The Dispatch Podcast - Abortion in America

Episode Date: September 3, 2021

This week, the Supreme Court, in a 5-4 decision, declined to block a Texas abortion law from going into effect. In Thursday’s Advisory Opinions podcast, Sarah and David tackled the legal aspect of t...he law and the court’s decision. Today, they turn to the politics--not just of the Texas law, but of the issue of abortion itself. Where does the pro-life movement stand today? Where does it go from here? Show Notes: -David’s piece breaking down the Supreme Court’s decision -David and Sarah’s legal analysis of the Supreme Court’s ruling -Study: “How Americans Understand Abortion” Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript
Discussion (0)
Starting point is 00:00:00 Welcome to the Dispatch podcast. I'm your host, Sarah Isgir, and this week I am interviewing one David French. He and I talked about the legal intricacies of what happened with the Texas abortion law at the Supreme Court on the flagship podcast advisory opinions. But I wanted to go further. I really wanted to talk about the politics of abortion. And who better than David French. Let's dive right in. David, I don't know where else to start. I'm watching this. I'm looking at it. Again, we're talking pure politics. This looks like an enormous gift to the Biden administration who needed something to take the media's focus off Afghanistan. Was this a giant F up for the Republicans? Let's start with that first. Um, giant. I'm going to, I'm going to hold open that question on giant, uh, because one of my points is I think because we're likely to see the Texas law blocked relatively soon, days, weeks, I don't know,
Starting point is 00:01:19 um, I think it's going to recede an importance pretty quickly compared to what we're going to see when the Dobbs cases decided that's going to be giant. Dobbs being the Louisiana 15-week ban that the Supreme Court, it's not scheduled yet. It'll either be probably the December arguments at this point. Right. So I think we need to sort of back up and talk about where are people on abortion? Like, where's the – remember Sarah yesterday we started by saying, okay, everybody, forget everything you just read on Twitter? We need to do that again.
Starting point is 00:01:57 Because Twitter is way skewed on intensity. Way skewed on intensity. On both sides. Let's back. Exactly. On both sides. So where are people on abortion? And it's becoming increasingly clear that two things are going on at once.
Starting point is 00:02:17 A lot of data now indicates, and Ryan Burge from Eastern Illinois University has compiled a lot of this, and I put it in my newsletter for yesterday. that if you're going to look at, if you're going to rate people say zero to five with zero completely opposed to abortion and five completely in favor, the fives who are completely in favor are now much more politically active than anybody else. This is your most politically active segment of America. So that's number one. Number two, actually abortion is becoming decreasingly important, even in the evangelical coalition. And the evangelical
Starting point is 00:03:00 coalition is not as pro-life as you might think. So this is a really interesting thing that, again, that if you don't, if you're just on Twitter, you would never know this. That in fact, if you look at some data that, for example, the position, a candidate's position on immigration, is now more important to even an evangelical, a self-described evangelical voter, then is their position on abortion? Their position on addressing the opioid epidemic is more important than the position on abortion. I mean, there's a host of things, reducing health care costs more important than abortion. And so what is interesting is that abortion is not as salient an issue, even in the evangelical
Starting point is 00:03:55 population as it is, as you might think. And then number two, that the people who are becoming, and this is not always been the case, most intense about that issue are on the left. And you add that together, and it seems to me, and this is rank punditry, Sarah, but database rank punditry that the more you make an abortion, it's not in a ban, but close to it as you're going to get in most American laws, the more that you make that the salient political issue, say in the midterms, I'm not quite sure that's going to work as well for the Republicans as they might think.
Starting point is 00:04:39 And we certainly see that reflected in the faces of Republican leadership this week. you'd think if this were the most popular thing that could have happened, we would have seen lots of cheering and shouting and yeah, yehaws coming from a bunch of Republican and pro-life, senators, house members, congressmen. We didn't. And I guess what I'm confused about on that is, like, is this just another example of the Republican Party not believing what it's been saying this whole time? Like the dog caught the squirrel and now it's, It's like, oh, hey, squirrel. The squirrel doesn't taste good.
Starting point is 00:05:20 What are we going to do together now? Yeah, that's a really interesting question because there's this other element to the Texas situation that we haven't talked about yet, which is the Texas law is kind of gaming the system. Okay, so it is something that is intentionally designed to make it harder to challenge a pro-life law, to make it harder to challenge the law and court, as we saw with the Supreme Court ruling. and that it's something that's easily replicated by people on a whole host of constitutional issues if they so desired where you could engineer a series of temporary deprivations of constitutional law. And so it's something that on the one hand you had a bill, let's stipulate for the moment that the position, a heartbeat bill position is the majority position in Texas. Let's just stipulate that if you're polling Texans.
