Latest / Catholic Spirit Radio / Catholic Conversations #191: When Courts Rewrite History: The Road to Roe and Its Reversal

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Catholic Conversations #191: When Courts Rewrite History: The Road to Roe and Its Reversal · Catholic Spirit Radio

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Catholic Conversations on Catholic Spirit Radio.
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Good day. Welcome to Catholic Conversations. I'm your host, David Liptak,
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and we're here today with a special guest, the Honorable Retired Circuit Court
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Judge Don Bernardi. I'll try to get that straight.
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Maybe I'll just call you Judge. I think that'll be what we'll do. So, welcome, Judge.
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Let's go ahead. Thank you. Let's go ahead and start off our show here with prayer.
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I like to go ahead and utilize the memorary.
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So, in the name of the Father, and the Son, and the Holy Spirit, amen.
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Remember, O gracious Virgin Mary, that never was it known that anyone who fled
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to thy protection, implored thy help, or sought thy intercession was left unaided.
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Inspired with this confidence, I fly into thee, O Virgin of virgins, my mother.
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To thee do I come before thee, I stand, sinful and sorrowful.
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O Mother of the Word incarnate, despise not my petitions, but in thy mercy, hear and answer me.
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Amen. In the name of the Father, and of the Son, and of the Holy Spirit, amen.
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So, in light of the most recent March for Life, January 23rd,
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the 53rd annual march, no less, from the National Mall to the Supreme Court,
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we had our Vice President, J.D.
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Vance, I guess the second time he got mentioned in the presentation there.
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But we're going to be discussing the overturning of Roe versus Wade, and how did we get there?
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And Judge Bernardi is going to go ahead and give us the expertise and the background
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that he's experienced and is going to go ahead and share that with us.
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So Judge, can you give us a little bit of background about yourself first?
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I can't thank you. Married my wife Joan and three children.
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First came to this area as state's attorney in Livingston County, so that's,
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way back in 1978. And I was an assistant then state attorney in 82,
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became a judge in late 91.
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I was appointed as a associate circuit judge and then was later elected as a
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circuit judge. There are two levels of judges.
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And I retired in 2008 at the end of the year.
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Okay. So now, forgive me, I might be reading it. Did you do any teaching as
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well in this background? I did.
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I taught at Illinois State from about 21 years, 2002, about 22,
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right about, I quit right after COVID.
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Gotcha. So I taught a couple of classes each year.
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We were allowed to do that as judges. It's the only other job,
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actually, a circuit judge can do. Is that right?
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Yes. I'll be darned. So, so.
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I was privileged to go ahead and be part of a presentation that you offered
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to the Knights of Columbus many years ago prior to the overturning of Roe v. Wade.
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And then you were very gracious to go ahead and participate and lead the first
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night of a three-part class that I had offered, Arguments Against Abortion,
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after the overturning of Roe v. Wade.
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We had a very good crowd, I think 50, 60 people in the parish hall over at St. Patrick's here.
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And it was very well received. It certainly generated a lot of interest, a lot of conversation.
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We had a number of vendors, I call them vendors here, supporting the right to
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life as far as what you can expect for help should you be in a situation where
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you may be considering abortion and not have to go through that.
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So it was a very inspirational evening. We certainly appreciate you doing that for this, Judge.
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So again, let's go ahead and kind of delve into it. How did we get to Roe v.
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Wade and then eventually the overturning of it?
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Well, if you're going to believe that to me, I started the conversation at the
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church presentation, and I'd like to start it here with basically the judicial
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philosophy that got us there.
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It is important to recognize there are a couple of schools of thought that have
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developed for judicial interpretation,
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and they really are on display in these cases,
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and I think the original row one was...
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Can be identified as one of the two schools who taught the living constitution
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theory of interpretation.
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And then no doubt in my mind that the overturning of Roe reflects a more strict
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constructionist interpretation.
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And to me, those are central to how we got here.
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So can you delve into a little bit more as far as the strict constitutionalist?
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In terms of like a definitions for those of us who don't have the legalese background as such.
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So for the layperson, what is a strict constructionist? Is that what it is?
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Interpretation. Please. Probably the best way to describe it. Yeah.
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And actually, I talked about my favorite Justice Scalia when we discussed this
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originally, but it actually is attempting to.
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Make sense of the words used, as we all know they're very important in our language
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and certainly in the law, to make sense of the words that were used in the Constitution
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when trying to determine how to rule.
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So if the law means whatever a particular judge on a particular day and a particular
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year says it means, and it can change tomorrow, if a new judge looks at that law.
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Then it's pretty much useless.
