mother, I think common sense creates a

rebuttable presumption that this is a life that the state can protect. But prior to any of those markers, I feel like this is just religious. And in that case, well, first of all, this is a court that's very sympathetic to religion. This is a court that contains a number of quite religious people who are prepared to undo years of separation of church and state under the First Amendment and particularly who favor the free exercise clause over the establishment clause. So just because you say it's religion doesn't solve the problem for the Supreme Court. It may solve it for you and me, but it doesn't solve it for the Supreme Court. But then at least it kicks in, what is it, intermediate scrutiny and the right to privacy, and it actually upholds the right to privacy by deciding that way rather than threatening future. Yeah, no, I agree with that. But just by invoking religion, it doesn't move the ball sufficiently. Just a word, if we could, on precedent. Now, usually when the Supreme

Court decides something, that's the law and it stays that way. But sometimes, like the most famous case is Brown versus Board of Education. In the 19th century, the Supreme Court decided that separate but equal was the standard. And then in Brown versus Board, they threw it out and said no separate is inherently unequal. That's, I guess, the most famous case of an overturning of a precedent. And we might- Well, there have been many such cases, but in every case,

there have been changes of circumstances. They didn't overrule it just because they had the votes. There's been no change of circumstances in Roe versus Wade, in Plessy versus Ferguson. There was a change in circumstance. We have all kinds of empirical data that separate creates inequality, particularly with a legacy of slavery. You

couldn't have separate but equal. We saw change in patterns of acceptance of interracial marriage, and the acceptance of gay marriage, and the normalization of gay marriage. We saw lots of changes occurring, and they justified changes in the law. But with Roe versus Wade, it's the testicles in the dog again. It's just they can, so they do. Nothing changed. They just got enough votes, if not for the fact that the Republicans stole the seat, the Merrick Garland seat from the Democrats, from Barack Obama, if not for that theft, unconstitutional, illegal theft, they wouldn't have the votes. So, you know, I think it's in the end a corrupt decision because the process was corrupted by the theft of that seat from Barack Obama to Trump. Two things. I would argue if I could universalize my own change of heart about these things, there is some change of circumstance, only in that in the 70s,

they didn't really know what it was they were talking about. When I saw my son's ultrasound at 12 or 13 weeks or whatever it is, and he was sucking his thumb and doing flips. And I thought to myself, this is not what they told me. They told me this was supposed to be some kind of clump of cells. You can't, you know, that kind of ubiquity of ultrasound imagery I think has changed a lot of people's perception of what it was that Black men was talking about. Is that? But it changes it in the different direction. What you're saying is

the Supreme Court is now going to set back Roe versus Wade. Nothing has happened that would justify that setback, except for the fact that they now have the votes. You know, when almost every rule something, they overruled it to give people more rights. In abortion, they're taking away rights. Now, of course, the pro-life people are going to say, no, we're giving rights. We're giving rights that we never had given before to fetuses. So, you know, there's no way of winning that argument. I'll tell you what hasn't changed, though. The number of people who support early, mid, and late-term abortions hasn't changed dramatically since 1973. You know, with Brown

versus supportive education, after a few years of difficulty, everybody said you got to have schools, you got to have integrated schools. Today, there aren't that many people who oppose gay marriage. But on abortion, you still have a very significant number of people, not a majority, but a significant number of people who believe the fetus is life. And now, you know, the next fight that's going to be fought is there are going to be some who say, yeah, it shouldn't be left to the states. We agree with the other side. It shouldn't be left to the states. It's unconstitutional to allow abortion, they're going to say. It's not up to the states. States can't because the Constitution has the right to life in it. Now, right to life is not in the Constitution. It's not in the Bill of Rights. It's in the Declaration of Independence,

which is not a legal document. It's a lawless document, a revolutionary document, a treasonous document. I have it hanging on my wall, Declaration of Independence, to remind me that our country was born in lawlessness. Had we lost the Revolutionary War, Franklin, Jefferson, Hamilton, Madison, Washington would have been hanged for treason. It wasn't a lawful statement, the Declaration of Independence. It was a lawless statement in God. And then they write the Constitution, the godless Constitution, because once you have a revolution, the conservatives take over and you want to have a stable government with a division of power.

