Podcast appearances and mentions of justice blackmun

This Day in Legal History: Georgia v. McCollumOn June 18, 1992, the U.S. Supreme Court issued a landmark decision in Georgia v. McCollum, 505 U.S. 42 (1992), holding that criminal defendants cannot use peremptory challenges to exclude jurors on the basis of race. This decision extended the logic of Batson v. Kentucky—which barred prosecutors from racially discriminatory jury strikes—to defense attorneys, ensuring both sides are bound by the Equal Protection Clause. The case involved white defendants in Georgia who sought to remove Black jurors, prompting the state to challenge the defense's strikes as racially biased.The Court, in a 7–2 opinion written by Justice Blackmun, reasoned that racial discrimination in jury selection, regardless of the source, undermines public confidence in the justice system and the constitutional guarantee of a fair trial. It emphasized that the courtroom is not a private forum and that all participants—prosecutors, defense attorneys, and judges—must adhere to constitutional principles.Importantly, the decision addressed the state action requirement, acknowledging that while defense attorneys are not state actors in the traditional sense, their participation in the jury selection process is conducted under judicial supervision and is thus attributable to the state. This broadened the scope of equal protection enforcement in criminal proceedings.The ruling was a major step toward eradicating racial bias in the judicial process, reinforcing that justice must not only be impartial but also be perceived as such. By holding defense attorneys to the same standard as prosecutors, the Court ensured that the integrity of jury selection is preserved across the board. The decision also highlighted the evolving understanding of the judiciary's role in preventing systemic discrimination, even in adversarial settings.Georgia v. McCollum remains a critical precedent in both constitutional law and criminal procedure, illustrating the Court's commitment to fairness in one of the most fundamental aspects of the legal system—trial by jury.U.S. District Judge Julia Kobick expanded a prior injunction, blocking the Trump administration's passport policy that restricted transgender, nonbinary, and intersex individuals from obtaining passports reflecting their gender identity. Kobick found that the State Department's revised policy—mandating passports list only “biological” sex at birth—likely violated the Fifth Amendment by discriminating on the basis of sex and reflecting irrational bias.Initially, the injunction applied only to six plaintiffs, but Kobick's ruling now grants class-action status, halting enforcement of the policy nationwide. The policy stems from an executive order signed by Trump after returning to office in January 2025, directing all federal agencies to recognize only two sexes and abandon the gender marker flexibility introduced under the Biden administration in 2022.The ruling marks a legal setback for the administration's effort to reimpose binary sex classifications across federal documents. The ACLU, representing the plaintiffs, called it a critical win for transgender rights. The White House condemned the ruling as judicial overreach. The broader case remains ongoing.US judge blocks Trump passport policy targeting transgender people | ReutersEducational toy company Learning Resources petitioned the U.S. Supreme Court to take up its challenge to President Donald Trump's tariffs before lower court appeals conclude. The company argues that Trump's use of the International Emergency Economic Powers Act (IEEPA) to impose broad tariffs is unconstitutional and economically damaging, citing a May 29 district court ruling that found the tariffs illegal. That decision, however, is currently stayed pending appeal.Learning Resources' CEO, Rick Woldenberg, warned that delaying Supreme Court review could cost American businesses up to $150 billion due to ongoing tariff-related costs. He described the tariffs as a hidden tax and accused the government of forcing importers to act as involuntary tax collectors.Two federal courts have already ruled against Trump's interpretation of IEEPA, a law historically used for targeted sanctions, not general trade policy. The administration defends the tariffs as a legal response to national emergencies like trade imbalances and drug trafficking, though critics say the justification is legally thin and economically harmful.While rare, the Supreme Court has expedited cases of national significance in the past, such as Biden's student loan forgiveness plan. A key appeals court hearing on Trump's tariff authority is scheduled for July 31.Small business seeks early Supreme Court review of Trump's tariffs | ReutersA federal judge has also temporarily blocked the Trump administration from enforcing a new Department of Defense policy that would cap indirect cost reimbursements to universities at 15%. The move came in response to a lawsuit filed by 12 research institutions—including MIT and Johns Hopkins—as well as major academic associations. These groups argued that the cap violated existing federal regulations and congressional intent.The Department of Defense had framed the policy as a cost-saving measure, with Defense Secretary Pete Hegseth claiming it could save up to $900 million annually. However, universities rely on indirect cost reimbursements to fund infrastructure, staff, and equipment that support research across multiple projects—not just the ones directly funded.The ruling by Judge Brian Murphy, a Biden appointee, mirrors earlier judicial blocks of similar funding cuts proposed by the NIH and Department of Energy. A hearing is scheduled for July 2 to determine whether a longer-term injunction should be issued. The case highlights growing legal resistance to the administration's broader push to reduce federal spending on scientific research.US judge blocks Defense Department from slashing federal research funding | ReutersThe U.S. Supreme Court upheld Tennessee's law banning puberty blockers and hormone therapy for transgender minors in a 6–3 decision that sets a national precedent and effectively greenlights similar restrictions in over 20 states. Writing for the majority, Chief Justice Roberts concluded that the law neither classifies based on sex nor targets transgender status, and thus only required rational basis review—not heightened constitutional scrutiny. The Court accepted Tennessee's framing of the law as neutral and medically cautious, not discriminatory, citing European health policy shifts and purported uncertainty around gender-affirming care as justification.Critics, including the Court's liberal bloc, argued the law does in fact discriminate based on sex and gender identity by banning medical treatment only when it aims to affirm a transgender identity. Justice Sotomayor, in dissent, emphasized that the law's language and application plainly hinge on a minor's “sex as assigned at birth,” drawing troubling parallels to older jurisprudence that permitted covert forms of discrimination under the guise of neutrality.The ruling marks a major rollback of legal protections for transgender youth, ignoring years of precedent that increasingly recognized transgender identity as a constitutionally protected status. By lowering the scrutiny threshold and deferring to legislative “uncertainty,” the Court provided a road map for states to restrict gender-affirming care through general, non-explicitly discriminatory language. The majority's refusal to engage with medical consensus or the real-world impact on transgender youth reveals a troubling judicial posture: one that values legislative deference over individual rights, even when the stakes include physical and psychological harm to a vulnerable group.Supreme Court Upholds Curbs on Treatment for Transgender Minors This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