Starting point is 00:06:15 that that's a majority position in Texas. It's not in a majority position nationally. And I say that as a pro-life person with lament. I wish it was a majority position nationally. It appears not to be a majority position nationally, at least certainly by the way that people vote, whether you're going to be asking them questions and a poll, abortion is notoriously difficult to poll,
Starting point is 00:06:39 but it's not a majority position nationally. Can I just do a quick album side on why polling? on abortion is very flawed in my view. One, every abortion question that mentions Roe is meaningless. Just go ahead and don't read the rest of the question, chuck out the answer, because they're using Roe as shorthand. Yeah, I get that. But what that shorthand means to individual people is going to vary widely and you're not asking them what Roe means. Therefore, the question's meaningless. Second, when you say, should abortion be legal in most circumstances or not legal in most circumstances.
Starting point is 00:07:13 Yeah, nope, that doesn't work either because that's not actually what we're arguing about. We're arguing about really three buckets of stuff. One, when in a pregnancy abortion should be legal. What restrictions should be on providers do they need ambulatory centers, stuff like that? And three, what regulations should be on patients, waiting periods, notifications, stuff like that.
Starting point is 00:07:37 If you're asking specifically about those, then you run into all my issues with issue polling. But, like, you're not even getting there in most of these abortion questions. You're just asking abortion. Like it? Dislike it? Most people feel very differently
Starting point is 00:07:50 about abortion at eight months than they do it six weeks. If you're not asking the specifics, you're getting a nonsense answer. Okay, now please continue. Yeah. And so you're looking at something that nationally is not where people are,
Starting point is 00:08:05 even if it's where they are in Texas, executed in a way that feels like gamesmanship to an awful lot of people. Now, again, this is where you have to ignore sort of the Twitter and everyone high-fiving, look how smart we are, that we did this in Texas. Is this something that you would want to see replicated in other states targeting religious freedom?
Starting point is 00:08:25 Targeting gun rights. I mean, targeting, you name it. It is a development, as I said, it seems deliberately engineered to make it harder to challenge a constitutional violation. I don't like that. I don't like that. So you have the gamesmanship.
Starting point is 00:08:41 You have a position that is probably out of step with the majority of Americans. So that and it's dominating the news, taking a lot of attention away from the Biden administrations just rank incompetence and deception following the collapse in Afghanistan. So there are reasons why, Sarah, just flat out political reasons why you would see some long bases. and just in a pure political analysis. And again, I say this from his position of lamentation because, you know, I've been a pro-life. I formed a pro-life group at Harvard in 1992
Starting point is 00:09:21 called the Society for Law, Life, and Religion, which, by the way, if you're going to form a student group, think of how people are going to use your acronym because for the next like 20 years, it was just called slur. Oh, yeah. No, it was called that when I was there. Yeah. So there was slur. And so I've been in the pro-life grassroots forever. I think the actual first pro-life measure I tried to get through like a student council was when I was in student government at Lipscomb University. I tried to push through a provision where we did not
Starting point is 00:09:57 suspend automatically unwed mothers, which I thought was not a pro-life measure. Was this in 1814? What were you in college? My God. I mean, it was a while back. It was like 89, 90 maybe, so. I mean, Jean Valjean's going to come pick up the orphan. Okay.
Starting point is 00:10:24 So one more question on then the Republican part of this. You're right that it's a long time to the 2022 midterms. I'm thinking, you know, when it comes to judicial picks for instance, and we have to have conservative judicial picks so that they can overturn Roe. That has always been, according to polling and according to now some decent evidence, for instance, in the Missouri Senate race in 2018 and 2016, there's some evidence that that will animate the right more than the left. Okay, now there's a 6-3 majority on the court. Now there's this Texas. Assume for a second that Texas is still percolating in 2022.