So you write a Constitution of strength, not of rights. And that's the history that we've gone through. Do you think Gorsuch would have been approved if McConnell had allowed it to come to a vote? I mean, Garland would have been approved if McConnell had come to vote? I don't know about that. It would have been a hard question. I'll tell you what I would have done if I were President Obama. And people think that it's nuts, but I think it's right. I would have announced you have 30 days to have an up and down vote on Garland. The Constitution says the president shall nominate and by and with the consent of the Senate appoint.

So if you want to consent, if you want to not consent, that's your power. But you have no power under the Constitution to deny me the power to nominate. So I'm nominating. You have 30 days up and down vote. If you don't vote in 30 days, I'm nominating him. He's going to put on his robes. He's going to go to the Supreme Court and he's going to take his oath. And if that had occurred, I agree with that. Can I have a word about George Carlin, the George Carlin? Sure. Just to bring it to comedy a little bit. Many people have made this

point, but probably most famously was made by George Carlin. And it's become a meme that people have been posting all over the Internet. George Carlin said pro-life conservatives are obsessed with the fetus from conception to nine months after that. They don't want to know about you. They don't want to hear from you. No, nothing to hear from you no nothing no neonatal care no daycare no welfare no nothing if you're pre-born you're fine if you're preschool you're fucked so that's a common sense that's a common sentiment carlin was one of carlin was one of the greatest philosophers of the 20th century called himself a comedian and i loved him and I laughed a lot. But boy, when you listen to what Carlin said, he was a man of such vision. And that that riff was then borrowed by Barney Frank, who said on the floor of Congress that the people care about life only before birth. But don't give a damn about it from the minute of birth on.

And there's a lot of truth to that as well. But not for everybody. A judge like Barrett, she cares about life after birth. She adopted kids. She will give money for adoption of kids. So although Carlin made a good point about many people, you can't put down all right to life. Some of them really do deeply care about life and care about life after birth as well. So, yeah, two cheers for Carlin comedy, but one cheer left for reality. And that is there are good people in the right to life movement. Right. But the system isn't set up to support women after that fact. I mean, that well may be the case. And I'm sure you're right in that. That's true that some right to lifers do

care deeply about life. But the system certainly state by state, if you break it down, is not set up to support poor, disenfranchised women, women of color who will be forced to give birth. They don't have daycare. They don't have daycare. They don't have health care. I agree with you. And if you look at the states and divide them, the states that give the woman the right to have abortions also provide much more care for children after birth. And the states that are denying a woman the right are the ones who don't give much care after birth. So I agree with you 100%. As a matter of practice, a matter of state by state,

you're completely correct. Thank you. That's a statement that Noam Dorman has never uttered, by the way. That Periel is completely correct. Maybe correct, certainly not completely correct. I'll tell you, in 50 years of teaching at Harvard, I never had a student who I ever said gave a correct answer. In class, every answer was wrong and it gave rise to more debate and more discussion.

But in the comedy cell, you can be right. So before we let you go, any any revised opinions on Ukraine now that the worst has happened? Last time we spoke to you, it wasn't clear where this was all going to go. Well, it's a terrible thing, but let's not erase history. Let's remember that on this anniversary of the Soviet win

over Nazi Germany that Ukrainians were divided during the Second World War. Many of them were pro-Nazi. Some of them were pro-Soviet. Ukraine has a terrible history of anti-Semitism. And that the brigade that's now. Jefferson owned slaves, but was a great man. Zelensky is a great president, but he allows a brigade wearing Nazi symbols. There are no perfect people. There are imperfect people, and there are perfectly horrible people, but there are no perfectly good people.

Let me just end with one more point. Is the guy or the woman who leaked the Supreme Court opinion by Alito a villain or a hero? I think a villain, but there will be some who, depending on which side the person was and what the goals were, who will regard that person as a hero. Can I add to that? What's killing me is these people who are so concerned about January 6th can't bring themselves to say a bad word about people going to Supreme Court's houses and protesting and intimidating. I'm throwing a Molotov cocktail into a pro-life. No, I agree with you.

The same rules have to apply. If people break into the Supreme Court or try to break into the Supreme Court, there has to be exactly the same law enforcement response as if people tried to break into the House. Now, I have to disclose I'm representing one of the young men who walked into the Capitol, invited by the police, didn't break anything, didn't touch anything, stayed there 18 minutes and left. And he's threatened with a felony in the end of his law career. So I'm defending him. I don't agree with him, but I don't agree with most of my clients. I defend them because of the Constitution. Is it that hard? I know you have to go, but is it that hard for a president like Biden to utter a few above the fray words of respect for the system. And, you know, he can

clearly show his preference or his antagonism to the pending decision. But just a little above the fray comment to the American people that this is our system and you shouldn't be protesting violently and we shouldn't be making remarks about the Supreme court justices. Just some sense of, I think he should do more of that. I agree. I agree. Always a pleasure to be on with you guys. We didn't have a lot of laughs today. I'm saving them up for next time. The last one provided by Alan. Thank you. Thank you. Thank you.