Who has choice? It's not women! It was only doctors who were authorized to kill, to decide when to kill and what procedures to use. Yes, in Roe v. Wade choice was given only to doctors. In this episode of Life Matters, Brian Johnston explorers the confusion that many individuals have regarding what happened onJanuary 22, 1973. The Roe v. Wade decision is actually quite direct and explicit. There is no right of a woman to a woman's own body. Justice Blackmun, the author of Roe, was not giving women the right to do whatever they want, whenever they want, and especially with a very difficult medical procedure like human abortion. Blackmun was explicit in both Roe, and in particular in Doe v. Bolton - only doctors would be authorized to kill. Specifically, they were to be free to decide when, where, how and for what reason, even for no reason in particular, to perform a human abortion. They were the ones given a choice.  Later, Justice Ruth Bader Ginsburg, attempting to teach feminists that they still had not achieve their goal, underscored that Roe and Doe did not give women the right to choose. It only gave them a right to ask. All authority of the medical decision was to be made by a medical doctor, the now killer, the abortionist.  Brian reminds listeners that because of human psychology, and, in particular, the phenomenon known as attachment theory, human beings are emotionally supportive of young creatures, particularly young mammals. The wide eyes, mewling and ‘baby sounds' bring an innate adult reaction. That would include human babies, but for some people canine babies – puppies are even more emotionally attractive!  But the crime of abortion is not that cute babies are killed and that OUR emotions are stretched by that action. The crime is that this is a human being has been killed.  That is the most startling culture change that ever hit our society.  Doctors were now to kill their fellow human beings and explicitly to ignore the Hippocratic Oath.  Western medicine was now destroyed.  The most trustworthy and honored profession in society has become the most evil and diabolical profession. Doctors, regardless of their personality, are under tremendous financial, sociological and cultural pressure to endorse, and when put upon, to end the lives of their fellow human beings.  The foundation that Western Civilization was built on - protection of innocent lives - was now terminated.   The physician was now transformed to a paid killer.   A cursory look at the current practice of medicine reminds us that there are bizarre ideas and values, and sociological confusion, allowing doctors to say and do things that are explicitly harmful to their patients, but that was not the case before January 22, 1973.  In every state, the laws of that state regarding killing or harming were reflected by the ethos and guidelines of the medical profession, and the medical regulations, the laws, of the various states fell in line with that. Before Roe v. Wade doctors didn't kill babies because doctors didn't kill anyone.    The Oath We must restore the Hippocratic Oath. We must focus on what the crime is, who the perpetrators are.   If we make the mistake of focusing only on the victims, on how old they are, when they die, on what situations (rape, incest, difficult social circumstances) if that becomes the action of the pro-life movement, we have lost our way . We must restore the Hippocratic Oath to the medical profession. The laws of Georgia in 1973 were actually very good and reasonable and did allow doctors to determine if there were unusual circumstances, because a panel of three different doctors experienced in childbirth determine if this was indeed a problem pregnancy.  They could exercise their medical judgment, and the state could still hold them responsible. That law of Georgia, which was overturned in Doe v. Bolton, was ironically one of the best state laws that protected human beings because it protected doctors from the temptation to kill.  Unless we focus on who is exercising choice, who is the perpetrator, and restore that profession to its once noble position, we cannot win.  At present, the pro-life movement is not winning. It is viewed as emotional and emotions can be arbitrary. It is viewed as religious and religious doctrines can also be confusingly arbitrary. The Hippocratic Ooath was founded on the principles of natural law and the laws of nature and nature‘s God. Coincidentally, that was also the premise that America's founders insisted be our guideline in making law.  Restore the Oath.  That should be our goal. 

For our 100th Podcast, Pam Karlan stops by Supreme Myths to discuss her clerkship with Justice Blackmun, her oral argument in Bostock, election law and much more!

The media that supports abortion (which is a large portion of popular media), has always misrepresented what Roe versus Wade did. Roe versus Wade never gave women the authority to kill their children. Roe versus Wade never ‘freed women to do as they wish.' Justice Blackmun's words were explicit, and Brian quotes directly from Roe, “…the court has never recognized such a right.” Justice Ruth Bader Ginsburg herself, in trying to explain Roe to radical feminists, reiterated that the decision never gave women the right to choose. “It was not woman-centered it was physician-centered.” But that did not stop radical feminists from claiming that right anyway. It did not stop the media from gaslighting, (lying directly and outrageously about objective facts,) in order to confuse you and the general public. The Dobbs decision of June 24, 2022 overturned Roe versus Wade and made very clear and concise what it would do. Roe had given all authority to determine which human lives should be killed in the course of abortion to doctors alone. Only the physician was given authority in the issue of abortion, not the woman.  The Dobbs decision said that authority over just life and death decisions is given by the Constitution to each and every state.  Under the Constitution, each and every state is given very specific authority. One of the primary purposes of the state is to protect the lives of those within its jurisdiction. The Constitution refers to this as the states' “compelling state interest to protect life.” There was never a constitutional right to abortion. Roe had falsely taken the authority of state government and given it to abortionists alone to decide if a child should be killed. In the Dobbs decision, the authority of each and every state was returned to that state.  It is now therefore, the responsibility of the state legislatures to determine within that jurisdiction, where and how to protect the lives of vulnerable children in the womb. Unfortunately, many do not fully understand what that means in their state. Right now there is a compelling duty of pro-life citizens to be actively and assertively involved in civics - to make sure that their state will indeed perform its duty to protect innocent human lives in the womb. This can only be affected by those who hold elective office. This can only be done by lawmakers.  The pro-life movement needs to understand the overriding importance of electing pro-life lawmakers in this election cycle.  The lies about Roe, then and now, have distorted the abortion issue.  The United States Congress controlled by Nancy Pelosi and radical pro-abortion lobbyists, has already voted to strike down the laws of each and every state and to federalize abortion far beyond what Roe v. Wade did. They have voted to prohibit states from any kind of laws that would protect mothers and their children. Fortunately, it appears the U.S. Senate will not pass this measure. But, in the election of 2022, if the Senate loses any more seats to the Democrats, that will no longer be the case in the legislative cycle of 2023! The elections of November 2022 are crucial! It is crucially important to realize - contrary to the media analysis –  that each and every pro-life law that has been proposed or passed, first and foremost protects the mother, the life of that woman and her health. In so doing, it also protects the life of a child in her womb. Every pro-life law, whether it be informed consent, parental notice before an abortion, or laws against distribution of RU-486: the abortion chemical drug, is designed to protect that vulnerable woman from the procedure that will invade her body in order to attempt to kill that child.  The abortion drug RU-486 is now being widely used but few understand that it operates by attacking the woman's body.  Powerful artificial steroids in two different procedures are used to seriously alter a woman's physiology and a very risky and in a blood inducing manner. The first dosage tells the woman's body to not allow nature to operate as it does in transforming her physical body, preparing it for motherhood.  The drug stops her body with a shock of chemical and unnatural dynamic. Days later, a second drug: progesterone, gives instructions to her body to expel anything in her uterus.  This will happen without her control. She is not in charge.  The deadly chemical will kick in with a shock to her body.  It is hoped that she at least will get to a bathroom.  Regardless, she will see the baby that is expelled. The drug can only be used after she had missed two periods - ten weeks.  She will likely be alone. Vast amounts of blood and hemorrhaging occur and  much of the blood is hers as well as the child's. Women have died from this powerful artificial steroidal concoction. But the media does not discuss this.  Pro-life laws are established first to protect mothers and secondly the obvious life at risk - the child. In this new political environment where the laws of each state determine whether certain human beings will be protected, it is not unlike our nation's history in dealing with slavery. In the Dred Scott decision, Justice Taney asserted each and every states' authority to enact laws of their jurisdiction. It also allowed slave states to enter free states, to enforce the slavery laws of that slave holding state. Similarly, the Dobbs decision, by asserting the authority of each and every state, also authorizes the intermeddling of a pro-abortion state with pro-life states. The states of California, Oregon and Washington fully intend to promote and encourage such intermeddling in pro-life states. California in particular has pledged vast sums of money to both promote and transport pregnant mothers to have their children killed within the jurisdiction of California. All expenses are paid, including missed pay and any other expense that the mother might see monetarily. This intermeddling of one state in the authority of another has grave implications for our nation and for the protection of innocent lives. The right to life debate is far from over.  

The boys drink and review 1623's Nuestro Playa, then discuss abortion and the recent SCOTUS decision. In Roe v. Wade, the court found a right to privacy in the constitution, although it wasn't exactly clear where it was. The court tried to split the difference between the interests of states in protecting life and the idea of a right to privacy. Justice Blackmun, who wrote the Roe decision, invented a trimester system. Many people thought Roe would be overturned in Planned Parenthood v. Casey, and while the trimester system was replaced with "viability," the underlying right to privacy was upheld, and finally located. In the 14th amendment. The current Supreme Court, with a bevy of new conservative justices, took up the issue in Dobbs v. Jackson. Someone at the court leaked a draft of Samuel Alito's majority decision, and the left went insane. Now we have the final decision, which sticks pretty close to the leaked draft. P&C review the main arguments in Dobbs and in the dissent.