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So the strict interpretation suggests that there is only one way to look at
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it, and the way to look at it is to try to decide what the meaning was by those
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who wrote the words in the Constitution.
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And in other words, it's not something that's going to change from year to year,
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pretty clearly, based upon what I just said.
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And the other theory, which is promoted in all the law schools,
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but there's no doubt that that's the predominant theory taught in law schools
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is the idea that the Constitution is a living,
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breathing document. I think I quoted it.
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Former Vice President Al Gore, in my talk because he was a proponent of that.
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And those folks think that you've got to look at where America is today,
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not where it was when the Constitution was drafted, and make your decisions
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on what the meaning of words in the Constitution are based on our current status in this country.
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So I think, I hope that describes both of them well.
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Very, very, very well indeed, in fact. I certainly appreciate that.
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So the two things that come to mind, you mentioned Nell Gore at that time.
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That's not that many years ago that the, I'm going to call it kind of the relativism
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of the times kind of started playing or had a greater role in some of these court decisions.
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But that's not always historically the case as time has come by.
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I guess more recently, going back to, I guess I want to say prior to Roe v.
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Wade, there was more of that traditional understanding. Would that be accurate?
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I think that's fair to say. I think that is fair to say. And I really do think
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it's a product of the law schools and the professors in the schools who've changed the way they've taught.
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And, you know, the living constitution theory is the favored one has been probably
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for 40 years. and because of that, the judges have that bent, have that philosophy.
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They're the ones being appointed and elected to the courts in the country and the rest is history.
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I mean, you can expect a result based on that when enough judges or proponents of it are on the bench.
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Well, you bring up a pretty good point. The current bench,
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fortunate in least respects for those who are pro-life or have the fortunate advantage of having,
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shall we say, more of the traditional understanding of the Constitution rather
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than the interpreted version of that.
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But that doesn't necessarily mean
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that years down the road that it could change. Would that be accurate?
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Well, it is accurate. And you're correct that probably the majority are circunstructionists
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right now or lean that way.
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And minority would be the living constitution theorists.
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But every single president that's elected has the ability to change that based
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upon vacancies, as we know,
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or if Congress decides, as there's talk all the time about the possibility of
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just expanding the court.
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And if you expand it when a certain person is president, then all the appointments
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are going to be that president's philosophy. So you can see what can result
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from that as well. So there are,
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Many ways that this could occur in the future in terms of switching back or
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staying the same, I should say.
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I was going to ask you about that. The packing of the court,
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I guess, is what the terminology we lay people utilize.
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But as you said, that can change at the drop of a hat relative to the next president
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and the desires of the president.
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Now, to go ahead and have that happen, though, the president himself can make
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that decision. doesn't it have to go through congressional approval?
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Yes. No, it would be Congress. Yep. Okay. Correct.
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So, again, depending on which way the majority is in Congress,
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could mean that years down the road, well, not that many years down the road,
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this could come up for contention.
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It would. And you probably have to have the trifecta in politics.
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You probably have to have the White House, Senate, and House.
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In order to do that, they'd have to be aligned, I would think,
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in order to expand the court, for example, and then make all the necessary appointments.
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You know, you'd want, as the president, you want those to be confirmed,
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so you want to have control of the Senate.
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So it would, I think, require all three branches at some point.
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That was, pardon me, but that could lend itself to, you know,
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anytime there's a new administration that that could be revamped, could it not?
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I mean, they say, well, we're going to have 11 or 15. Does that mean the next
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administration comes in? Well, now we want to have 20, 21?
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So we can appoint another half a dozen or eight. Yeah, you're right.
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And that's the, you've just made the most compelling argument against it.
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It's the fact that, you know, you should not be,
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changing these traditions. There's a reason it was set up the way it was,
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a number for obvious reasons. There are nine numbers.
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And, you know, changing it is probably not a great idea.
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Most sides can understand that just what you said, as soon as the party that
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did it is out of power, then the other party can either go back to it or expand it again.
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There's There's no end to it. Well, excuse me.
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Getting back to, again, there really is no end to it in that respect for sure.
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But what I find interesting was the actual application of the decision by that
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particular bench during Roe v. Wade.
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And if I remember, you mentioned something that there were some ambiguities
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in the interpretation of, would that be the 14th Amendment possibly?
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That they didn't really rely on or they stretched or made an interpretation
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that was not necessarily along
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the lines of being a strict interpretation? Help me out if you would.
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Yeah, it is interesting that the decision actually mentioned both Roe and the Casey case,
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which further illustrated or expanded upon Roe in upholding abortion.
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But Roe was the one that fashioned a right of privacy from the 14th Amendment,
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and Casey kind of expanded on it.