Starting point is 00:11:07 not that there's not some injunction on it, but it hasn't gotten to the Supreme Court. Dobbs has done whatever. If abortion is still a top issue going into the midterms, who does this animate more if it's still in the balance? Boy, that is a great question. You know, so much depends on the outcome of Dobbs. If Dobbs comes out without overturning the Roe-K-C framework,
Starting point is 00:11:37 In other words, eliminating the constitutional right to an abortion. If it comes out without that, it's going to have, in that sense, I think it's going to have a demoralizing effect amongst a lot of Republican-based voters, sort of your core pro-life activist, is going to be very demoralizing, probably more or less neutral to most voters, but it will also remove from the Democrats a huge motivator. to get to the polls in 2022. So I think in some ways, it might, after sort of an enormous wave of commentary immediately following the decision, by November, will it even be a thing? If what ends up happening is the basic abortion regime
Starting point is 00:12:27 in the United States, where 90, 95% of abortions, or when 90, 95% of abortions take place is untouched, I think it will be, in a lot of ways, a non-issue in 2022. If Roe Casey is completely overturned, you've got, you're going to have a seismic shock amongst particularly the left side of the spectrum.
Starting point is 00:12:51 You might have a lot of surprise on the part of Republican voters who are not necessarily, that's not necessarily their big issue. They're sort of more in the middle on the abortion question. That's not going to necessarily motivate them to get to the polls. And I would anticipate a wave of pressure for something like court
Starting point is 00:13:14 packing, for example. And then that brings us to something that we haven't talked about. I was having a conversation with a friend the other day, and I described the Republican Party as a House of Cards that the Democratic Party seems to be singularly incompetent at pushing over. and because the Democratic Party is really captured by also by a base that's out of step with most people on abortion. And so what ends up happening is the Democratic Party, there's a part of the GOP base that is out of step with the majority and they push the GOP in a way that's out of step with the majority.
Starting point is 00:13:52 And the same on the Democrats. And they have pushed and have succeeded in imposing on the United States of America an abortion regime, that Europeans look at, you know, these secular, you know, godless European democracies look at and say, what, wait, what? Abortion's legal that late, really, seriously? And so if you have countering extremisms, you know, you have a, and I say extremism only in sort of where people fall in a political spectrum, because I fall on the spectrum of, abortion should be banned in all instances except life of the mother, then if you have these countering extremisms, then that whole middle, that whole middle, which is really broad in its
Starting point is 00:14:47 views, in many ways, just doesn't know where to go. They just don't know where to go. So that brings me to the strategy, the political strategy of the pro-life movement. And that's really why I want to talk to you. Because I have read it both ways that this was strategically brilliant and strategically stupid. And I want to offer you both theses and see which one you're buying into at the moment. So strategically stupid I think is more obvious. We're now all talking about this incredibly extreme ban six weeks, as you said. The majority of the country doesn't think this is a good idea. Not only is it what amounts to a ban in Texas after five, six weeks.
Starting point is 00:15:31 It's also the cleverness and the cuteness of the whole thing. It's sneaky. Not a good look for the pro-life movement. Not the way you want to win this fight. This isn't hearts and minds. This is, we got one past you. All right.
Starting point is 00:15:45 Let me give you the other version. Ah, ha, ha. No. Because we're all talking about this very extreme six-week thing that Texas has done, dobs where the ball gets. is actually being played looks super reasonable yeah six weeks we're all like yeah 15 weeks that is in line with europe that's why mississippi passed that one they had sort of you know really thought this through
Starting point is 00:16:15 they looked at international law something republicans loathe um in most of europe after the first trimester it's not this heated issue over there it's more like look you've had the opportunity you've gotten to think about this and if you haven't made up your mind now the balance now goes shifts to the baby from the mother and so Mississippi's like let's bring some European
Starting point is 00:16:37 style morality to America and that now whereas 15 weeks before looked like you know the end of the earth the flat earth and there be dragons after that the Texas has now filled in the gap of where the dragons actually are
Starting point is 00:16:53 and 15 weeks just looks like some good old American apple pie. So which is it? Was it strategically stupid to do this in Texas or just totally brilliant jujitsu? I mean, it totally depends on how Dobbs comes out because if Dobbs is we're preserving a constitutional right to abortion in some form, but upholding the 15 weeks, then if they uphold the 15 weeks, there's a segment of the left that is going to absolutely be furious. But you know what? They will look extreme to the majority of Americans who think 15 weeks
Starting point is 00:17:32 is a totally fine. That's a totally fine limit. Absolutely fine. And so there's this part that is if the Supreme Court is on kind of this institutionalist mindset, when to preserve the institution of the Supreme Court and the public credibility of the court, interesting, There is an argument that says, well, if you uphold this 15 week, which is right in line with Europe and other countries that we respect and like and right in line with where a lot of Americans are, that people really being upset on the left will be seen as weird. But there will also be people really upset on the right and view that as a failure of the conservative legal movement. I mean, the total failure of the conservative legal movement. So you will see two sides, two ends, really, really, really being angry about it. And so just from a political standpoint, that 15 week, that sort of 15,
Starting point is 00:18:35 sticking with that 15 week middle ground without really touching Roe Casey as an underlying constitutional construct, you're going to really tick off both wings. And then there's going to be a middle that's just kind of like, oh, of course. Okay, fine. All right. Next story. And so that's where I think Dobbs will become.