Lectures in History is taking a break this week -- try the latest episode of the Weekly, which provides its own history lesson - on Supreme Court Associate Justice Harry Blackmun and the opinion he wrote...for Roe v. Wade. It seems that Roe v. Wade is always in the news, always a part of the political debate. It's been that way for nearly 50 years since the Supreme Court decided the landmark abortion case. Justice Harry Blackmun wrote the opinion legalizing abortion. In this episode of C-SPAN's "The Weekly" we look back at Justice Blackmun -- what he said about his legacy being forever associated with that famous opinion.... and the big prediction he flat out got wrong. Learn more about your ad choices. Visit megaphone.fm/adchoices

It seems that Roe v. Wade is always in the news, always a part of the political debate. It's been that way for nearly 50 years since the Supreme Court decided the landmark abortion case. Justice Harry Blackmun wrote the opinion legalizing abortion. In this episode of C-SPAN's "The Weekly" we look back at Justice Blackmun -- what he said about his legacy being forever associated with that famous opinion.... and the big prediction he flat out got wrong. Learn more about your ad choices. Visit megaphone.fm/adchoices

Roe v Wade was a 1971, 1973 landmark decision by the US Supreme Court. It ruled that a state law that banned abortion was unconstitutional. The 7 to 2 decision had Chief Justice Warren E Burger and six other Justices vote for "Jane Roe" and Justices William Rehnquist and Byron White vote against it. The decision divided the United States and is still controversial. People became divided into pro-life and pro-choice groups. Pro-life supporters argue that the unborn baby has the same right to life as other people, and the government should intervene to protect it. Pro-choice supporters believe that the unborn baby is not the same as a person, and the woman has the right to choose what she wants to do with her body and that the government should not intervene. Roe was limited by a later decision, Webster v Reproductive Health Services (1989), which allowed the regulation of abortion in some cases. Several states have considered laws banning abortions altogether. In May 2022, a leaked draft of the Supreme Court's decision to overrule Roe v Wade was published. Background. The case began in 1970 in Texas as a challenge against a law banning any kind of abortion unless the mother's life was in danger. A pregnant Texas woman, Norma McCorvey (alias Jane Roe), brought a lawsuit against Henry Wade, Dallas County District Attorney, in a Texas federal court. Claiming to be a single woman and pregnant, McCorvey wanted to terminate her pregnancy. She wanted it to be done safely by a doctor but said that she could not afford to travel outside Texas. She could not get a legal abortion in Texas because her life was not in danger. Her lawsuit claimed that the Texas law violated her right to privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe added she sued "on behalf of herself and all other women" in the same situation. The case slowly made its way to the US Supreme Court. Meanwhile, McCorvey had her baby and placed it for adoption. Majority opinion. In a 7 to 2 decision, the court held that a woman's right to an abortion was protected by her right to privacy under the Fourteenth Amendment. The decision allowed a woman to decide whether or not to have an abortion during the first trimester. That affected the laws of 46 states. Justice Harry Blackmun wrote the majority opinion. "We... acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires." — Justice Blackmun (1973).

Three Bayly brothers sat under Prof. Roger Nicole at Gordon-Conwell Theological Seminary. We'd agree he was the high point of our seminary education. Justice Harry Blackmun was the author of the Supreme Court's 1973 ruling Roe v. Wade legalizing the slaughter of the unborn. In 1994, Justice Blackmun retired and Dr. Nicole took that occasion to write Blackmun a letter. Nicole blind-copied me on his letter and I post his letter here as my commentary on the death of Sarah Weddington, the lawyer who argued Roe v. Wade who is currently being lauded by all the filthy, bloodthirsty media of the Western world.

Roe v. Wade didn't give women anything. What it did do is give doctors the right to kill babies. “Roe really isn't about the woman's choice... It's about the doctor's freedom to practice his profession as he thinks best.It was not woman centered. It was physician centered.” - Ruth Bader Ginsburg, University of Chicago lecture May 10, 2013 The media doesn't tell you this. Very few people understand Roe. It is in fact an amalgam of two separate decisions that were then ‘conjoined' by the Court. Roe v. Wade addressed a Texas law. Doe v. Bolton dismissed the abortion laws of Georgia. On Jan 22nd, 1973, they were both handed down simultaneously and “conjoined” by the Court as one ruling. Many now call this conjoined action “Roe” or “the Roe regime.” Though they dealt with two different states, and each has very different tone, the net effect of the combined decision was to strike down not only those two states' laws, but the laws of every other state as well! In the Doe portion of the decision, the author, Justice Blackmun, inserted a special ‘health exception.' He intentionally defined it in the broadest possible terms. The reasons need not be written down, but only exist, ‘in the judgement of the doctor.' If the abortionist felt there may be any sociological or psychological implications for that woman's motherhood, “all of these things may be considered health. (Roe and Doe @183).  A physically healthy child could be killed inside of a physically healthy mother – throughout pregnancy – if his judgement called for it. In dissent, Justice White summed up this late term, ‘psychobabble' exception: “… for anyone of such reasons, or no reason at all, and without asserting or claiming any threat to life or health… [it was now to be legal for] any medical advisor willing to take up the procedure…. I dissent.” (Roe and Doe dissent @221).  It's funny how media analysts avoid any discussion of this ‘little' exception.  Since then, the media narrative has reduced the debate, and simply summed all this up as, ‘a woman's choice.' The media is intent on simplifying issues for consumption. But such simplicity often comes at the cost of stultifying its consumers as well. That's us. If you examine her statement carefully, Justice Ginsburg was right: the conjoined, twin decisions of Roe and Doe are clear. The choice and decision are the abortionist's alone. The woman, even if ‘uncomfortable,' simply needs to go along with what ‘the doctor' has in mind. A killing profession was pulled from centuries of shadows. It was given license and legitimacy on that day.  For millennia, the Hippocratic Oath had unequivocally condemned this killing of vulnerable children. And legally, abortion has always been frowned on by the law since at least Common Law times and in many cases long before that. But Blackmun and his fellows declared the healing profession turned on its head. Doctors were now free to be fully licensed killers. Their personal thoughts and judgments considered supreme in life or death. The Oath and its centuries of influence on law and society were pronounced dead via Roe and Doe. ‘If babies are to be killed, then a professional will do it.'   Today's USSC In the oral arguments of this December 1st, Justice Kavanaugh very politely complimented abortion advocates, but summed up the challenge in contemplating Roe. There are two competing interests and legal principles at stake, he said. The one, “the liberty interest,” (or ‘right to choose') was forcefully and effectively presented by the Solicitor General of the United States, who was arguing the case. He gave her a ‘hat tip.' But the other competing interest is the right to life which is at stake. These two interests exist in direct variance. We cannot ‘split the difference': either one or the other will dominate. They cannot,“both win.” The other five pro-life Justices who are oft-times silent, also offered questions and comments - yes, each spoke – and confirmed their pro-life positions.  The three, abortion-supporting Justices: Kagan, Sotomayor, and Breyer, not only commented, but with acerbic resignation seemed to ooze bitterness.  Their jibes about contrary ‘political decisions,' and the ‘danger to the court;' their affection for ‘court precedence' all seemed to aim directly at influencing the Chief Justice. Their implications: 'If you do this, our Democrat Party may need to change the structure of this Court. We will pack it.' Chief Justice Roberts, known to be very susceptible to pressure regarding the image and nature of the Court, made statements that seemed to be supportive of the Mississippi law and of its 15-week limit. But this desire to ‘split the difference,' while seeming to ‘cross the line' that Roe had drawn, is in fact in direct variance with Justice Kavanaugh's open statement that you can't somehow cut the baby in two' and ‘allow both the liberty interest and the right to life be given equal weight.' While there are six openly pro-life votes on the Court, I urge you not to use the simplistic media analysis: ‘It's a black and white, apolitical-head count.'  Yes, the hearing bodes well for life. But I sat with colleagues in 1992 as we read the result of the Casey decision. Remember, that Pennsylvania law was, “going to bring down Roe.” But Casey itself was, as they say in boxing, a split decision.  Few of the judges really agreed. The result was that Casey had to be ‘cobbled together.' At the end of the day, Roe was in fact still upheld! Each of the justices had gone in different, nuanced directions.  This became what the court officially calls a “joint decision.”  Some judges upheld portions of the Pennsylvania law yet insisted on striking others.  There was no clear majority.  Justice Blackmun, Roe's author, was still on the court in 1992. Predictably, his decision in Casey proudly upheld Roe. Back in Casey, then Supreme Court Chief Justice William Rehnquist voted with a plurality - Scalia, White, and Thomas, to ‘adjust' Roe ( he did not have the votes to overturn.) But he attempted to continue to dismantle it. The Court jettisoned the false and deceptive ‘trimester' framework, (Has the media EVER told you that the trimester system was long-ago ruled meaningless and arbitrary? The Court also conceded that there was not in fact, a‘fundamental right' to abortion. Does ANY local, or even national reporter ever comment on that? Nope. The actual status of abortion law is continually misrepresented by a simplistic media.) But after Casey, and despite loss of credibility, Roe still stood. But in a simplistically meaningless salute to ‘choice' and the legal folly of stare decisis (the legal insistence that a ‘previous decision continue to stand'). Chief Justice Rehnquist stated in his ruling, “Roe continues to exist, but only in the way that a storefront on a western movie set exists: a mere façade to give the illusion of reality... Behind the façade an entirely new method of analysis without any roots in constitutional law…”   Casey Joint Decision, 1992 For us today, the question for 2022 is: What will this Court now do? You just read that Chief Justices will throw their decisions in surprisingly unlikely corners - this to help frame and ‘craft' the final decisions their colleagues may be offering.  Will Justice Roberts, widely known for such politicking, try that? Will he attempt to ‘split the difference' yet again? But with five other solid lifers, could he? I fully expect the old façade known as Roe to topple. This diseased tree will indeed fall. But in which direction?   A bigger issue, that is almost never addressed, undergirds this entire debate: “Will doctors be free to continue in their now 50-year-old license to do what they want, even to kill? Justice Ginsburg, and a handful of others, knew this issue just never gets discussed.  Whatever happens in the coming decision, you can expect the major media to enjoy the controversy. Just don't expect them to get it right. ----- Here's a nice thought: the media has stopped talking about the Texas abortion law heard by the court two weeks earlier. But that law is powerful. The Court has allowed it to remain in effect.  Abortions have come to a halt in Texas.  So, the media has joined in the terrified silence of the abortion industry regarding that law.  Wouldn't it be nice if the Court decided to rule on Texas as well? Then, as they did in 1973, perhaps issue a conjoined decision, but this time protecting the right of unborn children to be protected and honored under the law?    Brian Johnston is the author of Evil Twins - Roe and Doe: How the Supreme Court Unleashed Medical Killing available on Amazon and wherever fine books are sold.

