Grappling with a Post-Roe America

Jonah and Chris Stirewalt join Sarah to talk about the political aftermath of Dobbs v. ...

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Jonah and Chris Stirewalt join Sarah to talk about the political aftermath of Dobbs v. Jackson Women’s Health Organization as states begin to grapple legislatively with the post-Roe era. Will we reach a consensus on what life means in the womb? Our hosts also discuss the nature of Cassidy Hutchinson’s testimony during the surprise January 6 select committee hearing and the risks with the Democrats’ 2022 election strategy.

Show Notes:

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  1. Avatar photo
    Mary

    Late to listening to this pod but I am required to declare #TeamSpider!

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    Estoppel Enjoyer

    The thing about the 15-week ban in Florida really bothers me. Everyone at The Dispatch seems convinced that it’s evidence of DeSantis’ shrewd political instincts or the fact that different conservatives will go to different limits on abortion.

    But the real reason is obviously the Florida Constitution. Unlike the federal constitution, Florida’s explicitly guarantees a right to privacy. That amendment was ratified just a few years after Roe, meaning that the “original public meaning” and the meaning according to its drafters and ratifiers, was that “privacy” was inclusive of the rights in Roe. And in the last decade, there was a proposed amendment to change the Privacy protection to say that it did not protect abortion any more than SCOTUS protects abortion, and it was widely rejected by the voters (who, in Florida, are the ratifiers of the Constitution). There’s really no good-faith originalist/textualist argument in opposition to the idea that abortion is protected in Florida.

    But DeSantis has said (I think impeachable) that he will just pick justices of the Supreme Court of Florida who will read that provision out of the Constitution. But in the meantime, even though most members of the Court are DeSantis nominees, many of them likely won’t go along with ignoring text and precedent for giggles. So, while a 15 week ban would pose new constitutional questions, it has a chance of getting upheld, and DeSantis does not want the political nightmare of banning abortion, only to have his hand-picked Court strike down the law.

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    The_Mat_Man

    I give out a giant sigh everything Sarah points to the adversarial US court system as a truth finding benchmark. We apparently get it wrong at least 1:25 times for DEATH PENALTY cases. I think this is a case where being a lawyer doed her a disservice.

    Yes, the committee would be better with more viewpoints, but I wouldn't necessarily want it to look like a US court case either. I can think of a few options without a clown like Jordan on the committee, and I assume others actually versed in formal philosophy could do far better.

    I guess I'm colored by a college course where the logician and the rhetorician had a "debate" where the rhetorician said nice sounding gibberish and won the vote.

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    Ben Connelly

    Jonah is right. Death to all spiders. Bring back DDT.

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    Witt Case

    The worst of the Post-Roe/Dobbs is yet to come. The wording of some right wing laws is causing harm already.

    https://thehill.com/policy/healthcare/3544588-10-year-old-girl-denied-abortion-in-ohio/

    I worry conservative sources will not report on these cases or seek any changes to their policies for some time.

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    ed74siasl

    Jonah touches a point I've been wanting to ask David and Sarah for clarifity on since the hearings began:
    Mentioning the telling nature of watching, e.g. Flynn or Eastman, taking the fifth (don't get me wrong, I 200% agree), isn't there some sense in which, at least from a legal standpoint, particularly a judge's or jurist's, we're supposed in principle to NOT take that pleading of the fifth as an admission of guilt?
    I mean it's kind of redundant, otherwise, isn't it?
    Like, "I take the fifth" can't be just taken as an admission of guilt in any question pertaining to whatever the fifth is taken on, right?

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      Greenknight

      In a court case, yes... the judge will usually give instructions that taking the 5th should not be seen as an admission of guilt.

      However in both civil trials and investigative hearings (where the person's freedom is not at stake) these instructions are reversed, and it CAN be considered an admission of guilt when a witness invokes the 5th.

      In the case of an investigative committee it is also grounds to send a request to the DOJ to begin a criminal investigation.

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    Anne W (Raw5254)

    Garden spiders are beautiful and they get REALLY BIG! I do my best to avoid killing spiders, and will carefully capture them in a large plastic container so I can put them outside. In the winter, they can just stay in the basement, and fortunately, I don’t see that many.