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Those justices said, well, it's also a part of liberty, which is identified in the 14th Amendment.
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And, you know, this case...
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Reversal, found neither to exist.
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Well, certainly there is no right to privacy enumerated in the Constitution,
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but the original Roe Court famously found it to be a penumbra,
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if you remember that word,
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or a part of the enumerated rights, the identified rights there in both the
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14th and in the Bill of Rights.
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So they did kind of create that out of nothing, which is One of the frustrations
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you can plainly see in a reversal decision,
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the one we're talking about today, it's pretty obvious that the justices were
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frustrated with the manner in which the Roe Court originally analyzed the abortion issue.
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Well, you'd mentioned at the time that the original included a liberty of privacy, correct?
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Well, yeah. It found it to be, the abortion right to be a part of the privacy
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right, which doesn't actually, it's not an enumerated right.
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Again, it doesn't exist other than, right, the court's creation in the 14th.
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And then Casey kind of said, well, recognizing there is no right to privacy,
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that it really is a part of the liberty right.
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Phrasing in the 14th amendment and again
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that the court had quite
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a bit to say about that including you might recall quoting
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abraham lincoln who said something
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about you know we all declare for liberty but we
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don't all mean the same thing and there are all kinds of interpretations of
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what liberty should be and when it's not enumerated when abortion is not named
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in the constitution You've got to find it to be deeply rooted in our nation's
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jurisprudence and history.
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So that's what the royal court tried to do originally.
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And it's, again, part of the frustration that the Dobbs court had in reversal
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because they didn't find it that that was satisfied, that there was this deeply
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rooted history for abortion.
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From the historical standpoint, I think we'll delve into that coming back.
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I'm going to take a quick break here, and we'll touch on the historical aspects previously.
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In just a minute. So I want to go ahead and again, let you know that you're
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listening to Catholic Conversations and we have the pleasure of reviewing and going through the Roe v.
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Wade decision or overturning the Roe v. Wade decision with the Honorable Judge
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Don Bernardi. We'll be right back.
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Welcome back to Catholic Conversations. I'm your host, David Liptak,
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and we've got the pleasure of talking with the Honorable Judge Bernardi in regards
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to the Supreme Court decision to override Roe v.
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Wade and kind of looking at the historical aspects of the initial decision and
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some of the circumstances,
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interpretation and the like, and the judge is doing a fantastic job trying to
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go and explain it to even simple people like me, and I hope that you're enjoying it as well.
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Judge, welcome back. And we were talking about the historical aspects, I think,
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before we left, and just some of the impact that Roe versus Wei had,
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but the decision on that wasn't always the mainstay, if I understand correctly.
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That wasn't the main line for the Tsars of the Country's interpretation for the longest time.
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Well, yeah. The decision points out that at the time Rose decided,
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was that 71 or 72? I guess 71 maybe.
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30 states still prohibited abortion at all stages.
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So why is that important? because if the right is not enumerated in the Constitution
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and there's no mention of abortion,
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so not enumerated, then it has to be found in some other way in our firmly rooted
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jurisprudence history, whatever it may be.
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It has to come from there. So the justices asked to,
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Obvious question when they look at surveying the states and what the laws say,
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well, what is firmly rooted about these prohibitions?
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No one's allowing abortion.
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It's all prohibitions and curtailments of its use.
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And, well, I guess there were a few that allowed it under certain circumstances.
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But primarily, you can't say it was firmly rooted in the jurisprudence of the country,
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which is what is generally required to find a non-enumerated,
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non-listed right to be found by the justices.
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So that was one of the big flaws, I guess.
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And not only in my view, but I think with the court, that's where they really
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struggled, one of the areas they really struggled with in Rome.
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Well, and again, I don't have legalese, and that's why we've got you that we're talking about this.
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You have to have some type of precedence beforehand to go and say we're going
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to draw on history or we're going to draw on experience to at least consider
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moving forward with some type of decision, certainly a new decision. Would that be right?
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Well, absolutely. That's exactly correct. And how frustrating to read the Roe
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case where they actually acknowledge in many areas of that decision that this
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history and jurisprudence is not with them on abortion,
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but yet find it to exist in either liberty or rights to privacy,
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which is not in the Constitution either.
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So it was a difficult read for those who were strict constructionists and who
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liked to find the meaning within the constitutional text itself as opposed to
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inventing it, as I think is fair to say.
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The word liberty or some other word. I like your definition, inventing it.
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That's pretty accurate as far as my simple interpretation would be, that's for sure.
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But we had, I mean, it was literally outlawed for the longest time as far as
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abortion was concerned within the states.
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So they had some serious uphill climbing to go ahead and try to literally overturn this.