Ben Lindbergh and Meg Rowley banter about their imperfections, follow up on flying horses, Justice Blackmun omitting Mel Ott from Flood vs. Kuhn, and a possible defense of pitcher hitters, then assess the state of the standings and playoff races, contemplate a position change for Fernando Tatis Jr., discuss the Field of Dreams Game, and […]

Cohen is read by Robert Corn-Revere, First Amendment media lawyer and partner at Davis Wright Tremaine. Legal Question: Whether arresting someone for wearing a jacket that says “Fuck the Draft” under a California statute which prohibits “offensive conduct” violated the First Amendment. Action: The application of the statute to Cohen's expression was ruled to be unconstitutional because it did not meet the standard for fighting words or obscenity. The Court also rejected the state's reasoning that they needed to protect unwilling viewers from Cohen's display, noting that viewers “could effectively avoid further bombardment of their sensibilities by averting their eyes.” Justice Harlan delivered the opinion of the Court, at 00:41 Justice Blackmun, dissenting, at 24:03 This opinion's citations have been edited down for ease of listening. For more information, visit our explanation. For more on Cohen v. California, visit FIRE's First Amendment Library. For more episodes, visit thefire.org/outloud. Chapters:00:41 MR. JUSTICE HARLAN delivered the opinion of the Court.05:55 I. In order to lay hands ...15:17 II. Against this background, the issue ...24:03 MR. JUSTICE BLACKMUN dissenting.

In this episode of Life Matters, Brian Johnston explores the more profound significance of the Roe v. Wade narrative. As has been discussed in other programs and deeply explained by other Supreme Court justices, by Justice Blackmun’s court clerks, and many other legal experts who would prefer legalized abortion, Roe versus Wade is a confusing jumble. It’s a wild story that leads us confusingly through legal and medical history, through an arbitrary division of pregnancy into trimesters and assertions of where abortion should be performed in the various trimesters. Brian explains that this narrative, this story, is a spiel. That is why other legal experts can’t get it to make sense.  It’s a story to distract us and confuse us. The new real action taken is in Doe versus Bolton, where Blackmun clearly states that he will authorize and direct doctors to now be killers and that they can use their personal medical judgment at any time in the pregnancy.  They need not answer to anyone else for that decision. The purpose of the spiel, just like the purpose of a criminal’s alibi, is to provide a justification for a crime that either has taken place or is about to take place. The spiel is a relatively common aspect of social life, used by gypsies and thieves.   Unless you are fully prepared and understand that it is designed to distract you, there is great danger in trying to follow it or believe in it. Its purpose is to sell you on a final conclusion that may indeed be to your greater harm. Roe versus Wade is exactly that. Doe versus Bolton is the deadly real result. Roe is the distracting spiel, Doe is the crime.

In this episode of Life Matters, Commissioner Johnston outlines the incredible power that language has over our thoughts and perceptions. Brian had studied Comparative Linguistics at Sonoma State University and explains a language phenomenon that many of us don’t often think about.  Just as we are unable to comprehend a completely foreign language, there is the related inability to think about or understand ideas for which we have no words. This principle also extends to deeper implications - that the meaning of words themselves can be changed simply by their usage in society. Those who control the tools of communication - major media and academic circles, are given great control over the use of language. They often create new rules and usages.   George Orwell eloquently illustrated the phenomenon in his book 1984. He had written an epilogue explaining how language is used to control the populace in collectivist-socialist cultures. Orwell’s epilogue is widely available and very recommended. It is entitled, “The Principles of Newspeak”.  Newspeak is the method by which ‘Ingsoc’, ideas of the new English socialism, would be imparted and reinforced. It resulted in the inability to think of individual freedom or previous forms of government. The meanings attached to those concepts would simply be lost. Brian further comments on the details of this phenomenon as illustrated in Comparative Linguistics.      The language principle is known as the Sapir-Whorf hypothesis. Brian had studied the comparative dialects of the Pomo Indian Tribe of Sonoma, Lake, and Mendocino Counties. Many years earlier, Edvard Sapir had studied the languages of the Aleut and Inuit tribes (formally called Eskimos). Benjamin Lee Whorf studied the Hopi Indian dialects. Each made observations regarding vocabulary (Sapir) and verb tense (Whorf). They concurred that the different aspects of language directly impacted how the language-user viewed the world around them. Brian explains how the right to life, abortion and euthanasia debates are directly impacted and even determined, by the language that is used. Obviously, abortion advocates have intentionally changed the vocabulary (choice - a concept - is used to replace the specific action of dismemberment and disposal of the human child). And this is but one example. But in a larger sense, the use of the language and the presumptions that language carries, have also quietly induced pro-life individuals to engage in the debate of ideas, but only using the premises that our current culture has made popular. Many pro-lifers feel a deep need to debate the relative merits and arguments of the Roe v. Wade decision.  But as Brian, pro-life judges, and even pro-abortion judges, have pointed out, Roe versus Wade is completely illogical in its premises, in its pattern of logic, and in its conclusions.  Again, even Justice Ginsburg, the most-radical pro-abortion Supreme Court Justice has declared that Roe v. Wade and Doe v. Bolton, have not granted women a right to choose or the right to do what they wish with their bodies. Justice Blackmun was explicit that Roe does not create an unlimited right to an abortion. Yet abortion for ‘choice’ is still considered its result.  Brian‘s point is that it is the companion decision, Doe versus Bolton, which explicitly sets aside the rambling confusion regarding pregnancy and culture and history (the actual content of Roe). It is Doe versus Bolton that explicitly allows doctors to kill, based solely on their own personal opinion, and without any further accountability.  Doe is the enactment ‘provision’ of Roe v. Wade. And by making the physician (not the woman) the designated agent and ultimate decision maker, it has brought a direct attack against the very premise of the culture in which we live, Western Civilization.  Western Civilization holds the premise that human beings are more than merely animals.  One profession was dedicated to always caring for and protecting the unique and vulnerable human person - the medical profession.  Throughout Western Civilization doctors have always sworn to never harm or kill.   It is in Doe v.  Bolton that the medical profession is explicitly empowered to kill and directed to do so at their own discretion.  Western Civilization a victim in the Roe and Doe companion decisions - they have done even more than simply authorize the killing of innocent babies. An unrestrained killing profession has now become an accepted part of our society. But language has prevented many from seeing or even thinking about what that means.

