Episode Transcript
Speaker 0 00:00:00 Yeah. Okay. Um, well, I am gonna, uh, we've just got a few people here gonna start off by again, um, asking people to share the room, please. Um, and I'm gonna start pinging people in, but, uh, Rob, why don't you take us, take it away.
Speaker 1 00:00:21 Okay. So, um, obviously there's a, uh, right much controversy, uh, a week or so over the, uh, leak of a, uh, draft of an opinion on as a Dobbs versus Jackson women's health organization, which would just be known as Dobbs from here on out, uh, which is apparently, uh, the way in which a five justice conservative majority is going to overturn Roe V Wade. And so the, you know, national judicial protection for the right to abortion to go, you already have a bunch of states, uh, uh, going out there and, uh, passing an anticipation passing or planning laws that are gonna be highly restrictive on abortion. A number of them actually have what are called trigger laws, uh, already in place where, uh, they passed a law years ago, uh, with a, a, a ban, a, a very restrictive ban on abortion. And, uh, they have, uh, but the, the law obviously couldn't go into effect then.
Speaker 1 00:01:27 So they said the law will remain on the books. And as soon as the Supreme court rules, you know, overturns Roe V, Wade, then this law will go into effect. So it's gonna be triggered by this ruling that these laws will come into effect. And it it's Cru some rather amusing situations where sometimes you had lawmakers who voted for this thing, thinking, oh, well, it's not gonna happen. So I will never be, you know, this will never actually come into effect. So I don't have to worry about it being, you know, being held to comp for the consequences. It's something I can do to, you know, shore up the vote, uh, uh, among the rednecks and, uh, uh, we're going to actually happen. So I won't have to worry about now it's gonna happen. So they have to worry about, wait a minute, we do exceptions for this and that.
Speaker 1 00:02:07 And the, and it's going to be, you know, politically embarrassing. So they have to scramble on that. All right. So I wanted to talk about though, about what I found to be interesting about the reasoning in, in, in dos. And, uh, this is a draft of a, an opinion written by justice, Samuel Alito, uh, one of the conservative justices and, uh, it, the, the draft verified that it's a real leak. This is a real draft. Uh, the final version may be slightly different, but this gives us a good idea of what the argument is that's being offered. And a couple things I, I wanna talk well specifics of abortion later, but what I found interesting about this is the insight it gives into the justices, the conservative justices view of what rights we have that are protected by the Congress, by, by the constitution, how you tell what those rights are and the meaning of originals, the actual meaning and practice of originalism, which is the, the leading conservative, uh, uh, judicial philosophy, uh, theory of jurisprudence.
Speaker 1 00:03:19 So I wanna talk about what rights, uh, we talk about. So the issue in this case has to do with crucial ideas in constitutional interpretation, as substantive due process and enumerated rights. So I'm gonna take those one at a time. So substantive due process is the idea that the, the fifth amendment there's a guarantee that no person shall be deprived of life, Liberty, or property without due process of law. Well, what does due process of law mean? Well, for one thing, it means has procedural due process. So the government has to go through the right procedures. Things has to be done through the right agencies. Uh, they have to follow, you know, this separation of et cetera. It means you do all the procedural things, you file the right paperwork to do something, but there's something more than just filing the right paperwork. If there's also the idea that due process, which is that sometimes the substance of a law makes it illegal, makes it illegitimate as a law.
Speaker 1 00:04:17 And so, for example, the example I give that, that I think would make clear to people is, uh, that one that's easily understandable is the first amendment says Congress shall make no law bridging the freedom of speech or of the press. Well, Congress shall make no law is a big statement, right? So if Congress shall make no law doing that, if Congress passes a law, a bridging freedom of speech and then tries to enforce, and then somebody tries to enforce that, you could say, well, that's not the due process of law because Congress shall make no law. There's no way for Congress to make a law to do this. So the substance of what the law does renders it invalid because it contradicts the first amendment right now. The reason why we don't typically have that is such a clear cut case is you wouldn't fight a case that has to do with the first, with, with freedom of speech.
Speaker 1 00:05:04 You wouldn't fight it as a due process of law case. You would fight it as a first amendment, a first amendment case, cuz there's this very explicit guarantee where the due process process really comes into play is when you have an issue where there is not as explicit and, and firm a guarantee, uh, or as an explicit and, and fully spelled out a guarantee as there is for free speech in the constitution. So you have to say, well, here's an argument as to why it's invalid for government, any law that does this. So the substance of this law renders it invalid. And then you have a substance of due process case. But to do that, you have to say, basically there's some fundamental, that's fundamental that that's, that that is foundational to the very purpose of government that this violates, that renders the law invalid to do that.
Speaker 1 00:05:58 So you have to have an idea of, well, where, what rights do we have? And that's where the unen now, before I get to UN that's where the issue of unen rights comes in. Now, before I get to this, the less essential party is the substantive due process applies to the federal government, but there's also the doctrine of incorporation. Based on the 14th amendment said that the law, the rights guaranteed you would Sue UNS, constitution are also guaranteed you against the federal government, but against the state government. So a state governments try to violate your freedom of speech. If they try to violate one of your protected rights or government, you can Sue them in the federal government. You know, a federal judge can say, no, you can't do this, right? So you have recourse to the constitution, to your constitutional rights, not just against the federal government, but also against your state governments.
Speaker 1 00:06:43 But then the question hubs to what rights are enforced by this, uh, what rights are protected by due process, uh, substance due process. And that's where we get to this issue of UN enumerated rights. So that is in the ninth amendment. And the ninth amendment says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. So this is, you know, James Madison insisted on this. So he originally opposed the idea of even writing a bill of rights because he says, well, if you write a bill of rights, if you say these certain things are protected, you government can't do that. The assumption will be that it's only those things and outside of that government can do whatever it likes. And he didn't want that implication. Now, Thomas Jefferson then convinced him, no, we have to have a bill of rights, cuz if you don't write any guarantees at all, the government will just assume it can do whatever it likes on every issue.