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Well, yeah, they did.
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And the logic of Roe has always escaped me, so it's so hard for me to try to
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marshal the argument and make sense of it, because it just never did make much
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sense to me. But you are correct.
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It was an uphill climb, because it's not something firmly rooted.
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What is firmly rooted is the opposition to abortion.
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It's the exact opposite of what they tried to accomplish.
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So, you know, that truly was climbing a...
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So essentially they ignored what was historical evidence and the majority and
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decided to kind of, you know, blaze their own trail in bringing this up for even consideration.
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Yeah, they did. One of the most tremendous quotes of Thomas Jefferson applies to what they did.
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And I think I've got it somewhere in that presentation that you heard.
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But Thomas Jefferson said, instead of trying what meaning may be squeezed out
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of the text or invented against it, judges should conform to the probable one in which it was passed.
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And so there's no better description of strict constructionists.
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You know, you should try to figure out what the meaning was by the authors of
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the words you're trying to interpret and not invent against it.
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So maybe that invented that I had in the back of my head is coming from the
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Thomas Jefferson quote.
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But that is kind of what they did is come up with something to reach a conclusion
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that they wanted to reach.
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So they had the feeling that the 14th Amendment provided this.
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Yeah, they thought that it was, I'm sure this is true, that they genuinely did
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believe it was within the liberty, the meaning of liberty.
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But, you know, the countervailing argument to that is awful powerful.
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That is that it was neither stated. You know, if the founders intended to have
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abortion be legal, then they could have said it.
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I mean, in the end, anything that's not in the Constitution,
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you can always use this argument.
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Well, then why didn't they say it? And of course they didn't.
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In fact, it was roundly prohibited back then.
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So how do you then find it to exist? And really the only way to do it is...
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This living Constitution theory, because I don't think you can fairly say if
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you're a strict interpretive judge that it existed back when the Constitution was created.
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So you have to invent against it, as we said. Well, to your point,
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if there wasn't a specifically exact location in the Constitution,
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was it not that important?
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And then in the other cases, if it wasn't that much of a paramount importance,
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then I guess you could have a feeling and interpret it any way you'd like,
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which I think opens itself up for all kinds of perils going down the road with
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respects to liberty or the interpretation thereof.
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Yeah, I agree. And there are not a lot of examples of this occurring in history.
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I mean, we don't have a lot of reversals like this in the history of the Supreme
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Court, and it's a very rare thing.
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And maybe we ought to be happy that this mistake is rarely made because the
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Dobbs case, I really do think,
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corrected an error in reasoning and judgment by the court.
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And I think now there should be a good path forward with cases like this.
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You mentioned the liberty error a couple of times here, and the human tendency
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to confuse just what the amendment actually protects.
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But the court, I guess, has been, I think you mentioned that,
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reluctant to recognize the rights that are not mentioned in the Constitution. Yeah.
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Yes, exactly. And if you're going to find one that is not specifically mentioned,
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then you need to substantiate it with history and laws and jurisprudence and
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all kinds of things to justify it.
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Legal scholars who have written about it, something. You need to find some support.
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So, somewhere along the line, we had to go ahead and at least consider the validity
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of life in an abortion in this particular case.
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And I don't know, you certainly can elaborate on that.
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Was there any consideration as to what the determination of life or when life begins?
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No and in fact there was a discussion among a lot of legal scholars judges and
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all kinds of people that one of the problems with Roe v. Wade is there was never a,
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trial in the sense that we would have,
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someone would have presented evidence on that issue when his life began,
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because as you know, there is no discussion about whether it's taking a life,
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and we probably ought to be having that discussion,
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but there is none because there is no trial in which a definition of when life
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begins was presented by evidence, doctors, whatever,
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and a ruling made and then reviewed by the appellate court.
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So this is a big flaw. If that had occurred in Roe, for example,
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then at least the justices could debate that.
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Was the evidence sufficient to establish that life began at whatever it is,
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X number of weeks, whatever it is?
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They would at least have something to debate and rule on, but that was never done so it.
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There are a lot of scholars, I think, that criticize correctly the manner in
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which that royal case ended up in the Supreme Court without the evidentiary
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foundation we're used to.
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You know, if the very first time a speed gun was used to stop,
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to figure out the speed of your car,
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it had to be proven scientifically that that is capable of establishing the speed of your vehicle.
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And there had to be a trial in which that was presented, and the appellate court
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had to say, yep, that's correct, it's proper science, and the Supreme Court
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had to agree as well before they could use that speed gun.
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Well, in Roe v. Wade, it's life.
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When does life begin? Well, without a determination or predetermination to that
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fact, you're leaving out, at least in my opinion,
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the key element in this discussion, in this decision.