“Roe v. Wade has no foundation in either law or logic; it is on a collision course with itself.”  Edward Lazarus, a former law clerk to Roe's author, Justice Harry Blackmun, who writes: As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather. . . . . What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent. ... The proof of Roe's failings comes not from the writings of those unsympathetic to women's rights, but from the decision itself and the friends who have tried to sustain it. Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms.7 Ten Legal Reasons to Condemn Roe v. Wade 1.    The umpires are there to call balls and strikes. In real baseball they cannot be players as well.   The Roe Court far exceeded its constitutionally designated legal purpose and authority.  Under the U.S. Constitution, the power to make laws is vested in Congress and retained by state legislatures. Elected representatives are the proper ‘makers of law.’ These elected officials then answer to the voters. The role of the judiciary in constitutional review is to determine if the law being challenged infringes on a constitutionally protected right. It is not the role to then somehow come up with new laws of their own tastes and inclination. Justice O'Connor, quoting Chief Justice Warren Burger: Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as 'Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"8 In Roe v. Wade and its companion, conjoined case, Doe v. Bolton, the Court struck down criminal laws of Texas and Georgia which outlawed certain abortions by finding that these laws (and those of the other 48 states) violated a "right of privacy" that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." But such a right is nowhere mentioned in the Constitution nor even derivable from values embodied in it. It was a preference to have such a right and Justice Blackmun’s writings actually set themselves to devise the ‘rules’ that would then ‘emanate’ from such a preferred right. He simply made up new, substitutionary laws and imposed them on all the states!  In his dissenting opinion in Doe v. Bolton, Justice Byron White, joined by Justice William Rehnquist, wrote: I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers ... and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. 2. The Roe Decision seriously misrepresents the history of medicine and society’s view of abortion. Justice Blackmun admitted to a serious fascination with the medical profession. Later in Doe v. Bolton we will see an almost passionate commitment to ‘protect the physician from the cloud of possible prosecution.’ The Mayo Clinic, for whom he served as legal counsel, admits to Blackmun’s unique obsession with the medical profession.  Proceedings of the Mayo Clinic Francis Helminski, J.D. Volume 69, Issue 7, p 698-699, July 01, 1994 Although three previous justices of the United States Supreme Court have had formal medical training, none has had more influence on medicine than Justice Harry A. Blackmun. Blackmun, a mathematics major at Harvard College, considered medical school but instead chose legal training. After becoming familiar with the legal work of the Mayo Clinic while practicing with a Minneapolis firm, he was internal legal counsel for the clinic from 1950 to 1959. Blackmun's work contributed to the development of the clinic, especially in the establishment of Rochester Methodist Hospital. As a Supreme Court Justice, Blackmun's concern for medicine was evident in many of his judicial opinions, including Roe v Wade and Regents of the University of California v Bakke. In Roe, he rested much of the constitutional foundation for legalized access to abortion on the integrity of the physician-patient relationship. The apparent purpose of the Roe opinion's long historical excursion is to create the impression that abortion had been widely practiced and unpunished until the appearance of restrictive laws in the prudishly-Victorian 19th Century. One example is adequate to show the distortion of Justice Harry Blackmun's version of history. He must overcome a huge hurdle in the person of Hippocrates, the "Father of Medicine," and his famous Oath which has guided medical ethics for over 2,000 years. The Oath provides in part: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion."9 This enduring standard was followed until the Roe era and is reflected in Declarations of the World Medical Association through 1968: "I will maintain the utmost respect for human life, from the time of conception. ..."10 But Justice Blackmun dismisses this universal, unbroken ethical tradition as nothing more than the manifesto of a fringe Greek sect, the Pythagoreans, to which Hippocrates is alleged to have belonged! 3. Roe wrongly characterizes the common law of England regarding the status of abortion. The Court's language in Roe offers a plastic analysis and conclusion – "it now appears doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus" – is patently false on its face. The Common Law drew its principles from Natural Law. Until quickening there were no objective signs that a human life was present. Quickening, the moment that movement can be detected, was considered objective scientific fact that the fetus was indeed definitively alive.11 William Blackstone's Commentaries on the Laws of England (1765-1769), an exhaustive and definitive discussion of English common law as it was adopted by the United States shows that the lives of unborn children were valued and protected, even if their beginning point was still thought to be "quickening" rather than conception: Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as the infant is able to stir in the mother's womb.    For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb ... this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.12 Until well into the 19th century, it was assumed that a child's life may not begin – and certainly could not be proven to have begun to satisfy criminal evidentiary standards – prior to the time the child’s movements were felt by the mother ("quickening"), at approximately 16-18 weeks' gestation. The science of the time was being applied to the enforcement of the law. After the invention of the modern microscope (1836) and the widespread, objective scientific revelation that mammalian life begins at conception, English law then increased the penalties for killing a child before quickening. Consistent with the principle that the law needs to follow objective, observable facts, in 1861 Parliament passed the Offences Against the Person Act. This law extended protection of the life of the child throughout pregnancy. This law was gradually whittled-away starting in the 1980’s. But the Act continued to protect pre-born life in Northern Ireland until 2019.20 The Roe Court looks at the distinction in early common law concerning abortions attempted before or after "quickening," wrongly. It falsely assumes that the law allowed women great latitude to abort their children in the early months of pregnancy. This is like saying people had an unspecified right to hack websites before such acts were criminally prosecuted. The law is designed to enforce known and demonstrable crimes. A law could not protect a human being it did not know to be alive. But as demonstrated by the Offences Against the Person Act, when the facts are known, then the law can be enforced. 4. In Roe, the Court downplays and distorts the purpose and legal weight of state criminal abortion statutes that had been deliberated and passed by the several states In the 19th Century, in virtually every state and territory, laws were enacted to define abortion as a crime throughout pregnancy. They contained only narrow exceptions, generally permitting abortion only if necessary to preserve the mother's life. The primary reason for stricter abortion laws, according to their legislative history, was to afford greater protection to unborn children. This reflected a heightened appreciation of prenatal life based on new medical knowledge. (See the Offenses Against the Person Act in the U.K.) Dr. Horatio R. Storer… etc is significant that the medical profession spearheaded efforts to afford greater protection to unborn lives than had been recognized under the common law's archaic "quickening" distinction. The existence of such laws, and their clear purpose of protecting the unborn, rebuts the Court's claim that abortion has always been considered a liberty enjoyed by women. These laws show broad acceptance of the view that the life of an unborn child is valuable and should be protected unless the mother's life is at risk. In that case, of course, both mother and child were likely to perish, given the primitive care then available for infants born prematurely. How does the Court get around the impressive body of laws giving clear effect to the state's interest in protecting unborn lives? It attempts to devalue them by ascribing a completely different purpose: the desire to protect the mother's life and health from a risky surgical procedure. Applying the maxim "if the reason for a law has ceased to exist, the law no longer serves any purpose," the Court declares that abortion is now "safer than childbirth." Therefore, laws banning abortion have outlived their purpose.   5. A privacy right to decide to have an abortion has no foundation in the text or history of the Constitution. Roe v. Wade locates a pregnant woman's "constitutional" right of privacy to decide whether or not to abort her child either "in the Fourteenth Amendment's concept of personal liberty ..., as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people." The Court does not even make a pretense of examining the intent of the drafters of the Fourteenth Amendment, to determine if it was meant to protect a privacy interest in abortion. Clearly it was not. The Fourteenth Amendment was not intended to create any new rights, but to secure to all persons, notably including freed slaves and their descendants, the rights and liberties already guaranteed by the Constitution. Several rhetorical devices are used to mask this absence of constitutional grounding. The Court mentions several specifically enumerated rights which concern an aspect of privacy, for example, the Fourth Amendment's "right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures." However, the Court fails to connect these to the newly found "right" to abortion, because no logical connection exists. Justice Blackmun attempts to graft abortion onto the line of decisions recognizing privacy/liberty rights in the following spheres: marriage (Loving v. Virginia, striking down a ban on interracial marriage); childrearing (Meyer v. Nebraska and Pierce v. Society of Sisters, upholding parental decision-making regarding their children's education); procreation (Skinner v. Oklahoma, finding unconstitutional a state law mandating sterilization of inmates found guilty of certain crimes); and contraceptive use by a married couple (Griswold v. Connecticut). Certainly marriage, and building and raising a family are fundamental aspects of human life that predate human laws and nations. They are implicit in the concept of liberty and the pursuit of happiness, though even these rights are subject to state limitation, such as laws against bigamy, incest, and child abuse and neglect. But abortion does not fit neatly among these spheres of privacy. It negates them. Abortion is not akin to childrearing; it is child destruction. A pregnant woman's right to abort nullifies the right to procreate upheld in "Skinner." He no longer has a right to bring children into the world, but only a right to fertilize an ovum, which his mate can then destroy without his knowledge or consent. The fear of government intruding into the marital bedroom by searching for evidence of contraceptive use drove the Griswold Court to find a privacy right for couples to use contraception in the "penumbras, formed by emanations from" various guarantees in the Bill of Rights. But, however closely abortion and contraception may be linked in purpose and effect, they are worlds apart in terms of privacy. Abortions do not take place in the sacred precincts of marital bedrooms, preventing them does not require investigation of private sexual behavior, and they involve personnel other than the spouses. A "privacy right" large enough to encompass abortion could also be applied to virtually any conduct performed outside the public view, including child abuse, possession of pornography or using illicit drugs. The liberty interest to be protected from state regulation is never really defined in Roe. Instead the Court describes at some length the hardships some women face, not from pregnancy, but from raising children: Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. By this reasoning, one might argue that Roe's liberty encompasses ridding oneself of unwanted toddlers! Ordinarily, the defense of rights requires us to forgo lethal methods and use means likely to create the least harm to others. We may not, for example, surround our house and yard with a high voltage fence to deter trespassers. This principle is upended in the abortion context. Adoption, for example, would effectively eliminate all the "hardships" of raising "unwanted" children by non-lethal means. 6. Although it reads the 14th Amendment extremely expansively to include a right of privacy to decide whether to abort a child, the Court in Roe adopts a very narrow construction of the meaning of "persons" to exclude unborn children. Much is made of the fact that "person" as used elsewhere in the Constitution does not refer to unborn children when, for example, discussing qualifications for public office or census-taking. That point proves nothing. The Supreme Court has held that corporations are "persons" within the meaning of the 14th Amendment and they are not counted in the census, nor can a corporation grow up to be president. The Roe Court also ignored the clear and uncontested biological evidence before them that individual human lives begin at conception: "We need not resolve the difficult question of when life begins." This is question determined by science, not philosophers or theologians or politicians. But while seeming to sidestep the question, the Court in fact resolved the question at birth, by allowing abortion to be legal throughout pregnancy. In the same vein, the Court refers to the unborn child as only a "potential life" (indeed, an actual life) from the moment of his or her conception. The Roe opinion states that a contrary finding on "personhood" would produce the opposite result (presumably foreclosing the mother's privacy right to an abortion). One does not have to be a "person" in the full constitutional sense, however, for a state to validly protect one's life. Dogs can be protected from killing although they are not "persons."13 And under the Endangered Species Act (ESA), people are prosecuted, fined and jailed for acts that may harm creatures, such as sea turtles, that are not "persons" in the full constitutional sense. Sea turtles are protected not only after they are hatched, but even while in the egg. In fact, each sea turtle egg removed from its nest constitutes a separate violation under the ESA, regardless of whether the sea turtle egg contained an embryo that was alive or "quick" or "viable" or even already deceased at the time of the taking.   7. The Roe Court assumed the role of a legislature in establishing the trimester framework. Roe holds that in the first trimester of pregnancy, the mother's "privacy interest" in an abortion trumps state regulation. From the end of the first trimester to the child's "viability" – which the Court presumed to be no earlier than 26 weeks – the state can regulate abortion practice only in ways reasonably related to advancing the mother's health. In the final trimester, the state – in the interest of protecting the "potential life" of the child – can regulate and even proscribe abortion, except where necessary to preserve the mother's "life or health." Health (see point 8 below) is the exception that swallows the rule. Pre-decision memoranda among members of the Roe Court acknowledged the serious flaw in establishing arbitrary, rigid time frames. Justice Blackmun himself admitted it was arbitrary.14 A reply memorandum from Justice Potter Stewart stated: One of my concerns with your opinion as presently written is ... in its fixing of the end of the first trimester as the critical point for valid state action. ... I wonder about the desirability of the dicta being quite so inflexibly "legislative." My present inclination would be to allow the States more latitude to make policy judgments. ..."15 Geoffrey R. Stone, a law clerk to Justice Brennan when Roe was decided, was recently quoted as saying: "Everyone in the Supreme Court, all the justices, all the law clerks knew it was 'legislative' or 'arbitrary.'"16 Justices O'Connor, White and Rehnquist denounced the arbitrary trimester framework in O'Connor's dissenting opinion in Akron: [There] is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today. ... [That] framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated. The majority opinion of Justice Rehnquist in Webster v. Reproductive Health Services states: The key elements of the Roe framework – trimesters and viability – are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle. ... the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. As Justice White has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."   8. What Roe gives, Doe takes away. Many Americans believe that abortion is legal only in the first trimester (or first and second trimester). Many pollsters and media outlets continue to characterize Roe v. Wade as the case which "legalized abortions in the first three months after conception."17 In a recent television appearance, NOW's former president Patricia Ireland falsely claimed that "thirty-six states outlaw abortion in the third trimester." As noted above, under Roe state laws banning late-term abortions must contain a "health" exception. Health is defined in Roe's companion case, Doe v. Bolton, as including "all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the wellbeing of the patient. All these factors may relate to health." This definition negates the state's interest in protecting the child, and results in abortion on request throughout all nine months of pregnancy. The fact that the Court buries its improbably broad definition of health in the largely unread opinion in Doe v. Bolton makes it no less devastating.   9. The Court describes the right to abortion as "fundamental." The Supreme Court has found certain rights fundamental. Expressed or implied in the Constitution, they are considered "deeply rooted in the history and traditions" of the American people or "implicit in the concept of ordered liberty," such as the free exercise of religion, the right to marry, the right to a fair trial and equal protection. A state law infringing on a fundamental right is reviewed under a rigorous "strict scrutiny" standard. In effect, there is a presumption against constitutionality. The Roe Court claims abortion is fundamental on the ground that it is lurking in the penumbras and emanations of the Bill of Rights or the 14th Amendment, along with privacy rights like contraceptive use. It's ludicrous to claim abortion is deeply rooted in American history or traditions or that our governmental system of "ordered liberty" implicitly demands the rights to destroy one's child, but it was an effective way to foreclose state regulations of abortion. The strict scrutiny test was later abandoned in Casey.   10. Despite the rigid specificity of the trimester framework, the opinion gives little guidance to states concerning the permissible scope of abortion regulation Abortion decisions that followed Roe chronologically have not followed Roe jurisprudentially. Many decisions have five separate opinions filed, often with no more than three justices concurring on most points. Eight separate opinions were filed in Stenberg v. Carhart (which effectively nullified laws in over two dozen states banning partial-birth abortion). The 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey could have resulted in Roe's reversal. The Casey Joint Opinion (there being no majority opinion) comes close to conceding that Roe was wrongly decided: We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation in Roe's wake we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding. Instead they jettisoned Roe's trimester framework and standard of legislative review, but kept Roe alive: Chief Justice Rehnquist's dissent in Casey, in which he is joined in part by Justices White, Scalia and Thomas states: Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny," and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. ... Roe analyzed abortion regulation under a rigid trimester framework, a framework that has guided this Court's decision-making for 19 years. The joint opinion rejects that framework. ... Whatever the "central holding" of Roe that is left after the joint opinion finishe[d] ... Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. And later in that dissent: Roe v. Wade stands as a sort of judicial Potemkin village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the façade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor "legitimacy" are truly served by such an effort. Roe makes no legal sense whatsoever. It is Doe v. Bolton, handed down the same day, and 'interlocked' by Justice Blackmun, it is Doe that explicitly authorizes medical killing, "without the shadow of possible prosecution."