Professor America's Harvard university on his new book. We are. Wait a minute. And listen to my podcast. My podcast, The Dershow on Rumble. The Dershow on Rumble. I listen to it, by the way. It's very good. Thank you, Alan Dershowitz. Goodbye, and hopefully we'll see you later. Bye.

Thank you. Bye-bye. That was good. Yeah. The sound wasn't the greatest. A couple of freezes. That's okay. This Carlin meme really gets under my skin.

What does one have to do with the other? Why? Why? Why is it that most of the people who are against abortion are people you wouldn't want to fuck in the first place? Boy, these conservatives are really something, aren't they? They're all in favor of the unborn They will do anything for the unborn But once you're born, you're on your own Pro-life conservatives are obsessed with the fetus From conception to nine months

After that, they don't want to know about you They don't want to know about you. They don't want to hear from you. No, nothing. No neonatal care, no daycare, no head start, no school lunch, no food stamps, no welfare, no nothing. If you're preborn, you're fine. If you're preschool, you're fucked. But has everything to do with the other. What do you mean? You can't be pro-choice.

You're kidding. No, I'm not kidding. Well, I mean, it's lovely to be, I mean, quote unquote pro-life. But then what are you supposed to do after the baby's born that you've been vying for? So are you advocating that rich people shouldn't be able to have abortions? No, you're missing the point. No, I don't think I am missing the point. No, I think you are because the point is,

is like you can't be all gung ho to make somebody, to force somebody to have a baby that they don't want to take care of and then abandon that baby. If you care so much about the baby, what are you going to do with it once it's born? Are you going to raise it? Are you going to make sure that it's fed and well taken care of? So maybe we should kill all the infants.

I mean, maybe we should. Point is this, one issue has nothing to do with the other. The opposition to abortion is that you shouldn't take a life. When you, if I say that you shouldn't take a life, I'm not oblig I say that you, somebody shouldn't take a life, I'm not obligated, therefore, to take care of that person whose life I'm defending. But I don't want that life,

so why do I have to take care of it? If I was raped by my uncle and I'm 16 years old and I don't want that life either, so why do I have to fucking take care of it? Okay, why do parents have to take care of their kids? Because they're making a choice to have

children. What if they change their mind? Well, then they can give the baby up for adoption. No, you don't. You understand there's no logic. I understand the sentiment. Well, I think this will... First of all, like I said, rich people can afford... You can give the baby up for adoption.

I don't want to carry and give birth to a baby, but maybe the baby doesn't want to die. Well, I mean, maybe the animals don't want to die, but we eat those all the time. Maybe. Yeah. You're a vegan, aren't you? I'm a vegetarian. I'm actually a pescatarian. If you really were a vegan last time, I've never in my entire life. OK, well, I would I would incur. And if you don't and if you don't want to last time i've never in my entire life been okay well i would i would incur and if you don't and if you don't want to eat the sentient being the baby do you have to take care of it now the the cow do you not have to take care of the cow i don't know maybe

point is this carrielle it's a silly argument it's it's it's emotionally satisfying but one has nothing to do but what it does make you does make you wonder if somebody is opposed to abortion, but not a very decent person in terms of, you know, wanting to take care of children after they're born. It does make you wonder what their rationale is for opposing abortion. Maybe they are they really in favor of, you know, against the murder of children? Are they just trying to control women? Oh, come on. Don't be silly. I think some number of people that just as many women as men who are pro-life.

But listen, how about this, Perry? You've made a very good argument against child care. What do you call it? What do you call when a father has to pay? Child support. Because the father can say, I didn't want this baby, so why should I have to take care of it? Well, and in most, in many cases. So you support that?

Don't try to twist it into a corner. I am trying to put you in a corner. I'm not twisting anything. The fact of the matter is that the women who suffer the most are the women who suffer the most are the women who have the least access to any sort of resources or services.

You're going to have poor women of color dying in back alley abortions. Ironically, they tend to be the women who have the most out of wedlock children. But that's neither here nor there. But it's something to think about in that whole scheme that you're creating, because these women seem to not be intimidated by the things that you're saying. Lisa, it seems to be like upper upper middle class and rich white women who really are.