Speaker 1 00:07:36 Uh, so Jefferson talked him into it, but specifically to head off that implication. Cause you know, after initially opposing it, uh, Madison wrote the bill of rights and as, as speaker of the house in the first Congress and he, so he, he wrote into it the ninth amendment saying, Hey, look, dumies, you know, future people who wanna interpret this differently. I wanted you to make sure that you know, that the rights guaranteed in the bill of rights are not the only rights we have, that there are, there are and might be others. And so the paradox of the ninth amendment though, is very explicitly guarantees protection for these, you know, the ninth amendment has this very explicit guarantee for protection of rights that the constitution does not actually explicitly name. So it's like, they're the constitution protects these rights that they are, but they're out there and we want that they're out there.
Speaker 1 00:08:29 So that raises the question. How do you then tell what those rights are? Right. So, um, and, and there's lots of good place that, oh, well, you know, to force the ninth amendment is impossible because it just invites the judges to pull whatever they want out of a hat and say, oh, that's a right. Uh, because it doesn't name what they are. So the best short summary that I've been, it was given to me years ago by a friend of mine, a guy named Jack Wakeland occasionally quoted him in my articles. He's an old friend and sends me, pings me all these, uh, interesting comments throughout the day. And he, he said the best version of the best sermon of the ninth amendment, which is the ninth amendment amounts to the phrase, insert political philosophy here. Right? So when you say we're gonna, that are unen enumerated, it invites the judges to refer to some political philosophy.
Speaker 1 00:09:18 That's going to explain what is the source of rights? What rights do we have rights? So to do that, you have to refer to a political philosophy. So it wasn't an invitation for just, you know, any subjective feeling that you have. And in fact, the founders knew exactly which, uh, political philosophy they wanted us to insert in there, right? They want, it was the enlightenment era, natural rights theory, you know, from John Locke and Cheron Sydney and Hugo gro. And this, this whole, this whole group of guys who had developed this natural rights theory and the couple hundred years before the founding of America and these ideas were, you know, pretty universally accepted among the, uh, among the founders. And they assumed that we would continue to accept them and use them. And there's the problem cause we didn't. So by late 19th, early 20th century, the progressive movements and all of that, the natural rights theory had basically been dropped as a consequence for a while.
Speaker 1 00:10:14 We actually dropped the idea of substance due process and this idea of enumerated rights. It largely disappeared for the country's jurisprudence for a couple of decades. And then when it CA started to come back and creep back into the fifties and sixties, but when it did that original natural rights theory had basically been dropped by both sides by the conservative and the, the left. And so what did people have in its place? Well, for the left, the working standard for what's our political philosophy to tell what rights we have was social consensus. You know, your rights are given to you, they're grant given to you by society. And so, uh, uh, if society changes, if it changes its views, it changes what grant rights it decides to give to you. And so that's how you get these things. There's a famous, uh, Supreme court ruling for the fifties.
Speaker 1 00:11:06 The one that sort of considered the point of the living constitution theory, evolving standards of decency that mark the progress of a maturing society. So as society matures and evolves, because it's the thing that, that grants you, your rights as the society matures and evolves or, and evolves the rights that you have can change and new rights, you could come up with new rights that you didn't have before because society has evolved. All right. So the right hate set, they think that's totally subjective. Lucy goosey because, you know, frankly in practice, what it meant is a justice sitting on the Supreme court, you know, pulls his friends at the last cocktail party he was at. And then from that decides what society thinks your rights should be. And, you know, it's even representative of an actual social consensus, it's representative of the particular social circles in which he moves.
Speaker 1 00:12:00 Um, so they're right. Hated the subjectivism of that. So their answer though, and this is where dos really gives us the answer. Their answer is tradition and that's where, uh, this Dobbs, I, I finally sort of really grasped a lot of that in reading this do's decision. Now I'm gonna quote here from the decision, uh, he says justice Alito says the due process clause of the 14th amendment has been held to guarantee some rights that are not mentioned in the constitution. That's the UN enumerated rights, but he says any such right. Must be deeply rooted in this nation's history and tradition. And he says, and another quote, implicit in the concept of ordered Liberty, he's actually got two things there as a standard for what to write one that we would recognize from the national rights theory that you could say a right is implicit in the of Liberty, right?
Speaker 1 00:12:58 So if something's implicit in the concept of Liberty then mean, that means it comes from the idea of national rights implies that you have that a certain rights that hadn't been expl that hadn't been set down and enumerated before, but it's implied by the very concept of rights, but that's not the part he's focused on. He focuses on the part that's deeply rooted in Thery and tradition. And that really becomes his only standard for what, how do you determine what brights people have? They have to be deeply rooted in the nation's history and tradition. So then he goes through a whole thing saying, well, historically, traditionally, uh, out there have been lots of laws and lots of bands against abortion. He goes back and quotes, uh, Edward, sir, Edward K, a great, uh, 17th century, British ju he surveys the history of, uh, English common law. He goes and looks at the laws that were on the books, uh, prior to the past, the, the, the time at the fourth amendment 14th amendment was passed.
Speaker 1 00:13:59 And he says there are laws of different bans in abortion. Therefore the right to abortion is not deeply rooted in history and tradition. And therefore, you know, it doesn't exist. Basically if I can't find it in history tradition, uh, then I, then it doesn't exist. Now, the problem with this, the basic problems I see is that there's lots of things that were tradit, that others, when they created a, a new society based on individual rights, there's lots of things that they threw out that were deeply traditional. So, you know, deeply rid of tradition, uh, circa 1776 would've meant monarchy. It would've meant, um, an established church, very common all across, you know, not at every, in a lot of different, there was an established church. It would've meant slavery, which of course is one of the most contentious things that came out of the, the American Revolut.
Speaker 1 00:15:00 Uh, and, uh, also another example is entail. And primogeniture now long story short. These were, these were rules for laws with inheritance of property. They're basically the ones that said the eldest son inherits the property and the biggest estate won't be broken up by having it be inherited by a bunch of different by, you know, 16 by if you have six children, you're, you're inherited a state, won't be broken up in six parts. It will all stay large and depressive. And if the family name will go on being very wealthy, and if you're the second son, you're outta luck, uh <laugh> because you, you don't get any of the inheritance, but that's that, you know, it's a leftover from <inaudible> cratic system where you had to make sure that the first son who carried on the title, uh, theocratic title had enough money and enough land to match the title.