Starting point is 00:19:00 That's why I call the Texas thing, kind of the side show before the main show. It's like preseason football before the regular season, is if you think this is big, this outcome, and Dobbs is going to be huge. And the other thing we haven't really talked about yet, Sarah, which I think is so important. So I said earlier, I believe as a matter of justice, what should a just legal system do?
Starting point is 00:19:28 It should protect the life of the unborn, except when the life of the, and the physical health of the mother is at stake. But what is the object of the pro-life movement? Is it to ban abortion or is it to end abortion? And those are not necessarily the same things. okay and this is so important because if you look at the actual numbers on abortion the abortion rate was higher in 1973 than it is now and in 1973 abortion was banned in most states okay so an abortion ban does not necessarily mean an abortion end why do we know that because there was a higher abortion rate when abortion was mostly banned, then there is now where abortion is legal in all 50
Starting point is 00:20:20 states. And so the pro-life movement's objective is ending abortion, and banning abortion does not necessarily end abortion. And this is something that has to be understood. And a lot of people don't make these distinctions, and which is why I always go back to where are we culturally, where are we morally on this? And if you take political actions that impair the cultural argument, you can be defeating the pro-life cause, which is about saving lives at the end of the day, even as you're advancing illegal superstructure,
Starting point is 00:21:02 if that makes sense. So for those listening at home, that right there was like the whole reason I wanted to talk to David this morning. I actually wasn't sure that we were going to record this as a podcast, so much as I wanted to get on the phone and talk with David and like that was it. That's what I wasn't. I didn't know. I didn't know. Yes, ban versus end. Yeah, that's it. Not long ago, I saw someone go through a sudden loss and it was a stark reminder of how quickly life can change and why protecting the people you love is so important. Knowing you can take steps to help
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Starting point is 00:22:13 already applying through ethos, it builds trust. Protect your family with life insurance from ethos.com slash dispatch. That's ETHOS.com slash dispatch. Application times may vary, rates may vary. So neither of us obviously were in the room as this was being, as they came up with the Mississippi law. But David, do you think I'm right that this was actually very controversial that Mississippi only did a 15-week ban? It was a legal strategy versus the movement strategy. And whereas in Texas, I'm sure there was a similar debate, the movement strategy beat out the legal strategy people, although, again, with the legal strategy people coming up with a really cute way to not have it enjoin. I bet that there were people who felt very betrayed when Mississippi
Starting point is 00:23:06 did this 15-week ban, and we're like, screw the legal strategy. This is not actually a victory here to just have a 15-week ban. I'm curious if you've ever been in the rooms for those discussions of legal strategy versus movement strategy. Oh, my gosh, this is one of the reasons why the pro-life movement is, there's a lot of people who really dislike each other in the pro-life movement who share the same objective. I mean, really, and this is something that goes back years and years and years. This is not just like a Twitter product of Twitter and modern Twitter beefs. This is something that there has been an awful lot of dispute between incrementalists and what are called sort of abolitionists, which is misleading because virtually everyone in the pro-life movement
Starting point is 00:23:57 is abolitionist. But an abolitionist would be somebody who right now, there is only one strategy and that one strategy is total abolition, anything other. Incrementalism is of the devil. But Mississippi has a heartbeat law, too. So what a lot of these states have done is they sort of have their cake and eat it too. They'll pass an incremental law, and then they'll pass the more totalizing law, and then the both of them wind their way up through the courts. So that's sort of how a lot of these states have squared that circle.