I don't even know this test. I'm making it up. But I know there's a lot of unwed birth among poor people. OK, first of all, I'm the one who's supposed to make things up. But the question is this. What about the dads? What about the dads who say, I didn't have any choice here. You're right.

Let the state take care of it. You don't have any. Why should I have to take care of the baby? Well, you should have thought about that before you came inside another person. Well, what's wrong with saying that to the woman who doesn't want to have the baby? What do you mean? Dan, you should have thought of that, they would say, before you decided to have sex. Before you decided to have unprotected sex.

I mean, OK, what if you're raped? OK, no, no, no, no. What if you're raped? If you're raped, the man, the rapist should have to pay the child support. No, you're when you talk about rape, you're talking about a whole nother universe. I'm not. I'm actually not. Let's not protect it separately. Let's answer the question for the ninety nine percent of cases. And then we can go on to the tough case of rape.

If you say are you maybe you do think a man shouldn't have to pay a child support. It wasn't his choice. I, why should he have to pay? Why does he have to, I am not opposed to getting on board with some sort of argument that women across the board are allowed to have abortions. And until when? I think, and I until I think it depends,

right? I think you have to break down to is the mother's wife at risk? No, no, no. Generic situation. No risks, no rape, no incest. Well, whatever it is, I don't I don't know exactly. I really don't. I mean, I'm not you're not going to get pin me down to a number because I don't know. Approximately. What would you look for? Whatever. Second trimester, third trimester. I would say probably like 40 weeks is a good marker. Forty weeks is when birth. Yeah. I don't know. What are the what's the law? I really it's the one foot rule. As long as one foot is still inside. What's interesting about this is when is it viable? Viable is 22 weeks, I think. OK, so what's the law right now? I mean, let's actually look at the numbers so it viable? Viable is 22 weeks, I think.

OK, so what's the law right now? I mean, let's actually look at the numbers so we know what the law is, a state by state situation. Well, after after Roe is is overturned, it will go to the states. Well, it still is in the states. The states can still within the confines of Roe can still make lots, still make laws. Right now, the states can't can't really restrict it for before 22 weeks. That's why the Mississippi law is being challenged. I do want to say that, and I really would like to look at these numbers, but I do think that it's the overwhelming percentage of abortions take place before. Yes, they do.

The overwhelming percentage are early. It's before, I think, even 16 weeks. Is that right? Listen. I think first trimester. Nobody wants to have a second or third trimester. Wait's before, I think even 16 weeks. Is that right? Listen, I think first trimester. Nobody wants to have a second or third trimester. Wait, wait, wait. Nobody wants to have...

We're in the midst of you answering a question which is, you're going to permit abortion until when? Because now that it goes to the states, the states are going to have to decide this. It was easy to just say, blah, blah, blah. Now they say, okay, well... And I'm saying I need to look at what it is now because I don't want to feel like-

What if I told you the fetus can feel pain at 12 weeks? I don't, I mean, I don't know that that, I really don't know how much that affects the decision. Oh, wow, it affects the decision a lot for me. Well, you're not the one who's to carry it inside your fucking body for 40 weeks. Look, I will say this. I read about Amy Schumer's pregnancy and others.

It's called a M M M a hyperemesis, something, something. It's when they're nauseous and throwing up the whole time. Hyperemesis. I don't know if that's how you pronounce it, but in any case, I cannot imagine I would tolerate a day of that. No, most men wouldn't, frankly. And if it were. No, I think many men would.

But I'm telling you, especially with my particular aversion to nausea and vomiting. And children. But, you know, more so nausea and vomiting. I just don't imagine I would last one day as soon as I felt nauseous. That baby is. That's it. I can tell you that I was coming out affliction and it's horrific. I can't imagine.

I was so sick. I can't I have I have not personally ever had an abortion, but I cannot imagine being forced to carry a child that you didn't want to have. It is. I'm just saying, even if you did want to have it, if I'm feeling not queasy, you know, if I'm if I'm feeling slightly nauseous, I don't know how much of that I could take personally. You'd be headed into the first Planned Parenthood.