Speaker 1 00:15:51 So one of the first things that happened when the red me Colonel vision happened is I think Georgia was the first to do it. I just saw this today. It's like on this date in 1777, Georgia outlawed entail on premature, right? But this is something that was deeply rooted in tradition prior to that. So the problem with this is that there are plenty of rights. It, it, well, wait, the, the founders, when they adopted a flaw individual rights, uh, were doing something that's actually radical, that broke from tradition in all sorts of ways. So the fact, the mere fact that something was traditional not necessarily mean that it was consistent with individual rights. There were lots of things that had to be changed to make them consistent with individual rights. And I want not getting into laws and corporation, which major aspect of what was changed.
Speaker 1 00:16:40 So the problem is that if you make tradition into your standard for what are the UN enumerated rights what's going to happen is there's all sorts of rights that you're not going to recognize. And that's the last point I wanna make is that Roe V. Wade, we think of it as being this big issue that stands on its own, cuz everybody's been shouting at each other about it for, for 50 years, but it actually was part of this constellation of rulings that happened in the fifties and sixties over a period, you know, in the middle of the 20th century. And there were rulings that had to do with the same complex of issues it had to do with so Griswold versus Connecticut in 1965, struck down bans on contraceptives, loving versus Virginia, but by, by the way for a court case ever, because, you know, it's just like the, the name of the case basically tells you who's the good guy is right loving versus Virginia, uh, struck down bans in interracial marriage.
Speaker 1 00:17:35 There were a couple other rulings in there, well known that protections against involuntary medical procedures. And then at the very tail end of this, there was Lawrence versus Texas in 2003 that basically, uh, struck down state anti sodomy laws. So basically protecting homosexuals from being, uh, from being prosecuted. Uh, so you have this whole series of law of ruling related to matters of sex, marriage, procreation and medical treatment. And Roe V wait is right there at the intersection of all those issues. So the problem this raises is that if you decide that none of that, the, the right to abortion, the Roe V Wade, the right to abortion doesn't exist because it's not deeply rooted in tradition. Well, you know, laws, criminalizing, homosexuality are deeply rooted in tradition laws, banning interracial marriage are deeply rooted in tradition. If you throw out Roe V Wade on this reasoning, what other things are you going to end up having to throw out?
Speaker 1 00:18:36 And there's even people out there. I mean, there's a Indiana Senator Mike Braun when our record in March saying that, um, if Roe was overturned that maybe interracial marriage would also have to be left to the states to decide. So, you know, you've opened this giant can of worms here by getting rid of this idea of protection of UN enumerated rights. And I think fundamentally though, the big thing is that the big problem is that we had the, you know, UN enumerated rights, an idea that's based on having a political philosophy that tells you what rights are, where they come from, that defines individual rights. And what happened is we lost that political philosophy we gave up on it. We abandoned it, uh, sometime at the end of the 19th century, early 20th century, and like flailing around with, without having that philosophy to be the grounding for our cons, our interpretation of the constitution. So that's my presentation. It went longer than I expected, but, uh, let's open it up for discussion contention, uh, disagreement, etc agreement, et cetera.
Speaker 0 00:19:41 Great. Thank you. Uh, Rob, um, I don't know if, if, uh, either Scott or Roger wants to jump in or if you're in a place where you can talk, but otherwise, uh, to everyone in the audience, please raise your hand. Um, we, we talked a bit about the law and, um, the justification, but, uh, also I wanna get into, uh, the issue of abortion itself and Iran's views on it. So, um, yeah, bill,
Speaker 2 00:20:18 If I can pop in real quick.
Speaker 0 00:20:20 Yeah, go
Speaker 2 00:20:20 Ahead. I just wanted to bring up the question that I brought up the other day that, you know, can the argument for individual rights be used to, uh, almost kill laboratories of democracy or the nature of federalism? You know, it's like if, if gambling is part of trading, I mean, isn't that a right? Or so how can any locality outlaw it?
Speaker 1 00:20:42 Yeah, well, I, yeah, I do think there is that issue that if we took enumerated rights more seriously, along with incorporation, I think it would, it would sort of override the laboratories of democracy a little bit, but I think that's gonna be necessary for some things like, you know, would you say we should have laboratories of democracy when it comes to, uh, establishment of religion, right? Let every, let every state choose its own denomination to make into the official church. Well, you know, that would obviously be chaos, I think specifically. And I've actually got an article in the works, one of my next ones probably next week, uh, called the case against federalism. Cuz I, this argument that we should have federalism, we should have more things going on on the state and local level on fewer things going on in the, on the federal level is one that I generally agree with.
Speaker 1 00:21:28 I think there's a lot of good things to it, but I think Roe V Wade and the right to abortion is one where federalism is gonna cause holy hell. So I wanna sort of take this, think this out for a second, which is the problem is you're gonna have something that is vitally important to some people that is totally legal in one state and possibly a capital offense, a hanging offense in another state. So somebody put forth a scenario like this, that you have, uh, two roommates in college. And, and the one, one of the girls is, is, goes on a date and the guy rapes her and she gets pregnant. So she wants to have an abortion. Her roommate they're, they're in, they're a university in Texas. Her roommate is from Colorado where abortion is totally legal. And she's got one of these morning after pills, right?
Speaker 1 00:22:23 The, uh, uh, chemical abor patient that basically cause a, an abortion in the first few days of pregnancy. And so she has one of these just in case she gives it to her roommate and her roommate takes it and aborts the Fe and aborts the fetus. Well, they have both under Texas law. You know, it's something that's totally legal in Colorado. The roommate got it in Colorado, brought it down here, but in Texas, it's a capital offense to do it, at least according, you know, if, if the laws, some of the laws that are being planned are passed. So you have these cases where it, it raises this almost kind of dread Scott like level of conflict, right? Where you have something gets totally legal in one area, totally illegal in the other. And you have, you know, people's lives are very much at stake and you have totally different rules for different states.
Speaker 1 00:23:11 And you even have, in this case, I think Missouri has passed a law, making it a crime to help someone leave the state in order to get an abortion. And that's the, you know, that's the real UN hell that's going to be unleashed here. That, that destroys the federal system actually is when you have that becomes illegal to travel from one state to another to do something. So I think this is a case where in a way, you know, uh, throwing abortion to the states may actually destroy and set the states against one another in a way that is incompatible the federal system. So I just wanna throw that out as a consideration to think about cuz that we may be facing that situation in a year or two.