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And go ahead. No, you're absolutely right. And it's poor trial practice.
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You can call it what you want, but someone should have thought at the time this
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case was being litigated that we need to stand or fall on the issue of life and when it begins.
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You know, 14th Amendment says that you cannot deprive any person of life,
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liberty, or property without due process. Well.
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You really do have to ask yourself the question, if abortion takes a life,
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why was there due process? Exactly.
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Okay, so, and we know the answer, there was no process. So there certainly couldn't have been due process.
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So if there's no due process, then why wasn't this one of the central arguments?
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Well, it's because it was not raised at the trial court.
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And that's the real fallacy. Had that been raised at the trial court,
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if they had attempted to establish when life began, whether they're right or not,
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the appellate and Supreme Courts would have decided if they were right or not
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and remanded it for further evidence if it was deficient.
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But at least that would have given us a standard to measure the 14th Amendment plan.
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Now we can decide whether the fetus, the baby, can be terminated and decide
30:04
what due process would justify terminating.
30:07
We never got there. So if I can, where does that responsibility lie?
30:13
Who or what department or any—who should have brought that up as some type of
30:19
contention to at least fill that gap or fill the void to at least come to a better conclusion?
30:27
Well, one of the two lawyers in Roe v.
30:30
Wade, and I suppose Roe, I believe, was the woman who was pregnant.
30:35
So Wade was either a, and I don't have the case in front of me,
30:40
so I don't know the names, but Wade was either a state official,
30:46
a county official, or another party.
30:48
And that party, the Wade side, I suppose,
30:52
would have been the one who was opposing abortion in that case,
30:57
who had the obligation to present that evidence and try to convince the court
31:01
that you can't do this because life exists and you're taking life without due process. Yeah.
31:09
That didn't happen, of course. Yeah, you're 100% correct. Just looking at some
31:14
of my notes here, Henry Wade, district attorney of Dallas County in Texas.
31:18
Oh, okay. Was the prosecutor at this point.
31:22
But he was, I guess, under the assertion of an absolute right to terminate a
31:28
pregnancy in any way at any time.
31:30
Instead, the attempt to balance what was regarded as the fundamental right to
31:34
privacy for, in this case, Roe, I guess her name was Norma McQuarrie,
31:40
McQuarrie-V. I think that sounds right. I think so, right? Yep.
31:43
So, the right to privacy falls into the broad spectrum of saying,
31:50
well, she has the right to go ahead and take this, the life of the child,
31:53
depending on what the interpretation was.
31:56
But that was never brought up within the court case at all is what you're saying, right?
32:01
Yeah, the focus was on Roe.
32:06
And it's too bad that the government official didn't, it didn't dawn on a government
32:11
official that the way to attack this, the way to present this is to flip the
32:16
script and focus on the fetus, the baby,
32:21
and say that the baby has a right to life here.
32:24
Wait a minute, a right that the mom can't defeat, and we want to litigate that
32:30
judge, and we're going to present whoever,
32:33
scientists, doctors, whoever, to establish when, come up with a definition and
32:38
establish when life begins, and at least make that a line of demarcation.
32:43
If you come up with that, at least you can say, you know, the Supreme Court
32:46
just off the top of their head came up with this trimester, and there's no real
32:52
good evidence of that either, although I think they.
32:56
They thought they were relying on some evidence. But, you know,
32:58
again, if this had been fully litigated at the trial court, they would have
33:01
had a good record that they could have accepted or that the court can always
33:06
remand in order the court to redo an evidentiary hearing.
33:10
And that would have been a simple—they didn't find it adequate.
33:13
They could have had that as a remedy.
33:15
You bring up a good question. I was just thinking, well,
33:19
I would have thought it would have been very, I shouldn't say the word judicial,
33:24
to at least go and explore that as a Supreme Court to say, well,
33:29
maybe we should look at this aspect of this particular case,
33:34
rather than the sole exclusivity of the right to privacy,
33:39
whatever it happens, liberty of Roe.
33:41
And leaving out everything that would be a possibility to even consider the
33:47
child that she's carrying.
33:48
Well, that would have probably been a mistake as egregious as the one Roe made themselves.
33:55
And what I mean by that is that it was not in the record.
33:59
It was not something that they received from the trial court,
34:04
that issue. And so they really can't add issues to the litigants' case.
34:12
The litigants did not deal with in any way when life begins and didn't make
34:19
a trial court record about it.
34:21
And so the Supreme Court was stuck, unable to analyze it. so that you can see
34:28
how significant that error or omission was because it didn't allow them to look at all,
34:36
when life begins, and then flip the switch and discuss what about the child's right to life.