In my case, yes. I can't imagine it either. OK, however, I'm happy that you are. However, to think that that's the beginning and the end of the consideration of this issue is almost willfully shutting your eyes to how complex. What if what if hypothetically the fetus could speak and said, mommy, please don't kill me? I'd say that would be even more of a reason to have an abortion. That would be so freaky at that young age. No, but seriously, I don't think it's that simplistic. No, I don't. And I'm not dismissing it is some, you know, just like, oh, who cares? That's not what I'm saying. But I am also saying that I don't agree with Professor Dershowitz in that it is while it

is inside your body, it is very difficult to separate the fact that this is controlling women's bodies. And, you know, you're you're probably going to, you know, just dismiss this or whatever. But I do think that if it were men who got pregnant, it wouldn't even be a question as to whether or not abortion would be legal. Oh, come on. I think if it were women who had to go fight wars, there'd be no question that this is true. You cannot. Well, it's worth I think it's worth considering that hypothetical. Well, it's worth I think it's worth considering that hypothetical. Well, how would that would that change the situation in any way?

And I think it probably would. I'll repeat again. If you look at the statistics, women are pro-life basically in the same numbers as men. All right. This is not I mean, I think there's probably some a few points difference, but it's marginal difference. But what would men we're talking about men now with men, if they could get pregnant, it could be that just women are just more. I don't know. I mean, they're more baby friendly. And but but but would men are, you know, are some percentage of men.

And I think that there are really more concerned about controlling women than they are about protecting life. And I think you can't deny that there's some percentage of men that see this as a way to control women more than as a way to protect. That sounds like crazy talk to me, Dan. Really? I've never heard, I've never once heard a man talk about controlling women. Well, because they're not going to say it outright. But I've never even got the feeling that these churches,

these fundamentalist churches that preach against abortion, the men and the women both feel deep. Like Peggy Noonan wrote a column in the Wall Street Journal. I don't even know that she's pro-life. She's not out to control women. Okay. I hear you. I hear what you're saying. You can't. But I still out to control women. Okay. I hear you. I hear what you're saying.

You can. But I still think there's some, so maybe there are, so there's some of everything. And there's also some women that might be just, you know, they're,

they're, they're, I mean, patriarchy certainly plays a role here, but I have another question for you. Yeah. I'm just snorted. You're losing ground

when you do stuff like that. Because it's so irrelevant. It's really of course it is irrelevant. OK, I think that a lot of I'll tell you what's relevant. A, what does the Constitution say? OK. B, from a legislative point standpoint, what's relevant is. What are we killing here? Are we killing a... Stop using the word killing because the loaded language is really inflammatory. Some people use the word...

Oh, come on. It is. Stop with this. Killing sounds like... Well, you are... Look, we say we're killing the cancer cells. You don't have a problem with that. I mean, killing is an appropriate word in this case.

Murder would be a more loaded word. Okay, fine, fine. an appropriate word in this case. Murder would be a more loaded word. OK, fine, fine. And that's a word that some people would use. I'm just I'm going to just let it go. What word do you want me to use? Terminating? Sure. It's even worse. How about liquidating? What what are we finding a final solution to? Not really. What word do you want me to use? No, it just feels like, you know, you tell me what fucking words use. I can make my point. Just tell me. I have an abortion. Just call it an abort. Whatever. It doesn't matter. Go on. It's I mean, I don't want to argue semantics with you.

What is the status vis-a-vis life of the thing that we are deflating. Okay. Is it, if it's a human life, if it's a baby, then that's the issue. It's like, are we prepared to say, you know what? Doesn't matter to us. We're going to, we're going to kill it anyway. I'm prepared to say that if it's established that this baby, and I'm willing to call it a, at least I'm willing to concede it might be a baby, but if it's completely lacking consciousness

and it doesn't feel pain, I'm willing to say, yes, killing this baby is the lesser evil. Yeah, but I kind of like my argument that I made to Dershowitz because I think it's a pretty compelling argument is that at a certain point, it's a religion,

what we're really doing is codifying a religious belief here, in which case it would be... Why do you say it's a... At what point is it a religious belief? Well, if you look... If a baby has no consciousness or ability to feel pain, then it becomes a religious belief? Yeah, I mean...

But what would you say about a patient in a coma? Well, I didn't say... A patient in a coma has a heartbeat. So why is the heartbeat? What I, what I said, you know, like there's certain, there's certain measures of life. We know when someone is dead, there's no heartbeat, no brain activity, even a coma, they have some brain activity. And, um, uh, well, that's basically it.