Speaker 2 00:23:53 That is a fascinating angle. Um, well we wanna encourage everyone to share the room and uh, we want to go to Roger. Thank you for your patience for my question. Go ahead and, uh, thank you for joining us.
Speaker 3 00:24:06 Yeah, no, thanks for doing this room. Um, I've been waiting for, uh, an intelligent conversation about this topic. Clubhouse is good for good for all topics, not, uh, not, not good for all intelligent conversations. So I appreciate the Atlas society bringing this forward. So, um, my question for you, Rob, would be, um, I I'd like to get your thoughts on like medical technology that would allow the concept of eviction to, uh, you know, to play out I'd, I'd, I'd love to, I'd love to figure out like what, what your take would be and just real briefly, like my assessment, is it, it, it seems to address the, the spoken claims that, that you hear on both sides. One side says bodily autonomy, uh, you know, is a violation of, you know, the non-aggression principle and the other side, essentially, they don't use these words. These are words that I use, but, uh, to, to, to translate what it is that their grievance is.
Speaker 3 00:25:07 And the other side would say that it's a, it's a violation of the, uh, non-aggression principle to, uh, to, you know, to take the life of the fetus and by, uh, and then when we look at the legal, uh, you know, language around viability, is it the lower that we get that viability number to be the more moot of a point abortion becomes Le at least legally. And so I, I guess I, I'd just really like to get your thoughts, Rob, on, on where we're at with making this a reality. And philosophically, if you think that this could, uh, you, you know, kind of bring the, the, the, the various sides together.
Speaker 1 00:25:44 Wait, so what is the thing eviction? You said
Speaker 3 00:25:46 What's that? Yeah, so basically it would, it would allow it, it, so it would allow you to remove the fetus, essentially evict the fetus from the womb. Uh, but you do not have the, the legal right to terminate the life of the fetus and, oh,
Speaker 1 00:26:03 In other words, evict it to an artificial womb or to implant in somebody else.
Speaker 3 00:26:07 Correct. Yep. And, and, and so for, in order for this to work, we're gonna need, uh, to improve on artificial womb technology, and we're going to need to make it widely accessible and then be able to answer all of the externalities of what comes next. <laugh> when, when you have all of these, um, uh, babysitter grown in tanks
Speaker 1 00:26:28 <laugh> well, yeah, I mean, there, there I, there are, uh, no shortage of adoptive parents who want to adopt, so that's not the issue, but, um, you know, here, here, you know, you get to the fact that, so I, I thought that's where you're going. So here, here, you it's a bit pie in the sky. So I don't, I think we're still a long way from being able to do that. They're talking about artificial wounds, but you know, these things are usually like, somebody will say, oh, it's five years away. And, and it's, it's gonna be a little bit like fusion technology where it's the, the Joe old joke on that is it's 15 years away and always will be, um, they're a, um, there are a lot of complications with making something like that happen, or even with just, you know, removing a fetus at, at any stage and having it survive, uh, is gonna take a very, very long time to be able to do, uh, because, you know, fetus are very delicate things.
Speaker 1 00:27:18 They don't like to be disturbed or moved. The number of miscarriages that people have is an indication of that. But this also goes to this other issue. I said, this is, you know, Roe V. Wade is part of a complex, uh, this sort of constellation of other rulings related to this. And a lot of them had to do with the idea of your right, not to have medical procedures performed on you without your permission, without your consent. And that's definitely gonna go to that because if they say to you, well, you will just, you know, you don't have to take the baby to term, but you have to consent to have this medical procedure performed on you in which this fetus will be removed. And also in which something that is genetically yours, something that's part of your body is being taken and grown somewhere.
Speaker 1 00:27:59 So let's say, you know, let's take this example of the woman who's raped and wants to get an abortion, right. So she has to say, wait a minute, you mean some child that is part me and part, my rapist DNA is going to grow and I'm and be, and go be, be out there in the world, you know, does she ever right? Not to say, I don't want that to happen. Well, I think she does. So it really goes to, I think you can't short circuit, the issue it really goes to. So here's what we have to get to is the other, the substantive issue on abortion, per se, not just the legal arguments about it, but the substance of issue of abortion, which is, is this a child that has rights? You know, is this a human being that has rights, the fetus, and here I'm gonna, I think my view is gonna be maybe slightly different from iron Ranzo.
Speaker 1 00:28:41 I think not that much different. Uh, I think what makes this issue BA basically her view was a fetus is a potential human being. It's not an actual human being, right? So we can say that, uh, while a baby wants, it's born, wants it out in the world, it's a separate individual. This is an actual human being and it has rights and you can't kill it. But you know, when it, at the beginning, at the moment it's conception, it's just a few cells. It's not a human being. It is potential. It is go, it will grow into human being and fall out to continue, but it's only potentially a human being. And so therefore it doesn't have rights. Now I would add to that. And like I said, I think this is slightly different than the way iron ran put it. But I think I asked some evidence that she thought something of the same way, which is that the thing that makes this a difficult question is, and it's a continuum, right?
Speaker 1 00:29:32 So from conception to birth, there is a continuum. And on one end of the continuum is, you know, a, a blasty that's like four cells that is clearly not a human being. And on the other end of the spectrum is a nine month old baby. That's still in the womb, but is gonna be born any day now, which is so fully formed. It will totally survive outside of, outside of the womb. It is already a fully formed baby. It's, it's, it's essentially indistinguishable, you know, a few days development away from being an actual, an actual child. So that's why you have this continuum. And that's what makes it a difficult question, cuz then you end up saying as with all continuums, right? You end up having to make this judgment of, well, where does one part of the continuum end? You know, there's no one spot where you can definitively say, it's like, you know, there's a, you could say there's a difference between noon and midnight, but it asks at any moment in there to say, well, you know, where's the switch that flips that says it's dark versus it's light.