Commissioner Johnston knows attorneys who are actively involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v. Wade’s intricacies. But honest lawyers will not make any such claim. Perhaps what is more frightening, he knows many more commentators and reporters who will ‘explain’ the decision at length.  The problem is, this ‘well-known’ decision cannot possibly be explained. It does not and cannot make sense.  Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."3 Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4 It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v. Bolton, in many ways, is written for ‘the doctor.’ The state’s interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life: dismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun’s definition of the ‘health’ of the mother in gauzy, ‘gestalt’ concepts, justified a deadly surgical act. By ‘combining it’ with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician’s opinion the arbiter of action. Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6   It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.   Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit.  The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America’s abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of ‘imperfect’ dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or oath to never use medicine to kill. The Oath had served as the anchoring premise not only for medical doctors, but for society’s view of ‘unimportant’ human lives entrusted to them. We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician’s ‘right to choose’ is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.    1.Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford U. Press 2001): "Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)...." 2. Sunstein, Cass. Quoted by McGuire, New York Sun (November 15, 2005)  3.Tribe, Laurence "Roe v. Wade and the Lesson of the Pre-RoeCase Law". Michigan Law Review. 77 (7): 1724–48. 4. Lazarus, Edward. "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them, Findlaw's Writ (October 3, 2002). 5. Blackmun’s personal note to fellow justices. Quoted in Woodward, Bob. "The Abortion Papers Archived June 14, 2008, at the Wayback Machine", Washington Post (January 22, 1989). 6.Bullington, Jonathan, (May 11, 2013) Justice Ginsburg: Roe v Wade not woman centered. Chicago Tribune   Brian Johnston is the Western Regional Director of the National Right to Life Committee. His new book, The Evil Twins: Roe and Doe; How the Supreme Court Unleashed Medical Killing will be published by New Regency Publishing and is scheduled for release on April 4, 2021.   Pre-orders available at special, pre-order pricing at New Regency, on Amazon and at AuthorStock. Mr. Johnston is available for comment and remote or in-person speaking (800) 924-2490)