And I would add feeling pain to that prior to the time when a fetus, uh, Well, that's basically it. And I would add feeling pain to that. Prior to the time when a fetus has a heartbeat or has brain activity or can feel pain. I would say that overwhelmingly the people who are going to regard that as a human life are doing so out of a religious belief. Overwhelmingly, probably. And at the point where it's a religious belief then um then the woman's right to privacy constitute under current constitutional law then has to be weighed against that and um it would become very much like a like a generic birth control case at that point this is an establishment of religion so the woman has a right to birth control. This is not alive. There's no,

we can do the intermediate scrutiny and decide that it comes out on the woman's side. Where would you put that line in your mind between people who have a religious, a religious opposition and people who have an opposition on the grounds that they think it's murder? Yeah, I would say 12 weeks. As I've been researching it last couple of days, if, if the fetus feels pain at 12 at 12 weeks, you can't.

I don't think with a straight face say that the Constitution protects the right to to. So you think that Roe was decided to put it to put it to sleep? You think Roe was decided pretty well then because that's the first trimester. Well, Roe and then Casey, they extended to the second trimester. You can have you can have reasonable restrictions in the second semester. None of those restrictions. But you can't outlaw abortion in the second trimester. So Roe goes all the way to the second trimester, as far as I understand it.

But I think I think first trimester and certainly the first 80, 90 percent of the first trimester, you could make a constitutional argument based on the right to privacy and Griswold and intermediate scrutiny and all these doctrines that are out there. I think you can make a pretty good case that a woman is protected to have an abortion in the first 10 weeks. Based on the religion clause, based on the fact that this is, that this is a religious belief and it's okay to pass a law it might be

okay to pass a law with based on a religious belief but not when as long as there's some sort of rational basis to it but not when there's a protected class which is women who are impacted by it in which case is like an intermediate scrutiny under the law if i'm remembering it correctly and um you can say that the impact on women is too great to justify the imposition on the based on a rational basis test. I think that changes a lot once you have two lives to weigh against each other. Can I ask a question? Yes. So, Nicole, go ahead. If the opposition is against killing something that feels pain, right? And is that's the opposition here?

That's what we're talking about? I think it's barbaric to think that the Constitution says that a woman has a right to a painful abortion of a baby. Okay, so I have two questions. What about the- And the law can pass that, but the constitution couldn't possibly say that. What do we do then? Because we know that women are not going to stop having abortions. They're going to stop having safe and legal abortions.

I mean, we know from looking at history- Well, history may not be the best guide to what's going to go on here. Well, it's all we have to look at. Well, no, we be the best guide to what's going to go on here. Well, it's all we have to look at. Well, no, we have we can look at Ireland. Ireland just recently legalized abortion. I don't remember reading many articles about these, you know, women being killed in abortions and illegal abortions in Ireland. I think in the in the modern era, they've been either going traveling to another country. Ireland's not in the EU, is it? Well, I don't know.

But Ireland, they can travel free. So travel to another country or take pharmaceuticals. Okay. Interesting. Okay. You're saying the back alley abortion notion might be exaggerated then. Yeah, I don't think we're going to be having, unless I can't say anything

to be zero. OK, hold that for a second. That's interesting. I mean, I think the argument from what I've read and if you look at places like Yellow Fund, which is, I think, based in Alabama, help help a nonprofit helping women get access to abortions that women who do not have means it's incredibly difficult for them to travel to have abortions. But putting that aside for a second, how does this for the most difficult cases, a very young girl who just couldn't possibly travel on her own because she's say 12 years old is in the EU. Go ahead. Go ahead. Say a 12 year old girl that just can't travel without her parents consent. And if her parents, you know, don't want to help her,

then she's really stuck. I'm not saying it's going to be no effect. There was an article in reason magazine. It might've been downplaying, but even if, even if it's correct was significant, it felt that the number of abortions would fall by 12% after Roe is overturned. So 12% is significant. And what about how the same people who are so vehemently opposed to abortion? Now, the same people is often the prelude to a false statement,

but not always. So go ahead. Okay, I'll amend that. But it's usually not exactly the same people. It's some of the same people. By many of the same people. Is that, is that better? Yeah, I prefer that. I prefer that. I mean, I guess you could say it's implied, but I prefer it. No, no, fair enough. Let's be, let's be accurate and deliberate with our language. Um, I don't want to have a double standard for Noam that I'm having for myself are huge proponents of the death penalty.