Speaker 1 00:30:33 You know, it's, it's this gradual thing that happens at, you know, at sunset that it gets darker and darker and darker than that something, oh wait, it's it's it's it's nice. But there was no one second there where a flip switched and, and you could tell it's like that and that's what makes this difficult. So what I would say is by the time you're in the third trimester, right? The baby, from what I know scientifically, you know, from having from watching my own kids develop, uh, in utero is that by the time you're in the third trimester, basically all the development has happened to the child and it's just growing in size and strength, right. It's becoming more fit to emerge out into the environment, but all the parts are there and everything works. So in the third trimester, it would be, I think imoral to, to perform an abortion, absent some over some major overriding crisis kind of scenario.
Speaker 1 00:31:24 Right? So, um, you know, it's, it's, it's, it's, it's threatened to the life. You know, the mother gets a cancer diagnosis and they can treat the cancer. But if they treat the cancer, if they treat the cancer, it will kill the baby. If they don't treat the cancer, she'll die. Right? So you have this thing where there's a, a direct trade off of the life of the mother versus the life of the, of the, of the fetus in a situation like that, it would be acceptable and, and moral if she made that choice. And some people have not made that choice. Some people have said, okay, put me in a coma, deliver the child and I'm going to die. So it depends on your values and what, how important that is to you. But, uh, it would be moral to, to P abortion, but obviously generally it would be imoral to do so in the third trimester.
Speaker 1 00:32:05 Whereas in the first trimester, easy case, this is not developed enough to have rights as a human being. And then somewhere in the middle is where you'd have the cutoff. Now I don't think government should get evolved until birth because, well, basically frankly, because of what we're seeing right now, which is there are a lot of religious fanatics out there, right? And if you give the government the ability to make these sort of decisions about, well, you're in the third trimester, let me see if I will decide whether your case is important enough, there's gonna be some religious zealot. Who's gonna say no, just because of his, you know, he's imposing his religious beliefs. Uh, I would like to make it a matter of medical ethics, you know, that, that a doctor, it was considered unethical for a doctor to perform a late term abortion, absent some, you know, emergency conditions. Uh, and that's pretty much how it works right now, frankly, there are very few people who, who get those late term abortions, very few doctors who perform them. Uh, there have been a few, you know, uh, garish cases where you had somebody who just totally ignored all the rules. Uh, but it it's a rare thing. Anyway. I hope, hope that's a long rambling answer to a very simple question.
Speaker 2 00:33:14 Thank you. Appreciate interrupt. Thanks a lot. Uh, bill, thank you for waiting. Are you able to unmute yourself bill? All right. Well, uh, while you're trying to figure that out, we'll go ahead to Brian.
Speaker 4 00:33:33 Hey, you gave a great answer there, Rob, and I'm afraid that my question is, is very similar. Um, but I'll, I'll try to make it a little distinctive. So if so, if we think of, you know, objective reality, serving as the groundwork for, uh, objective morality and we imagine someone being morally ideal or perfect, um, I, I'm trying to piece that together, you know, because we're talking about mm-hmm, <affirmative> the biological process a start and, you know, and to life and, you know, I think both sides of the argument, you know, for and against abortion tried to claim the moral high ground. And so I, I'm trying to, uh, maybe I, I'm trying to ask you, what is the process by which someone would, um, make that moral claim, you know, not the claim itself maybe, but how would someone independently say, this is how I get to, you know, the moral outcome. If, if I look at, you know, moral, real realism as my starting point or my framework does that, that's a terrible way to frame it. But
Speaker 1 00:34:54 I think what you're getting at is basically what would the moral decision tree look like for a woman who getting an abortion?
Speaker 4 00:35:01 Yes, yes.
Speaker 1 00:35:02 Yeah. What would be the legitimate way she would approach the question to arrive at that decision?
Speaker 4 00:35:09 Yeah, because like I said, I think both sides claim to hold the moral high ground. So I'm wondering how, you know, you can reconcile that or how someone objectively would say, this is the process one side, one side used and therefore has the more compelling or coherent argument, you know?
Speaker 1 00:35:29 Okay. That's a good question. Now I, I will preface this all by saying that I obviously am not a woman <laugh>. And so I'm talking about how someone would make a decision in a circumstance that I am never going to have to face. Right. So I just wanna have that, you know, I think that's part of the equation here now. I don't, I'm not the type who said, oh, only a woman can ever say anything about this. Um, but I think you have to acknowledge the fact that as a man, it's, it is, you know, talk us relatively cheap for me. Uh, does that make sense on this subject? Um, although it, it, it comes up actually in, in, I'll talk about the way it comes up for, in my, in my situation, because I'm married to a woman and, and, you know, I I've had two children, so she's been pregnant and, uh, and, uh, you know, we've had to face the question of, well, what happens if right, what happens if there's some horrible medical emergency and we have to make that decision, right.
Speaker 1 00:36:23 So I'm gonna take that as the first level too, which is that any woman who gets pregnant, you know, even if it's a wanted pregnancy, even if it's, uh, you know, it, it totally not planning to, uh, to, to abort the fetus that you do have to face the fact that things can go wrong in this process. Uh, things can go medically wrong and you're gonna have to make a really tough decision. Uh, and you may have to make one of those decisions of it's with life of me or the life of the child. And, uh, at that point, and there may, you know, it may not be a clear cut one, either. It may be, well, there's a risk, but maybe the risk won't pan out and you have, yeah, that's what makes the decision really tough, you know, am I doing this unnecessarily?
Speaker 1 00:37:05 So what I will say about that is, you know, the part that I know of as something I've experienced is that, you know, having the, the wife who's pregnant and worrying about her life and her wellbeing, and wondering if it will there be this situation where there might be a need medical need, that something goes wrong. If there's a medical need to make this tough decision, and I can tell you, I really would not want <laugh>. I would really be outraged by the idea of some blue nose bureaucrat, especially a religious sell, uh, somebody with, you know, with their own distinct views on this coming in between and making that decision and, and making the trade offs on the life of my wife against, you know, uh, a and making that, taking that risk with her life. So that's one level of it. Now, the second level though, is let's take a look at this idea of, you know, you have the young woman who gets pregnant unexpectedly, uh, does not need, you know, does not, uh, wants to have a child and decides to have an abortion, right.