In this episode of Life Matters Commissioner Johnston explores the real issues hidden deep within Roe versus Wade and Doe versus Bolton, the twin decisions handed down on January 22, 1973. Few people, even many pro-lifers are aware that abortion was legalized and the laws of all of the states overturned not by simply Roe versus Wade but by the twin conjoined decisions of Roe v. Wade and Doe v. Bolton. Roe v. Wade was addressing the abortion laws of Texas. Doe v. Bolton was addressing the abortion laws of Georgia. Brian Johnston pulls from his new book The Evil Twins Roe and Doe:  How the Supreme Court unleashed medical killing. It is scheduled for release on April 4th of this year. Mr. Johnson explains first of all what very few public commentators and the public at large understand. Roe versus Wade is not simply despised by pro-life individuals. It logically is. Roe versus Wade is despised by many of the leaders of the pro abortion movement, not least of which was actually Supreme Court Associate justice Ruth Bader-Ginsberg. Brian refers to the many attorneys who are deeply involved in the abortion debate and on both sides of the issue. Many assert a mastery and working knowledge of Roe v Wade’s intricacies. But honest lawyers will not make any such claim. Perhaps what is more frightening, “I know many more commentators and reporters who will ‘explain’ the decision at length.  The problem is, this ‘well-known’ decision cannot possibly be explained. It does not and cannot make sense." Even liberal legal scholars like Alan Dershowitz,1 and Cass Sunstein,2 deny its ability to stand on its own merits. Progressive Professor Laurence Tribe is clear: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."3 Edward Lazarus was a Blackmun law clerk who "loved Roe's author like a grandfather." He wrote: "As a matter of constitutional interpretation and judicial method .... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."4 It is only in understanding this problem of Roe that one can see the real significance of its companion decision, Doe v. Bolton. The decisions were linked and released in tandem. In Doe, Justice Blackmun switches themes entirely. He does not focus on stages of pregnancy or the woman. He now focuses on the individual who is about to do the abortion. Doe v Bolton, in many ways, is written for ‘the doctor.’ The state’s interest in protecting life is specifically downgraded. The Hippocratic tradition of never harming a human life isdismissed. At any time in pregnancy psychological and societal questions could be the determining factor. No physical medical conditions need be present. (Doe, 410 U.S. 191) Blackmun’s definition of the ‘health’ of the mother in gauzy, ‘gestalt’ concepts, justified a deadly surgical act. By ‘combining it’ with the confusing Roe decision, he cleans up what he quietly had admitted is an arbitrary, pregnancy-stages framework.5 In Doe he cuts through the fog. He makes the physician’s opinion the arbiter of action. Known feminist and abortion-advocate, Associate Justice Ruth Bader Ginsburg, has openly faulted the Court's approach for actually being, "about a doctor's freedom to practice his profession as he thinks best.... It wasn't woman-centered. It was physician-centered."6   It is this then, that is the real overarching issue in these decisions: legally-authorized, medical killing.   Pregnancy and abortion were confusedly and ham-handedly dealt with in Roe. But what is crisply and incisively granted to physicians in Doe is the right to use their profession to deadly effect and as they personally saw fit. The quietly implemented, largely unexamined Doe decision is responsible for the implementation of America’s abortion practices. Three thousand years of ethical guidance had protected the physician, vulnerable patients, and civilized society from the quiet, easy way out: simply kill the human being in question. The temptation to cover mistakes; save money; accommodate coercion; reduce workload on overworked medical staff; abet antsy heirs; cease careful pain management by simply ceasing the life; diminish populations of ‘imperfect’ dependent individuals; all of these utilitarian motives are easily implemented – and quietly so - once there is no external rule or Oath to never use medicine to kill. The Oath had served as the anchoring premise not only for medical doctors, but for society’s view of ‘unimportant’ human lives entrusted to them. We are now living with the ever-expanding implications of this casual and quiet dismissal of three millennia of medical ethics. As Justice Ginsburg ironically points out, this new, physician’s ‘right to choose’ is actually the only definitive, conclusive aspect of the deadly, twin decisions, Roe v Wade and Doe v Bolton.

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Carol Tracy, the Executive Director for the Women’s Law Project, to discuss one of today’s most polarizing issues - abortion.   One of the topics at the forefront of today’s politics, the abortion debate continues to intensify. Aaron and Carol talk about the most recent round of abortion bans in states like Alabama, Georgia and Missouri, as well as the history of abortion, the evolution of the law on abortion rights – discussing cases like Planned Parenthood v. Casey and Roe v. Wade, and ultimately what the future may look like.     Listen in as Aaron and Carol tackle the complexities surrounding the topic of abortion, discussing the implications of overturning Roe and examining the tough questions that surround this issue. Carol is a Temple Law graduate and has been a women’s rights advocate for more than 30 years.   You can find out more about Carol and the Women’s Law Project here. To read Justice Blackmun’s opinion in Roe v. Wade, please click here.   Host: Aaron Freiwald Guest: Carol Tracy   Follow Good Law | Bad Law: YouTube: Good Law | Bad Law Instagram: @GoodLawBadLaw Website: https://www.law-podcast.com