So how does that shake out? How do you. I know I knew you were going to say that. And that's a really easy response to be snide about. Tell me a death penalty. How does this have to do with abortion? Well, you're saying you don't want to kill something that can feel pain and is alive. Right. But it's OK. So it's not OK to have an abortion,

but it is OK to have capital punishment. I don't see the conflict. OK. You see, because the baby didn't commit armed robbery and murder or whatever the crime would be. That's not that's not what we're talking about, though. We're talking about philosophically, morally, ethically. Morally, ethically, you're not supposed to kill innocent life. Morally, ethically, we can debate about taking a life of somebody who committed a capital crime. There's two different situations.

So I have a solution. How about the women have the unwanted child and we just put it in jail for life? Is that what you're getting at? I think we settle life without parole for these infants. And then the government does pay for their day. The government pays for it. We satisfy that the capital punishment opposition. It's all it's all taken care of. That for it. We satisfy the capital punishment opposition. It's all, it's all taken care of. That's good.

We just solved the whole problem here on this show, live from the table. Thank you for tuning in. I think that's it. Okay. Podcast at comedy seller.com for comments, suggestions, questions.

This is a, I hope you enjoyed this special episode. You can not, I don't think. Would you agree that there's something such as glaring about all the outrage you've been hearing about January 6th for the last 18 months, whatever it is. And then this kind of like winking and refusing to criticize these people showing up at Supreme Court justices homes. It's like, I guess I don't know what they're doing. If they're protesting peacefully, then there's no contradiction. No, it's illegal. You're not allowed. You're not allowed to go outside a judge's private home in the midst of a case.

And even if it weren't illegal, it's intimidating. They would justify it on the grounds that this is such an outrageous. Like stealing an election. I mean, I'm not saying the election was stolen. I'm saying right from the point of view of the people who were. Yes. If you look, if you believe that the election truly was stolen, then that then I guess there's justification for it. No, the system, both sides have to draw a line short of of burning the system down.

You can't storm the Capitol. The founding fathers burned the system down when they went to war against England. Well, if they wanted to clear revolution and the revolution, because otherwise this is all falling apart. But the hypocrisy, why can't the president say, listen, I'm as outraged as you are about this Overturn Your Roar versus Wade. However, we're not going to go protest in front of the judges,

and it's wrong to expect judges to come to a different decision because of intimidation. That's everything our system stands against. Yes, he should be saying that. If he's not... You have to work through the system, not outside it. to come to a different decision because of intimidation. That's everything our system stands against. Yes, he should be saying that. If he's not, I have to work through the system, not outside it. Yes, I think he should.

Crazy. I think he should. I was not aware. I mean, I know people were protesting. I was not aware that it was illegal. And I don't know if it's become violent or if it will become violent. I don't know. It's a Molotov cocktail somewhere.

I don't know where they found some. There's always one Molotov cocktail somewhere being thrown. But know where they're from. There's always one Molotov cocktail somewhere being thrown. But yes, I mean, it's some hypocrisy there. But again, it's like, you know, they would tell you, well, this, you know,

we're justified because they're there. They're, you know, they've declared war on women. And so, you know, all is fair in war. But they have. And the right would say would justify by saying the election was stolen.

So, you know. All right, well, we'll see where this goes. So call it Perry. Are they going to and the right would say would justify by saying the election was stolen. So, you know, I will see where this goes. So call it Perry. Are they going to overturn Roe versus Wade? I think they really might. Well, I thought it was basically I mean,

they said that the draft opinion said we're overturning Roe versus Wade. Yeah, but that can change. Yeah, but I don't think so. And I don't I think for them to change it now would be seen as like

they buckled the pressure. Well, let them buckle to pressure. I think it them to change it now would be seen as like they buckled to pressure. Well, let them buckle to pressure. I think it's really terrifying. I really do. I don't I really do think that there are going to be a lot of women who are getting back alley abortions. I really, really do. I'm not just saying that to be, you know, inflammatory. No, but no one accused you of just. Well, no, no one said that, you know, there is no evidence in places like Iowa. I hope not. That's for sure. I'm going to say 50-50 on Roe v. Wade being overturned. I think there's more than a little chance that they may change it.