Speaker 1 00:38:05 So I would say that, first of all, if we're talking about a responsible and moral person, the first part of this, uh, uh, the context here is going to be that, you know, a responsible person would've thought this out ahead of time would not have taken unnecessary risks of getting pregnant. Cetera. You know, we live in an era era of widely available and highly effective birth control. So they would not, you know, it would not be a situation they would've entered into sort of casually or ACC. You know, if it's an accident, it is a real genuine accident, right? It's not through carelessness or through, um, not taking a total failure to take precautions, but there are things that can happen. You know, not every former birth control is a hundred percent effective. Um, sometimes you know, there, there are situations where you maybe accidentally not take all the precautions that you should, right?
Speaker 1 00:38:59 So let's say that this young woman ends up at the position of realizing she's pregnant. Well, the other thing that's gonna happen is she's going to realize it relatively soon, right? She's not going to realize it when she's 25 weeks pregnant, she's gonna realize it when she's 12 weeks pregnant or 10 weeks pregnant or, or, or somewhere in there, maybe not six weeks is that's too early, but more like eight to 12. So again, it's gonna be first trimester. And at that point, I would say the child is a potential and you might, you know, most women do actually want to have a child at some point. So there will probably be a degree of tragedy in the sense of knowing that you could have this child, but also knowing that you are not prepared at that point. You know, she's not married, she's not, doesn't have the support system.
Speaker 1 00:39:40 She has she's at school. She has a career or whatever that she has reasons why there's too much going on in her life, that she cannot feel she cannot responsibly care for a child that there's, it's not going to be something that can, that's gonna be possible in within her context of her life. In that case, I would say, yes, you know, that you have the fact that this is a potential, it it's something that could develop into a child, but it's not there yet. So you would have, you know, it would be more ultimate that decision now, as you get farther along then, the thing is because it becomes more developed into a child. I think that's where at some point it, then the, the calculation flips that you have already decided to let this thing grow to a certain point, to let the fetus grow to a certain point where it is becoming a child.
Speaker 1 00:40:31 And at that point it becomes irresponsible or, um, uh, um, what's the word I'm looking for? Uh, or it becomes irresponsible and somewhat arbitrary or subjective to then decide, oh, I'm just going to get rid of this, having, let it come get this far, you know, you've reached the point where you had to make the decision, uh, earlier on and making the decision and the third trimester, you know, assuming you're doing it arbitrarily for assuming you're doing it without some countervailing, you know, medical emergency type of reason, that would be imoral. But, uh, you know, again, that's a difficult DEC. I, I think one thing about the decision tree is there's this whole sort of shout your abortion thing where we should celebrate abortions and abortions are great. And I don't think any, you know, most people who have had abortions have not really thought about it that way, that, that it was a great thing. Uh <laugh> they, there has to be some elements of tragedy in, in it, every time it happens, because, you know, this is something that could have been, uh, uh, a child that might have come into existence that the lost potential has gotta be part of the equation and any decision on that. So that's the best I can do as a man talking about this, to talk about how that decision would be made.
Speaker 2 00:41:49 All right. Very good. Uh, thanks bill.
Speaker 5 00:41:54 Am I here?
Speaker 2 00:41:55 Yes, we can hear you.
Speaker 5 00:41:57 Okay, good. I just restarted my phone, so I, I figured that solved the problem. All right. Uh, a couple of points, uh, before I actually begin with my major thing, uh, implicit in the concept of ordered Liberty is very, very restrictive. Um, you know, for example, um, you know, the, uh, grand jury is not one of those, uh, I'm not even sure the jury is. So even if he had not emphasized, um, uh, tradition, he probably could have said, well, it's also not implicit in the concept of ordered Liberty, but that actually, wasn't why I wanted to raise my, why I raised my hand. Um, we, as Objectivists do not have a good theory of rights for anything but healthy adults. I mean, that's unfortunate, but it's the reality we I've seen of, you know, that paper by Thomas, for example, about, uh, children's rights.
Speaker 5 00:42:50 But I would say there is no really firm consensus on why children have rights. We all know they do, but what is the reason for it? And if we can't say this about children who are actually born, what is our actual argument? Do we actually have an argument for saying, uh, uh, that those that are not yet born have any kind of rights? I think that that is a thing that as Objectivists, we might want to focus on, because until then we are basically no different from anybody else in this argument saying, this is our feeling <laugh>, but, uh, you know, you know, but we don't actually have a F firm foundation for it, but that's what we believe. And that's what everybody else can say.
Speaker 1 00:43:36 Yeah, I, I've got, um, I've got some thoughts on that and I think that's an interesting, that is a very good question by the way. And I think I, I have some thoughts on that. I don't know, I haven't surveyed the whole field of what objectives have written on it, but I think you're right. Not a lot has been written on it. I've written a little bit. Um, if you go on my site to trinky letter, doac.com, uh, and you do a search for go GOs, N E LLL, this is the guy, the abortion doctor who was performing late. Well, he, he performed abortions that were so late term that they were basically in infanticide and he ended up going on trial for it. Uh, and he's now in prison, um, a guy totally without any standards or, or principles at all. I mean, he was a, really, a really sleazy guy who basically found late term abortions to be his niche, uh, because, because he didn't care about the principles or the, or the medical ethics of it anyway.
Speaker 1 00:44:25 Uh, but that brought up this question. So I, I, I used that as an opportunity to sort of hash out some of this, including that question of why, why do children have rights? So I wanna get to that in a second. I do wanna mention, though, I'm glad you mentioned the concept of ordered Liberty. Now. I said, implicit in the concept of Liberty, I didn't say ordered Liberty, cuz ordered Liberty is kind of a conservative cash phrase. And I think it comes back, it comes from Edmond Burke or somebody like that. It doesn't come from the founders. It comes from, you know, European conservatives and order Liberty is this sort of compromise between government control and individual Liberty that conservatives like to glam onto. So I just wanna acknowledge it was a bell and a little side issue. I didn't want to bring up earlier because it's, it's too much of a side issue, but yes, you're right.