34:42
Well, there's a whole sequence of misnomers here that things were left out that
34:47
could have had such a significant bearing on this decision before it even got to the Supreme Court.
34:53
Well, let's go ahead and take one more break before we proceed.
34:57
You're listening to Catholic Conversations. I'm David Liptack.
35:00
And again, once again, we have the pleasure of the Honorable Judge Bernardi,
35:05
retired now, that's informing us on the progression of Roe v. Wade.
35:10
And we're going to come back with some more information and come to a conclusion
35:13
here, some of the finer points that the good judge will share with us. So we'll be right back.
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37:05
Welcome back to Catholic Conversations. I'm your host, David Liptak.
37:10
We've got the pleasure of speaking to the Honorable Judge Don Bernardi, reviewing the Roe v.
37:17
Wade case and then the overturning of Roe v. Wade. I'm looking forward to get to that as well.
37:22
But one of the things we were just talking about was the bringing in unusual
37:28
arguments because we weren't sure about why they didn't bring in the case of when life begins.
37:33
So that wasn't even brought into the case. But I guess there were some unusual
37:37
arguments that were made by non-parties seeking to the preservation of the abortion right.
37:43
Yes, they were. They're called amicus briefs. And it just means it's Latin for,
37:52
I believe it's Latin for friend of the court.
37:54
So parties who are not involved in the litigation are allowed to ask the court
38:01
permission to submit a brief in support of one side or the other.
38:06
And so it's very common that that occurs in the Supreme Court of Illinois and
38:10
the Supreme Court of the United States. And it did happen in this case.
38:14
And, you know, you mentioned something that may well have been an avenue for
38:20
some organization to have submitted a brief request.
38:26
Dealing with the issue of life and the right of the unborn to live.
38:31
Because, and I say that because the ones that were submitted,
38:36
I mentioned a few in my lectures, you might recall, were really not very well
38:42
received by the Supreme Court, and they were critical of them.
38:45
But one of the amicus parties that suggested that the criminal statutes that
38:51
were in effect were adopted for illegitimate reasons because it was a little
38:56
bit of a population control vehicle
38:59
because Catholics were having too many babies, more than Protestants.
39:04
And, you know, that's out there thinking, and I think the Supreme Court recognized
39:09
that and was not very impressed with that argument.
39:13
So I didn't spend a lot of time in the lectures, you might recall, but,
39:18
you know, I did note that the Supreme Court was critical of those who did submit
39:22
it, And it looks like they were, I didn't do a survey, but it looks like they
39:26
were on the side of maintaining abortion as a right.
39:31
Well, and here again, if you were looking at historical data to go ahead and
39:37
at least consider what your decision may be based on,
39:41
once again, they kind of just thumbed their nose at it and moved on and said, thanks, but no thanks.
39:46
We're going to go ahead and proceed down this path anyway, regardless of any
39:51
arguments on any alleged legislative motives, right?
39:55
Yes. Yes, I agree. So, can you explain to me what would have been an opportunity
40:02
of the context of dissent from a legal standpoint, if you don't mind?
40:07
Yeah, I did talk a little bit about this in that lecture, and the Supreme Court was,
40:16
I think, pretty accommodating to the dissent's position, what they were proponents of, but point out...
40:28
I think this is important, that the dissent was very candid,
40:32
that it couldn't show a constitutional right to abortion. Everyone knows that.
40:35
There's no constitutional right enumerated. So they also had to acknowledge
40:40
there was no deeply rooted one because, you know, that's established law.
40:46
They know what it means, and they admitted they couldn't find it in the nation's history and tradition.
40:52
So that's pretty significant. And that's three judges prior,
40:56
Sotomayor and Kagan, who that was part of their dissent.
41:00
So they simply have to be honest. And that's good that they couldn't identify
41:07
any pre-rule authority that would support this right.
41:10
So it's good that they're honest in that way.
41:14
And it's good that they're recognizing the path that the majority took.
41:19
I mean, that's what it's doing is recognizing the path. They don't agree with
41:22
it, but they're at least recognizing it.
41:25
And I guess one of the things that is really significant, we've already talked
41:30
a little bit about this, is the dissent's absence of any state interest in the
41:37
protection of fetal life.
41:39
And again, that goes back to the fact that this, I believe, was not in the trial
41:45
court originally and therefore didn't end up in the original Roe decision.
41:52
And no one discusses it and it's unfortunate they don't.
41:57
I don't know what the Supreme Court would have done if it was a big part of
42:02
Dobbs' case, but it doesn't appear to have been a significant part of it,
42:07
and I think that's, again, going back to the trial court, what's happened.