Or they may nibble away at Roe v. Wade without completely... Yeah, I think what they would do is uphold the mississippi law to 15 weeks um and then take it from there but but but do you i mean alan didn't really answer this question and i think you've alluded in the past is it maybe just better to get rid of roe v wade because it's been hanging over us for 50 years it's been such a uh such such a uh a factor in every election and we've all been worried that every time a judge is nominated, we're busy. We're worried about it. Maybe just get rid of it and make it a a state by state. And hopefully the states will do the right thing,

because most people are in favor of at least some abortion. Well, part of my theory on this kind of and I was surprised how he bought into my solution to Roe v. Wade. It's like I came up with the opinion. And I was surprised how he bought into my solution to Roe v. Wade. It's like I came up with the opinion. But my feeling is that as let's imagine a world where the Roe v. Wade or the current Supreme Court case protected abortion only for the first eight weeks. Eight weeks. Nobody even knows they're pregnant yet. Well, let's just imagine that for the sake of argument. That might change behavior where people people are a little more vigilant.

Yeah, they pee on a stick right after they had sex. So so this show up. All right, whatever. But it's not whatever. My point. My point is this. At that point, a lot of the wind would come out of the sails of the right to life movement. It's you know, the right to life got a lot of heat by this kind of silent scream movies and showing ultrasounds and and and these things are moving. I mean, there's no question about it.

When you see a three beginning of a second trimester, I don't know if you ever saw the bodies exhibit that used to. Yeah, of course. You see, it's a little baby. I mean, you could say it's not all you want, but you look at that and someone has to tell you it's not a baby. You don't know. It's not we look at it's not apparent that it's three weeks. I mean, three months, four months, six months, eight months. It's just a little miniature thing. And that that is a big part of the reason that people still feel so strongly about this issue. As you get closer to conception, I think you peel away more and more and more people who really care about this. And at the point where it just becomes 15, 20 percent of the population that cares about it, then the issue just goes away.

Just like gay marriage. It's like, you know, whatever. It's not a hot issue anymore. It can't move elections right now. And it's in the second trimester. It troubles a lot of people. It troubles a lot of people who are not religious, who don't know. It's like, and it doesn't feel right. It doesn't feel right to be killing terminating, whatever you want to call it, a fetus in the fourth or fifth month. Again, I really think that it's important to take note that it is a infinitesimal percent.

Hey, would you stop that? Because that's what the law says. It happened. Listen, you do it. You speak out of both sides of your mouth. On the one hand, every time we talk about this, you want to talk about the person who's raped. Yeah, I do.

Which is an even more infinitesimal number. Is it? All right, let's let's let's end. But no, we don't need to get upset or frustrated. I get frustrated. I don't frustrated yet. But frustrated. Yes. Angry. No, not angry. I'm frustrated. OK, frustrated that I understand.

OK, we can end it there. Podcast at Comedy Cellar. Unless Perriell has something. No, she always has something. I do not. It's just like you can't have these conversations and then get annoyed when I bring up points that are completely valid, like girls getting raped. And I don't know how much time you've spent inside abortion clinics, but I used to volunteer at one.

And it's not this just like thing that you can be like, oh, well, maybe it's a baby here. It's like they're like real fucking young girls who are in dire situations who do not want to have babies. We know this. Now, do you understand? Do you understand why I get frustrated at these remarks? Because what you do is take it's a it's a way of ending the conversation about the heart of the matter. We're talking about the jugular here. And you want to move the conversation to the head, move the conversation to the capillary. And the capillary is interesting, but that's not really what we're talking about. Let's settle the meat of the matter.

OK, and the meat of the matter is not rape. Even the trigger laws that are so seem so scary. Many of them have exceptions for rape and incest. And I'm saying that there's a big chunk of the people who are sympathetic or undecided or want to see a row modified, who are really troubled by abortions past a certain point. Most people, except for really religious people, I think are ready to let it go. If it's eight or 10 weeks, if they know there's no pain, no heartbeat, no blah, blah, blah. Then they're like, all right, you know, this is this is not really what I got into this fight for.

And I feel like if the court would the earlier the court finds the right, more the court rolls back the weak, the outer limit of a woman's constitutional right, the more the wind comes out of the sails of the right to life movement. To which at some point we might achieve some kind of equilibrium, which made the thing kind of go away as a hot issue. That's what I think. Okay. Okay. Right.

Nicole. Okay. Bye everybody. Well, we can't just say bye. We have to give a proper, uh, outro.

Okay. Which I've said already, but I'll say it again. I'll say it again because this is where I shine and I won't be deprived of my moment in glory podcast at comedy salad.com for comments, questions, suggestions. Thank you very much, Periel. Thank you. Thank you, Noam.

Thank you to Alan Dershowitz. And once again, thank you to Nicole, our magician of sound. Bye-bye.