Speaker 1 00:45:09 Order Liberty is this very restrictive view of, of Liberty. Um, but okay. So why do children have rights? So I've done some thinking on this and my view on it is this that, uh, well the problem for objectiveism, I won't say it's a problem for objectiveism, but it's a, it's the dilemma or the, the question that we have to start with is that our philosophy of rights does stem from an adult context in the sense that the, the origin of rights for us is rationality it's it's that humans possess the capacity to reason. And because the CAPA possess the capacity of reason, therefore the appropriate way to deal with another person is through reason through persuasion, uh, through consent, you know, you have to convince them, you have to persuade them to agree with you and, and to act, and that you cannot treat a human being the way you would an animal, all our dealings with animals, or most of them are through coercion.
Speaker 1 00:46:02 You know, you know, like there, there's only so much coercion I could do with my cats, but, um, you know, we try to use affection and, and things like that. But, but you don't use reason to persuade, to, to deal with animals. You don't use consent, you don't have discussions with them and try to get them to agree with you. You know, you use punishment to rewards, uh, and you use coercion to deal with, with the animal kingdom because they don't possess the faculty of reason. So that's the fundamental case for reason. Well, the problem is that, or the, I will say the problem, I hate to phrase the problem cuz it implies there's no solution. The, the question then is how then does that apply to an infant, which when it's first born, can, you know, can can't really even perceive objects much less engaged in a, in a, in a, in a Capac, in a, in a process of reasoning?
Speaker 1 00:46:49 Well, I would say that the rights of the child are necessities for the rights of the adult. There's no way an adult can have rights unless he all has the ability to, to be born and to grow up and to live to the point where he's capable of acquiring reason. Right? So human, you know, reason is such a complex mental faculty that it takes 18 to 25 years to properly develop, right? It doesn't really show up in a, in, in a, in a controlled way until they're like, you know, 10 or 12 years old. It, it doesn't show up in a mature way until they're 18 to 25 years old. So it, because reason is such a complex mental process requires such a long stage of development. You have to protect that stage of development to get to the point where you can have a rational being that has full rights.
Speaker 1 00:47:44 Now, the solution to that, which is I think is fairly obvious and, and commonplace is we all know children don't have the same rights as, uh, adults. You know, they don't have the right to decide when to brush their teeth or, uh, whether to be potty trained or, you know, what they're gonna eat for dinner. They acquire more rights as they get older, as they develop the capacity for reason, and the ability to, um, to, to make their own decisions in a responsible way. So they, you know, by the time they're 18, they have the full rights. Uh, they ought to have the full rights. You know, some people say, oh, it's 21 for you. Can't have alcohol until you're 21. I think that's a little paternalistic, but by the time they're 18, in most respects, they have full rights to make decisions about their own lives.
Speaker 1 00:48:30 Uh, but that, because they reached the age where they it's literally called the age of reason, right. The age where they can use reason to make their own decisions, but they have a curtailed version, a their, a child, a childlike version of rights from the very beginning to protect the process of getting up to age 18, where you can use reason. So, you know, a, an infant has the, you know, you can't kill an infant, uh, you can't. And in fact, I think there, the, the a child's rights would include, especially at the early years, a responsibility on the part of the parent to care for it. You know, you have like, her child has a right to be cared for, to be, to be fed, to be clothed. Um, you know, if it is at all possible for, uh, the, for the adult, if it is realistically possible for the adult to do so, the child has a right to claim that from the parents, because they decided to, to have the child, uh, and to create it in this state of need.
Speaker 1 00:49:25 So therefore they have to protect it. So rights of children exist to protect the process of development that is necessary to get to the point of a full adult with reason. Now, I guess the question on abortion then would be, does this right to life that begins at birth. Should it begin earlier? Do you have the living thing that has that claim at an earlier point? Should it begin at conception? And theirs will get to the point where I say at, I think there's that continuum, right? That when you have something that's just a cup of cells, or just, you know, just an eight or 10 or 16 cells, that is the embryo, uh, or, or that is just beginning to develop. It doesn't even have human form yet. Then I think you have something that is so still in a potential state so far from actually being brought to term and actually having a, a chance at life that you can say, no, this is not a human being that has a right to life, but by the time you get to the end of the third trimester, you're starting get to that where that's a real, that's a serious question, but I think you have to respect also the existence of that continuum from a few cells that are, that is clearly not a human being to a developed, uh, fetus that's that's, you know, days away from being born.
Speaker 1 00:50:43 That clearly is a human, a fully developed, uh, infant child in, in, in, and that just simply hasn't been delivered yet. So that's, again, I'm trying to deal with a lot of really big issues, but I don't know. What do you think of that description of where the rights of children come from?
Speaker 5 00:51:00 Well, in my view, uh, the difference between the adult and the child can be described in a single word, autonomy, mm-hmm, <affirmative> the capacity to engage in long term direction, rational direction of your life. And that is what children do not have and what adults do have. Um, so in my view, um, the, the precondition of a society is that it has adults that come into of, of a good society, uh, is that it has adults who come into it with autonomy and thus that a child's rights derived, not from the requirements of reason, but of the requirements of developing autonomy, um, which implies a whole bunch of things among other things, if it has caregivers that, that its life be protected by those caregivers, um, and that, uh, um, that certain things it'd be protected from like religion. Um, <laugh> sorry to anybody out there who is religious,
Speaker 2 00:51:59 Huh? Even the woke religion,
Speaker 5 00:52:01 Any, any religion, anything that, anything that says you should not develop into a, an independent person capable of rationality at rationally directing your life. Um, and so those are, those are the, the origins of rights in children. Um, so anyway, that's, but I haven't gone further, uh, uh, backwards to, uh, what would the rights of the, uh, fetus be, except I agree that there is obviously some point where they don't have any,
Speaker 2 00:52:31 Yeah, well, great.
Speaker 1 00:52:32 I'd like to get, but I go ahead, Rob, go ahead. Go ahead. I think we need to go on to whatever the next question is.
Speaker 2 00:52:38 Okay. I just, yeah. I'd like to hear from Liz. Thank you for joining us today.