42:12
And I guess, certainly you know better than I, they're at the mercy of what's
42:16
presented from the evidence from the trial court, and that's what they have
42:19
to base their decision on.
42:20
So if the trial court doesn't go ahead and bring up any of the amicus briefs,
42:25
for instance, then they don't have to consider it? Is that right? Right.
42:29
No, I think that is correct. And I think since the trial court and the original
42:33
Supreme Court decision in Roe focused solely on the mother's rights, then that was the task.
42:42
Does it exist in the Constitution or not?
42:46
I guess you could have imagined a decision. You could make one up that focused
42:51
totally on the child's right to life.
42:54
And I guess this would be an interesting, you could do a play on this where
42:58
you flip the script and created a trial about that in the original Roe.
43:06
I don't know what your result would be. You'd have to come up with a definition of life.
43:10
I mean, some enterprising author could come up with this.
43:13
But, you know, you could imagine what would have happened if Roe had taken this
43:20
tactic, the right of the baby, to the potential life that is destroyed by abortion.
43:27
And is that embodied in the 14th Amendment?
43:30
Let's look at whether it's due process and all those things.
43:33
Well, the liberty of a potential life, I just put it out there.
43:38
There you go. Yes, there you go. So it's, I think, as rational as the liberty
43:44
that they found in the original role. So, yeah.
43:48
Interesting. Interesting. So we're talking about the dissent aspect of things, too. Yeah.
43:56
We have no regard, anyway, for
43:58
the state's interest in protecting the prenatal life, as you mentioned.
44:03
So, nothing in the Constitution or our nation's legal tradition authorizes the
44:08
court to adopt that theory of life?
44:10
Is that—that seems to me—I'm sorry, it seems very narrow-minded to me.
44:15
Yeah, well, I mean, this is interesting how it's glossed over because the dissent
44:21
essentially says that the Constitution requires the states to regard a fetus
44:27
as lacking even the most basic human right, and that is to live,
44:32
at least until some point, which some call arbitrary and the pregnancy has passed.
44:39
So, you know, they really don't focus on that.
44:43
Again, it's all the progress of the pregnancy and the standard of trimester
44:49
that the row court set up, not focusing in the least on the right to life,
44:55
the basic human right to life.
44:57
So it is a fascinating juxtaposition that occurred in this case that kind of.
45:05
I mean, what is more important, the life or convenience of a human being or
45:12
whatever the reason may be of a human being to have the abortion?
45:16
What is more important, that life that is or is not created or the convenience
45:22
to the person or the right of the person?
45:24
And you didn't have a good line of demarcation there in the arguments,
45:30
neither dissent or the majority spent much time on it.
45:34
So it wouldn't have gone either way, at least not in that decision-making process.
45:39
Had it been done originally, you mean the discussion of life? Yes.
45:45
Yeah, we just don't know. I think that's a subject for fiction now.
45:49
But it's a fascinating one to imagine if they had concentrated on that instead
45:55
of what they did. Mm-hmm.
45:57
It seems that that was overlooked in the trial court and therefore in their review process as well.
46:04
Well, and as we move forward here over the course of the last 50-some years,
46:10
I'm sure there were other cases that were taken into consideration because there
46:14
were a number of, I guess, circumstances where the Roe v.
46:18
Wade was challenged since 71, 2 or 3 or something in that area. Is that accurate?
46:24
Oh, yeah, absolutely. And without much success in succeeding cases,
46:29
because the opponents of abortion had the opportunity several times after Roe
46:36
to try to tweak it, to try to challenge it.
46:39
And, you know, Casey pretty much reaffirmed it, but elaborated a little more on the 14th protection.
46:46
And famously, Justice Ginsburg is the one who lamented that she thought if the
46:54
original case had concentrated more on the 14th as a basis,
46:59
and equal protection, I believe, was her idea,
47:02
they might have had a lush,
47:04
sound legal basis to uphold the abortion.
47:10
So, moving forward, the process of overturning Roe v.
47:16
Wade came down to a decision of the Dobbs case. That would be accurate, right? Yeah.
47:24
Can you give us a little, please give us a little insight as to the Dobbs case
47:29
and the premise, and then how that affected, essentially, the overturning of Roe v. Wade?
47:36
Well, I think Dobbs directly challenged the right to abortion and allowed the
47:41
Supreme Court to take another look at it.
47:45
And as I mentioned earlier, the Supreme Court,
47:49
in discussing abortion and the cases that are significant dealt with both Roe and Casey.
47:57
So they folded them together, and I think they did it on purpose because there
48:02
was a slightly different basis in Casey. It was a little more dependent on the
48:08
14th as a support for abortion than Roe.