Starting point is 00:24:28 So Louisiana, which we just had a case around the administration, admitting privileges law at the Supreme Court of the United States. It also has a heartbeat law, which is blocked by court orders. So basically a way a lot of states have done it is they'll pass the incremental law and they'll pass the more totalizing law. But you're absolutely correct on is there division in the pro-life movement over tactics? Heck yes. I mean, there's been division on some of the amicus briefs filed in the Dobbs case. Like not all of them are going, are swinging for the fences on getting rid of Roe Casey. And it's causing a lot of people to be angry because the argument is, wait, we don't want
Starting point is 00:25:11 to give the justices, if we're a pro-life movement, we don't want to give the justices a framework to rule on any other basis other than getting rid of Roe Casey. And so you have, you should see my inbox some days on smart pro-life folks who are saying, now is not the time frame in criminalism and now is not the time, you know, now is no time for incrementalism and then another is wait you can't you can't just swing right for the fences if you swing for the fences then somebody's going to you know hit a double and you're going to be and you're going to deflate the whole movement and it real there's a lot of disagreement and argument and it generates a lot of anger um which will surprise absolutely nobody and my view
Starting point is 00:25:55 legally has always been essentially i i have seen my view legally has always been to both and approach pass a heartbeat bill and pass an incremental restriction. If that's, you know, if you, if you have the kind of overwhelming Democrat, I mean, overwhelming pro-life majority in your state, and your argument is this should be a matter of state, this should go back to the states, the more states pass heartbeat bills and the like, the more they tell the Supreme Court, there's a giant movement. It might be a minority in the whole United States of America, but certainly, a majority and sometimes even a super majority
Starting point is 00:26:34 in a lot of American jurisdictions against this abortion, the current abortion legal regime. So I'm assuming that you will have a better grasp with this than I do. If Roe is overturned in Dobbs, and I want to be very specific about what I mean by Roe, meaning we, already you have to get rid of Casey
Starting point is 00:26:55 to even get through to Roe. Roe is simply the existence of the constitutional right to an abortion. So that is gone. And that means the entire issue devolves to the states. What does the country look like the next, I don't know, let's call it one year later, two years later, whatever metric you want to use. I've seen two states have some ban on abortion. I've seen higher. I've seen lower. Eight states have pre-row abortion bans that are still on the books that would maybe become automatically in place after. Tell me what happens. Yeah. So this is a really good question.
Starting point is 00:27:32 So we, you know, as we've discussed, legally what happens as it comes up, goes up to the states. On the ground, what happens? Well, this has been studied pretty carefully because what you have is a series of legal regimes where states with smaller populations and low abortion rates. So this is very important. So states like Mississippi, Alabama, Tennessee, which have very restrictive abortion laws, even by the time those laws were passed, the abortion rates there were already low, compared to, say, a New York or a California.
Starting point is 00:28:08 So you have states with smaller populations that have already low abortion rates that pass restrictive abortion legislation that would then go into effect once Roe is decided. And the result is that between 87 to 90 or so, between, you know, roughly 87, 88, 89, 90% of abortions would still take place in the United States of America. Why is that? You say, wait a minute, rose overturned in a whole bunch of states would, their heartbeat bills
Starting point is 00:28:42 would go into effect. These, again, are lower population states with the exception of Texas that already had low abortion rates by and large. They'll higher population states, New York, California, more progressive states, they already have a higher abortion rate. And then, of course, people in some of these low, in some of these states with anti-abortion laws could travel to a legal state or they could get one illegally. So overturning row would mean maybe a 10, 12, 13 percent decrease in abortions, which is a shocking to a lot of people because they think, wait, I thought overturning row would end abortion or would
Starting point is 00:29:23 materially change the facts on the ground. And the reality is, yeah, 10% decrease in abortions is a lot. I mean, that's a lot of people, but it is not what people expect. They don't think, oh, wait, we end row and 90% of abortions will still happen. Can I throw in one more factor that you're not even considering in that? Plan B will still be available over the counter, and perhaps people will be more thoughtful, more quick to use that or maybe more thoughtful about birth control,
Starting point is 00:29:56 etc. I actually think you will see even less of a decrease than the shocking number you just said, which is blowing my mind right now, but I think that could be an overestimate, not an underestimate. Yeah, it's entirely possible. People respond to the market. Yeah, well, it's entirely possible,
Starting point is 00:30:13 and also it's important to realize that these heartbeat bills were passed at a time when nobody believed they would go into effect, right? So in a lie of ways, they were a freebie. This was sort of a way that you could signal, we're pro-life, I'm pro-life. And so you could tell primary voters, I'm pro-life, I signed the heartbeat bill.
Starting point is 00:30:33 But nobody did it, believe it, not one legislator voted for it, believing we're going to actually have a heartbeat bill regime. In fact, the Texas legislature, by its maneuvering, was the only one that really made it possible to even do it temporarily. And so what happens in all these states? I don't know.