Speaker 6 00:52:43 Hey, how's it going? Good. Oh, oh, can you hear me? Sorry. Um, yeah, I just sort of have been going around and there's like another abortion room where everyone's bickering. So, uh, this one was a little bit more peaceful. Um, but I had some, I I've had, I have some, some comments on the, on the issue. My, my view on the, um, like the, the pro-life pro-choice issue, um, is sort of complicated, um, as a child adolescent, I was definitely pro-life. Um, we, we don't normally say when we get a tumor that, oh, there's only a couple cells, so it's not quite alive yet. We're not gonna operate <laugh>. Um, so that logic didn't make any sense to me. Um, um, I'm a, I, I am a firm believer in God, but that's another topic. Um, but on the other hand, um, I believe that, um, also, I'm sorry, trying to be organized here.
Speaker 6 00:53:59 Um, cuz I was gonna comment on the children's rights thing too. Yeah. Um, but let me just stick to the topic. Okay. I believe that when a child is conceived, um, that each woman should and her spouse or partner should decide what to do. Um, and the reason I believe that is because I've seen examples of legislation gone bad, where women are being, having forced examinations now we're having to justify whether something is a molestation or a rape or an incest, uh, that, that justifies it. And it's just, it just seems to me like that is, um, very traumatizing and, and we've also dealt with situations like in the seventies where people were using kniting ne needles to, um, puncture their own uteruses and causing internal bleeding. Um, and we could say, well, we are more educated now, but that's, you know, every generation has their level of education.
Speaker 6 00:55:14 I mean, and every generation has their poor and they're less educated. And what if the person who happens to do this happens to be a mother of three and has another child on the way, and doesn't know how she can handle it and has a, has a moment where she, you know, um, it sounds like an emotional argument, but that's kind of why I take the position that I do. Um, the legislation is, is dangerous and I I'm, I'm not really sure where we're going in this country with this, um, regarding the rights of children. I think it's also important because of abuse. Um, when we bring an abusive issue to the table, that child has a right to be treated in a non-abuse way. And the older I get, speaking of adults being rational, I'm 45, I guess. And the older I get, the more I meet people that I find out were molested as children. It's a common thing. I mean, I hate to say that, but it is,
Speaker 2 00:56:22 Well, it it's, it's an issue worth addressing we're down to our last four minutes. Yeah. Just as practical matter. I don't know if you wanna wrap that up into a question or Rob, if you wanna address that,
Speaker 6 00:56:32 That, that's all I wanted to say. I, I, I don't really have a question.
Speaker 1 00:56:36 Yeah. Okay. No, I, I think you, you say it, it sounds like an emotional argument, but sometimes our emotions are pointing us to something that is a fact that we need to take into account. And I think you're absolutely right that the, uh, and I think we're about to see that the enforcement of abortion bans is gonna become incredibly intrusive and it is going to include, you know, the, this sort of scrutiny. And, and, uh, um, I, I remember hearing a story of a, a woman who, uh, had a, I think, a, a miscarriage and, uh, she didn't know she was pregnant. She went in and, you know, she was experiencing bleeding or something like that. And discovered that she she'd had a miscarriage of a child. She didn't know she was pregnant with. And then talked about how, um, when they found out that she had had an abortion before, as a much younger woman, uh, suddenly the tenor of the questions changed and it became very intrusive and very grilling her basically about how, you know, did basically the suspicion that she must have induced this in some way that she must have caused this.
Speaker 1 00:57:34 And so I think you're going to see, you know, these women, young women in very traumatic situations to begin with, um, uh, who were going to end up being subjected to this kind of, um, inquisition as it were, uh, because of the suspicion that, you know, and then with the, not just with the threat that, you know, a, doctor's gonna give you a hard time, but the threat that you could go to jail, you could be prosecuted for this. Um, and you're gonna have ambiguous cases where someone literal, legitimately has a miscarriage, but because there's a suspicion, they have to prove they didn't somehow induce the abortion. Um, I think you're also one of the things I hadn't thought about until recently is that I think you're going to see a huge increase in, in, uh, in false rape claims, right? Because if rape is an exception that's allowed, and you're a young woman who doesn't wanna have that child, and you need to have an excuse to be able to have an abortion claim, you were raped and find some Porsche schlub, some poor guy that you're going to accuse of this and try to make it sick.
Speaker 1 00:58:36 And then the question also becomes if you accuse someone and there's not enough evidence, and sometimes even if it actually happened, it's hard to prove, right? There'd be situations where it's ambiguous and for, there's not a lot of outside evidence, and it's gonna be hard to prove that you were raped if you can't, even if you were raped, if you can't prove it, do you still get to allow to, to claim the exemption? So there's all sorts of horrible problems we're going to end up with, if we start to impose these laws. And then of course the final thing is that forcing or requiring a woman to carry a child to term is a huge imposition on her life. Not just for that nine months, but well beyond it. Right. Um, and that huge and that that's, I think why part of the reason you have to have the right to abortion, at least in the first trimester or trimester and a half or so is because is precisely because the child has a right to be cared for.
Speaker 1 00:59:31 The child has a right to be, the child has a claim against the its parents for its sustenance, for its, for its care, for the rest of its life. That claim shouldn't be put on someone without there being able to make a, a real decision on that and to be able to choose, you know, you know, when I had kids, I chose that I was gonna have to deal with all the stuff I'm dealing with. Um, that I'm kind of in the middle of right now, cuz they're, they're, they're in their teens and, and it's a lot of work. It's a lot of responsibility. So I chose it and I'm glad to do it, but I had, you know, my wife and I, we had that choice and that's one of the reasons I think you have to have that choice early in the pregnancy is precisely because it is such an enormous responsibility. It has such enormous effect on the life of, of the woman who becomes pregnant. All right. So that's, I think that's I'll end there because that's, we're up against our time.
Speaker 2 01:00:22 That's great. Thanks. Uh, for wrapping it up like that. Thanks to everyone who participated. And, uh, I know you'll be talking more about, uh, the Supreme court league and, and this issue at, at 1:00 PM Eastern tomorrow with, uh, Richard Salzman and a special webinar, and you'll both be taking questions. So we're looking forward to that. Um,
Speaker 1 01:00:43 And we'll be great with each other this time.
Speaker 2 01:00:46 <laugh>, let's see how it goes. Uh, but yeah, we look forward to that and we'll see you both at 1:00 PM Eastern tomorrow, thanks to everyone who joined and participated.
Speaker 1 01:00:56 Thanks everyone.