48:11
And I think they wanted to clarify their jurisprudence by dealing with both of those issues.
48:20
And if they didn't do that, I think in the future, someone could have raised another.
48:28
In another abortion case, the fact that they should have viewed the Casey decision
48:33
as the most important decision.
48:36
So I think the Supreme Court wanted to deal with both.
48:38
They did deal with both. They found that the basis for each was flawed and reversed
48:47
them and set a precedent, I think,
48:51
that probably is unlikely to get challenged again.
48:55
Although, you know, these cases, although they do happen, you know,
49:00
I mentioned in the lecture,
49:03
Brown versus the Board of Education, there are cases where the Supreme Court
49:08
changes precedent, but there aren't a lot of them.
49:11
And the court actually mentioned some in the right decision because they wanted
49:16
to make sure everyone knew that we know it happens, but it's pretty rare.
49:20
It's rare. It's rare. Exactly. Exactly.
49:23
Well, I would think moving forward, if it were to be challenged,
49:26
then I think that you would certainly find a lot more information being presented
49:32
on behalf of the right to life.
49:36
Scientifically speaking now, I would hope so. Yeah. I would hope.
49:39
Yes, if there were ever a case.
49:42
I don't know what the issue would be, what nuance it would be of Dobbs.
49:47
But if they were to do that, I would hope that the party that represents the
49:52
opponent to the abortion would try to flush out what we've just discussed, this life issue,
50:00
put some evidence on us to when it begins, and get that in the record so that
50:05
there's a little bit different discussion by the reviewing courts.
50:10
I think that would be outstanding if that would occur, if it happens again,
50:14
if someone finds a vehicle to, you know, head it back to the Supreme Court on this issue.
50:20
I think it's unlikely, but that would be nice if they could do that.
50:24
Well, I kind of concur with you.
50:26
We were all overjoyed when we heard about the Dobbs case and the circumstance
50:32
where we overturned Roe v. Wade.
50:35
But with the evolution of science, we've not seen a reduction,
50:40
unfortunately, in abortion cases.
50:42
We actually have seen an increase from the numbers I've looked into here, which is kind of sad.
50:48
We've seen a reduction in the abortion clinics, but we've seen an increase in
50:53
the mail order pill of abortion, which is a sad circumstance in itself.
50:58
I keep leaning back to the importance of family and the importance of father-led families,
51:07
because there's certainly an inordinate number of representatives when it comes
51:13
to those having abortions in relationship to the percentage of society.
51:20
It would almost be called a euthanizing almost an entire ethnic group,
51:26
unfortunately, because of the comparison to the general population.
51:30
Whole nother topic altogether there, Judge. But if you'd like to go ahead,
51:36
we're coming close to concluding here. Any final thoughts?
51:41
I, it's, you know, we talked about the impact of Dobbs, the actual opinion itself,
51:47
and I'm reading from it, Roe and Casey abrogated the authority to,
51:53
of the states to prohibit abortion.
51:55
We now overrule those decisions and retain that authority to the people and
51:59
their elected representatives.
52:00
So the, the gist of, you know, all the complaints about Roe and,
52:05
and its reversal and Dobbs, it didn't change anything in the state.
52:11
So if a state allows abortion, it continues to. If it bans it, it bans it.
52:16
All it did was return decision-making to the elected representatives,
52:21
and I think that's the key thing to remember.
52:25
And I think you're right. I don't think the Supreme Court is going to be looking
52:29
at this anytime soon with the development of the states taking the rights in
52:34
their own hands there to go ahead and decide this issue.
52:37
Yep, I agree. Very good. Well, Judge Bernardi, I certainly appreciate your time.
52:42
It was very kind of you to go ahead and share the information.
52:46
Certainly, it's a wealth of knowledge that you were nice to go ahead and bring to us.
52:51
And again, I can't thank you enough for your time.
52:55
So we've been listening to the Honorable Retired Circuit Court Judge Don Bernardi,
53:01
and you've been listening to Catholic Conversations with your host here, Dave Liptack.
53:05
And I'd like to go ahead and conclude with a prayer, as always.
53:10
So, in the name of the Father, and the Son, and the Holy Spirit, amen.
53:15
Eternal Father, I offer you in the most precious blood of thy divine Son, Jesus,
53:19
in union with the masses said throughout the world today, for all the holy souls
53:23
in purgatory, for sinners everywhere, for sinners in the universal church,
53:27
for those in my home and in my family. For this we pray, amen.
53:31
In the name of the Father, and the Son, and the Holy Spirit,
53:34
amen. You've been listening to Catholic Conversations. Download our podcasts at catholics.com.