In this episode, Brian Johnston reminds us of the actual nature of the Roe versus Wade decision and the companion decision, Doe versus Bolton. Unfortunately, the major media has misrepresented these decisions since they came down on January 22, 1973.  Brian points out the amazing fact that the average person, when fully informed just how far Roe and Doe reach, does not agree with these Supreme Court findings. What that means is your neighbors, and the average person, even in California, more than seventy percent of Californians do not agree with unlimited abortion on demand. In Roe v. Wade, Justice Blackmun declared he did not know when life began, and from that point on, the entire decision refuses to recognize the life of the child or the rights of the child at any time within the womb. In Doe v. Bolton, again Justice Blackmun, the author, wrote it as a companion decision to work with Roe and it then institutionalized a new abortion law across the entire nation - overturning the laws of every state.   Such judicial legislating is in direct violation of the constitutional role of the Supreme Court.  In Doe, Blackmun does not refer to the life of the mother, but in fact explicitly instructs the abortionist regarding the “health“ of the mother. He defines health as including “familial, psychological, emotional, factors – anything that may impact the well-being of the patient.” He does not use the word “mother” as this would imply there is a child.  The generous instructions to the attending abortionist are based on the abortionist’s opinion of the well-being of the mother and not on the woman’s immediate opinion. This is significant in that there are many women who have indeed gotten up from the abortionist table to refuse an abortion. Women can be very torn about the actions at hand. Justice Blackmon is clearly stating it is the abortionist’s decision whether or not to do the abortion. He is situated to ‘guide’ the woman if her psychological ‘alarms are going off’   It is this passage in particular that has drawn great fire from radical feminists, because they believe it is not up to the abortionist, a paternalistic decision-maker, but in their mind, abortion should entirely in the realm of the woman’s decision. When the average American fully understands the far reach of Roe versus Wade, they do not agree. What that means is, our job is to explain what Roe really does. Our job is not to explain our theology or philosophy or our opinion of when life begins.  We can discuss that later.  If they agree that Roe goes too far, we should accept that wise conclusion.  They are on our side and want a pre-Roe world.  If you demand they accept all of your ideas at once you are pushing away your natural allies.   Only if they are in a more unusual position of being a judge or actual lawmaker, then extensive philosophy and proposed options to Roe should be examined. In the meantime, if you can get them to understand Roe, they are very likely to disagree with Roe.  THAT is a win, and the more folks that demand Roe’s overturn the better.  Until Roe is overturned there will be no laws written - so if they are with you, let them know they have some insight, let them know it is good to disagree with Roe.   Your job in this present moment is to restore the legal right to life.  That can only be done when Roe is overturned. Let them help!!! 

The right to life is a very specific thing. It is an assertion of a legal principle. It is not an expression of feelings, or of personal theology, but rather an assertion that the duty of government is to protect innocent lives. The abortion controversy has taken a dramatic turn in 2019 with the adoption of laws in some states and proposals in others, that abortions be legalized throughout the entire nine months of pregnancy, and in the situation where a child is born alive in the course of the abortion that that child be set aside to die. This has caused an alarm both within the pro-abortion camp as well as the pro-life camp.  The President has proposed in the Senate a measure that would assure that a child born alive in the process of abortion get full protection under the law. Numerous quotes from television and radio broadcast as well as the statements of Governor Cuomo of New York and Governor Northam of Virginia are included in today’s program.  Our host to Brian Johnston points out that this is a tremendous opportunity for the average person to learn exactly what it is that Roe versus Wade has allowed and the unlimited nature of abortion as it exists under Roe v. Wade. It is because of the soon possible demise of Roe that abortion advocates are seeking these freedoms in the various states.  Brian reminds the listeners of the real facts of Roe v. Wade and Doe v. Bolton. Under our nation’s Supreme Court abortion regimen the child has no rights whatsoever. The only reference to the child is a brief statement by Justice Blackmun in Roe, “…we don’t know when life begins.“ With that sweeping statement no legal protection is offered to the child in the womb throughout pregnancy.  In Doe v. Bolton, Blackmun offers complete license to the doctor to perform abortions through any of the trimesters, even later, based not on the mother’s life being in danger, but on a vague description of generic health. “…the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.” Roe v. Wade authorized abortion on demand but the abortion sympathetic media insists on reducing it to a matter of “choice” and misrepresenting the nature of both the Roe v. Wade and Doe v. Bolton decisions. We now have an opportunity to talk about how abortions are being done, how late they are being done and how offensive they are even to the average person who does not consider themselves to be pro-life. These are living, squirming children, big enough to hold in your arms. Now is the time to communicate just how deadly and how extensive the Roe versus Wade decision is.

Today’s show comes to you straight from the SIG Spring Summit last week in Washington DC, and features Danny Ertel, the founding partner at Vantage Partners. Danny’s practice focuses on helping buyers and providers of services enter into, manage, and when necessary, remediate their relationships. Danny is a lawyer by training, and prior to founding Vantage Partners, he served in a number of high profile roles including as a law clerk to Justice Blackmun on the U.S. Supreme Court and as a Senior Researcher at the Harvard Negotiation Project. Danny has co-authored four books, including “Getting Ready to Negotiate – The Getting to Yes Workbook” with Roger Fisher, and is frequently cited in publications such as The Economist and Harvard Business Review. I have followed Danny’s work for a long time.  He first came to my attention as a thought leader and subject matter expert when while I was a Category Manager for Outsourcing & Offshoring, and I was delighted to welcome him onto the show. We focused our conversation on ways in which we can turn around difficult relationships, both with suppliers and internal stakeholders.

The Roe v Wade decision struck down the law of all 50 states. In the decision Justice Blackmun admitted a right to an abortion was not to be found in the Constitution but instead 'emanated from a penumbra' (Latin: almost a shadow) of the Constitution. Judges who look to the Constitution will soon overturn the sweeping and controversial dismissal of human lives. Will you be ready for that? Air Date: N/A

The Serial podcast, about the 1999 murder of Hae Min Lee and subsequent conviction of Adnan Syed, has become the most popular podcast ever. In our first anniversary show — which, sure, we could have broken into two parts but consider this super-sized show our gift to you for the holidays — we talk with listeners and past guests about their own reactions to the show and to the case. We discuss reasonable doubt, race, procedure, evidence, voyeurism, what we think, what others think, and the inherent (but vastly improvable) tragedy of criminal justice. Guests: Hunt Wofford, Nathan, Anthony Kreis, Jasmine Guillory, Mehrsa Baradaran, and Dahlia Lithwick. (Several of our guests responded to a call to listeners that we posted on our Facebook and Twitter feeds. Follow us to be in on such things in the future.) This show’s links: Serial, the most popular podcast ever Willa Paskin, Totally Obsessed Christian Turner, Bet Your Life Before You Impose Death About Hunt Wofford Mythbusters Links to some Serial parodies Murder on a Sunday Morning About procedural justice About Anthony Kreis and his last appearance on our show Debra Cassens Weiss, Posner Questions Basis for ‘Archaic’ Hearsay Rule The Scottish “not proven” verdict About Mehrsa Baradaran and her first and second appearances on our show Susan Simpson, Serial: Why the Nisha Call Shows that Hae Was Murdered at 3:32 p.m. About Dahlia Lithwick and her appearance on the show Dahlia’s new podcast, Amicus, and her video interviews on SCOTUSblog Dahlia Lithwick, A Horrifying Miscarriage of Justice in North Carolina Justice Scalia’s concurrence in Callins v. Collins (criticizing Justice Blackmun for not using the McCollum case, with its brutal facts, for dissenting from the imposition of the death penalty) Justice Blackmun’s subsequent dissent in McCollum v. North Carolina, addressing Scalia’s concurrence Brandon Garrett’s page, featuring his recent books Special Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.

On the eve of the 38th anniversary of the Supreme Court's decision in Roe v. Wade, I realized that I had never read the full, original decision. In this podcast, I read aloud the opinion of the Court, which inquires into, ''and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitude toward the abortion procedure over the centuries.'' Justice Blackmun discusses ''Ancient Attitudes, The Hippocratic Oath, The common law, The English statutory law, The American law, The position of the American Medical Association, and The position of the American Public Health Association.'' I discovered many fascinating insights into the underpinnings of the current abortion battles still raging in 2011. Part Two to follow in the next day or so.