Starting point is 00:30:53 Does it do another set of legislators say, wait a minute, my voters are saying that isn't actually the way they want this state to be. Do some of these swing suburban voters who've been swinging kind of blue say that I'm more moderate on this issue than that? It remains to be seen. But again, at the same time, you will also have, if Rose overturned, a. national democratic push to enact a national, a federal statute codifying row. And I've seen the language of some of those statutes, and you know what, they're pretty extreme. And so would the Democrats move so far in the opposite direction as to, you know, throw away
Starting point is 00:31:42 whatever political advantage they get in some of these other states? Yeah, I mean, just go back to it. It's a House of Cards that the Democratic Party seems uniquely incapable of pushing down. Let me give you the hilarious scenario for the pro-life movement, which is, this is you very much stays in the front. As you said, the fives on the one to five scale are the more motivated that Democrats snatch victory from the jaws of defeat and manage to hold on to the House, which as of, you know, three days ago I would have said they would not hold on. I already think they're going to hold on to the Senate and maybe even pick up a seat or two. So they maintain control of both houses of Congress and the presidency. The Supreme Court, let's say, finally strikes down Casey and Roe.
Starting point is 00:32:31 And the result is that the Democrats have the votes then to not only pass national federal legislation recreating a now statutory right to abortion at any stage. of gestation, and they pack the court. Thus endeth American democracy because of the court packing, not the statutory regime. And like the pro-life movement caused the end of the American experiment.
Starting point is 00:33:02 You know, I would say, like if we were around, if this was a conversation 10 years ago, I would say, wow, that's pretty catastrophic there, Sarah. But you know what? I wrote a whole book. I feel like it's the other scenario for your book, like part the second book by David. I think this is it.
Starting point is 00:33:24 But, you know, in the book, one of the scenarios I did, I had one scenario for Cal Exit and I had one scenario for Texas. And the Texas scenario was formed around a 5-4 reversal of Roe, Casey, followed by a court pack. And it wasn't the court pack itself that did it. it was all the consequences of the court pack where all these red states say, we believe the court pack is an illegitimate. The court is now illegitimate. We're not going to follow its directives, which leads to a constitutional crisis. People make terrible mistakes, yada, yada, yada, and then everything starts to collapse. And, you know, one of the issues here, though, with the abortion question that is so difficult, again, we're in this political
Starting point is 00:34:11 realm, right? What's so difficult is that Roe itself was destabilizing. And, I mean, Justice Ginsburg said this in 1992 before she was Justice Ginsburg. She said, if Roe was less breathtaking in scope, are we where we are? The answer is no. So Roe itself is destabilizing. So it's, you know, one of the, the question is what I raised. Which is why, by the way, like, this is always what annoys me when people talk about Roe. Casey overturns Roe. Yes, the Casey court when you actually go read it says, oh, no, no, no, we're not overturning Roe. We're keeping the quote unquote essence of Roe, whatever that is. And then they go on to overturn Roe in every other aspect in terms of the standard use, the level of scrutiny use, everything else. So honestly, like, people should really
Starting point is 00:35:00 stop talking about Roe. The country thought it was destabilizing. The court itself thought it was destabilizing, and they replaced Roe with Casey. And yet we still talk about Roe, and it drives me crazy. Right, right. So I'll just say, Roe Casey. All right. So what ended up happening is that was destabilizing. And it has been destabilizing. It's one of the reasons why our national politics are so fraught has long been this very issue. And so it's one of those issues, Sarah, where what is the stabilizing path? And it's very difficult to discern. I mean, it's very difficult to discern.
Starting point is 00:35:43 And that's where we are. If you're at the Supreme Court and you say, well, our stabilizing path is upholding or modifying the KC standard in some way, do our politics look stable to you now? They're not all that stable. this is an issue that is so fraught and that this that has been fraught for 50 years and my argument is if we could survive
Starting point is 00:36:09 the initial wave, the shock wave of the overturning of Roe v and the Roe Casey framework that in the long run it actually might be more stabilizing because it will return the issue to the voters national politics on this point will be less fraught and that could have a stabilizing effect.
Starting point is 00:36:32 But let me tell you, can I get more bleak, Sarah? Oh, please. Okay. So I was talking to somebody yesterday, off the record, about the smartest observer of this stuff, as you can find. And he said, here's the reality. All of this data that says that abortion is becoming less salient even for, or isn't as salient even for evangelicals
Starting point is 00:36:57 than you might think it is. There are other culture war issues that are inflaming us 10 times more than abortion. You know, in people who follow, for example, donor interest and donor activity and grassroots activity, things like cancel culture, the anti-CRT fight,
Starting point is 00:37:18 the wars over wokeness. All of those things energize the grassroots right now orders of magnitude more than abortion. Just orders of magnitude. And that's actually consistent with my own experience going back for some time. I mean, before I was a dispatcher and a member of the media, I was a pro-life lawyer and religious liberty lawyer. And I can tell you, and I would, I fundraised so much over the last 20, 25 years on abortion,
Starting point is 00:37:52 religious liberty. It was a lot easier 15 years ago to raise money to take on the campus left than it was to raise money for a pro-life cause. 15 years ago. If abortion was the
Starting point is 00:38:08 most motivating factor in the Republican grassroots, why do crisis pregnancy centers often function on shoestring budgets and struggle for volunteers? I mean, that's kind of the sad little secret behind the curtain, which is when it comes to how people vote with their wallets and their time,
Starting point is 00:38:30 abortion isn't as salient as it appears on Twitter. With Amex Platinum, access to exclusive Amex presale tickets can score you a spot trackside. So being a fan for life turns into the trip of a lifetime. That's the powerful backing of Amex. Pre-sale tickets for future events subject to availability and varied by race. Terms and conditions apply. Learn more at amex.com.ca. All right. Last topic, you and I talk about politics with a small p of the Supreme Court a lot on
Starting point is 00:39:00 the flagship podcast advisory opinions. For this podcast, I want to stipulate that the entire court is a political actor. Every justice and the court itself, somehow, the nine of them who form like Power Rangers style, like the big green guy when they put their rings together. Wait, that was not Power Rangers. Is that what, you know, the eco guys who like, one's Earth, one's water, one's, oh, was that Wonder Twins? No, wait. That was only two.
Starting point is 00:39:28 That was like Earth and Water or whatever. No. No, there's Earth, water, fire, and wind. And they put their rings together and they form the green guy and they're like Eco Warriors. This was back in the 90s, obviously, maybe the 80s. Perhaps it's my cultural conservatism, but I was not as familiar with the environmentalist superhero genre. Okay, okay.
Starting point is 00:39:53 No doubt legendary producer Caleb will have looked this up by the time I finish. But the point being, treat the court as just a political animal. What has the Texas bill, again, I want to give you two different scenarios here. One is the Texas bill shenanigans have spooked the court, make them less likely to rule in a sweeping fashion in doves because it's shown them just how. salient and passionate people are about this issue? Or two, they've stuck their toe in the water and like, yeah, it's a little chilly, but it's not as bad as they thought. How does the Supreme Court get affected by the external factors here? That's a great question. I mean, I've literally
Starting point is 00:40:37 been thinking about that a ton, ever since the, was it what, late Wednesday night when the decision came down? And here's where I'm thinking, here's where I am on this. I think to the extent that they're just a political actor, they're going to be surprised at how quickly the news cycle moves on. To the extent they're just a political actor, that the level, no matter the consequence, no matter how consequential the issue is, it is often shocking how quickly it will be, it is dumped from public consciousness. So think about how this Texas law, which is a temporary it is a it is a temporary um alteration to the row casey framework in one state out of 50 has dumped from the front pages a catastrophic American military defeat with hundreds of Americans still
Starting point is 00:41:35 left behind military still left behind enemy lines that that's off the front pages now because of this now on the one hand you'd say well that's how important this is but just you wait just you wait, and you're going to see something else. And so I think overall, if they're sort of, you know, if they're not taking this sort of need-jerk view that a 24 to 48-hour to 72-hour snapshot tells us what we need to know, and they take a longer view, they're going to come to the conclusion that is, well, we just might as well rule according to our jurisprudential philosophy, which is what they should be doing anyway.
Starting point is 00:42:15 I think that's exactly right. on both fronts, what they should be doing, but also I think what, why justice has always come back to that? Because even if they do look around, it's like, me, this is a lot of sound and fury signifying nothing. Yeah, exactly. Okay, I did find it.
Starting point is 00:42:33 I can't believe I forgot this. Such an important part of my childhood. Captain Planet and the Planetaires. And I even forgot one of the Planetaires. So it's Earth, Wind, Fire, Water, and Heart. I forgot the little dude who's heart. And then they put their little rings together and they form Captain Planet and they stop pollution and people who litter or who dump stuff in the ocean. And there's a song that goes with it.
Starting point is 00:42:55 And I urge you if you were not a child of the 80s and 90s, just go ahead and look up that song. Because it's going to be stuck in your head all day. David, what was the- Can I make right before we go one last recommendation on this topic? Not Captain Planet. Oh, well, then I'm not sure I do want to hear it. No. This is a recommendation. So I talked about the difference between banning abortion and ending abortion. They're not the same things. Everyone needs to understand that. And the priority of pro-life movement should be ending abortion. All right. The single best thing I have read to understand why abortion rates have been plummeting, even as Americans are still broadly somewhere in the middle on the abortion, the legality issue, is a Notre Dame study. And it is called, called how Americans understand abortion.
Starting point is 00:43:47 Okay, we can put it in the show notes. I'll put it in our chat right now. And what they did is they took hundreds of people, demographically representative, and they had conversations with them about abortion, not ask them poll questions, had real conversations. And the bottom line findings were pretty fascinating,
Starting point is 00:44:08 but amongst those findings was a really interesting, so again, it was a minority were for, banning, a minority were for protecting right up until birth. But every one of them didn't want abortion. They didn't, when they're talking about their own, their own, this is the key sentence. None of the Americans we interviewed talked about abortion as a desirable good. And that was a fascinating finding. So wherever your legality is. This was done,
Starting point is 00:44:48 this came out in 20, late 2019, early 2020. Wow, so really recent. Because I mean, to me, that goes back to why the Clinton phrase was so, worked so well, safe, legal, and rare. Because actually, I think that's where the vast,
Starting point is 00:45:04 vast majority of Americans are, to some extent, you know, still on a spectrum. And why I think, you know, some of the reporting this week was sort of ghoulish. Again, no matter where you are on pro-life, pro-choice, anything on the spectrum,
Starting point is 00:45:19 as they're talking about racing to complete 47 abortions before midnight of babies with heartbeats, like they're talking about getting refugees out of Afghanistan. I don't think that's where most people are. Right. Yes, exactly, exactly. But that Notre Dame study,
Starting point is 00:45:38 and it also will really inform you, if you're pro-life on where you stand on things like child allowances, that one of the things that a lot of these folks were talking about were why would somebody get an abortion? Some things were personal things that state policy can't really touch, like a boyfriend's pressuring someone or parents pressure, which is a thing that happens. But another one was how financially secure do people feel?
Starting point is 00:46:08 and one of the interesting things about the Mitt Romney proposal was he he says you start getting the child allowance while the child is still in the womb to help prepare the family financially it's a very interesting and if you're sort of looking at public policy through a public if you're looking at public policy through a pro-life lens please read this study please it will really impact the way you think about a lot of different issues all right so my childhood was saturday morning cartoons um And I particularly was into Captain Planet, obviously, and Teenage Union Ninja Turtles. What's the equivalent from your childhood? Oh, Rassland. I'm sorry. What? You don't, as a Texan, you've got to know it Rassland.
Starting point is 00:46:53 So, wrestling is the sport that is played in high school and college. Rasselin is WWE, you know, it's Dwayne the Rock Johnson back in the day, Hulk Hogan. Or when I was growing up, Jerry the King Lawyer, Lawler, Jerry the King Lawler. My apologies, King. I know you're listening. So, Rassland. That was the, I would wake up, roll out of bed, flip on the TV, and watch Rassland.
Starting point is 00:47:28 And then go to school on Monday, and we would talk for hours debating not only who should have won various matches, but whether it was real or not. Hmm. Have you ever been noodling, David? I feel like noodling is the flip side of the rasselin coin there. I have, even though I grew up in the rural South, I have to say I've never been noodling, much to my shame. I loved fishing for catfish, but no, never with my arm. All right, listeners, thank you so much for joining. David, thanks for being here. This was the conversation that I needed this week. I was craving it. Thank you. Well, thanks, Sarah. This was fun.
Starting point is 00:48:11 Last night you said, are you available for the dispatch pod? And I said, who's the guest? You said, I did. That's literally how this went. Yeah. All right. Well, I'm going to see you in just a few minutes for our dispatch fantasy football league draft. Indeed.
Starting point is 00:48:30 Indeed. I enjoy watching you finish second. This episode. This episode is brought to you by Squarespace. Squarespace is the platform that helps you create a polished professional home online. Whether you're building a site for your business, you're writing, or a new project, Squarespace brings everything together in one place. With Squarespace's cutting-edge design tools, you can launch a website that looks sharp from day one. Use one of their award-winning templates or try the new Blueprint AI, which tailors a site for you based on your goals and style.
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