    I’ve looked everywhere for the wonderful YouTube video I found several years ago about spiders. That’s what changed my mind about spiders!

    I’m also looking forward to the podcast about our June book. I still haven’t finished it, and I’m now trying to hurry so I can get to the next one. Great pick!

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    MarqueG68

    So I'm going to chime in to echo JohnF's sentiments below, rather redundantly. I really do feel like Sarah's lawyerly counterpoints to the Jan6 committee are too much of a stretch. Much as I like Sarah's smarts and talents, the attempt to present the "other side" to an adversarial arrangement goes too far.

    For one, as Sarah herself says, the committee isn't meant to be a courtroom trial. The implicit adversarialism that comes with the American system isn't quite realized since everyone knows that the committee is a one-sided affair, a partisan exercise performed by the majority party.

    But the one-sidedness of the committee is due to the fact that the other side--the would-be criminal defense--has simply forfeited the game, declaring at the outset that the very investigation would be unfair. Yet a forfeiture still counts clearly as a loss to the side which forfeits!

    Why did the GOP side forfeit? Because they knew that the partisan make-up of the House would be unfavorable enough to give them a thin veil of an excuse to play the thumb-sucking crybabies in advance, for one. And for another--more significantly--because they knew that the very fact of the events leading up to Jan. 6 were indefensible!

    The GOP side knew that there was no reasonable defense for what Trump and his minions did in their antics. There was no precedence here that could serve as a defense. Which is why the Trump faithful are less interested in countering the committee's presentations than they are in telling themselves it's all unfair, the outcomes will be unfavorable, and thus the faithful must do all they can to block out those unhappy bits of reality from their perceptions for fear of infecting and corrupting their deep, deep devotion to their Prophet, as it were.

    Sarah's lawyerly defense, able and talented as Sarah is here, winds up sounding badly off key because she's got no actual substance to try to make a case from. The defense itself, which she waves aside by pointing out there's none required since it isn't an adversarial trial, comes across as a scholastic exercise in trying to make some sort of case in opposition. And the only case that can be made somewhat persuasively, fleetingly, is that the other side acted in ways that were indefensible. And thus the defense counsel must rely on bemoaning the process itself as an injustice in its very existence.

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  9. Ben P

    Regarding the Colorado Republican primary and Democrat aligned groups trying to boost Republicans, I agree that it's gross and hypocritical, but I'm not sure about Jonah's claim that it nearly worked. I did some historical google searches and couldn't find any stories confirming the claim that Heidi Ganahl (the normal one) was way ahead of Greg Lopez (the nutter) in the polls until these ads came out. I did find a "PredictIt" market in which she was well ahead in the betting the whole time and there were not sudden drops corresponding to when the ads came out. In the end, she won by 6 points. For context, she qualified for the runoff by coming in 2nd place with 32% to Lopez's 34%. The 3rd place finisher had 30%, and boasted an endorsement from Michael Flynn, an appearance at CPAC, and leaked audio of a rant in which she claimed our openly gay governor is actually straight and just decided to fake being gay in order to get liberals to support him. So those remaining votes weren't gimmies for Ganahl among Republicans. Seems weird there would be polls putting her way ahead early on and then almost tanking.

    But, supposing the story about the polling was true, I'd want to know who was polled. Because if it was registered Republicans, that's gonna be a really biased poll. Colorado has open primaries in which unaffiliated voters can choose to vote in either the Republican or Democratic primary, and no Democrat primaries were contested. Estimates are that around 30% of those who voted in the Republican primary were unaffiliated. This is almost certainly what won it for Ganahl, given that the other major contender in the first round (in which independents do not vote) was pretty far right.

    All this is to say that the McCaskill tactic seems like a really stupid move in a state where over 40% of registered voters are unaffiliated and can vote in the primary of their choice. The boosting of Lopez to MAGA listeners will have been largely if not completely offset by the boosting of Ganahl to independents. Those Democrat ad groups blew a bunch of money making the Republican nominee look good to moderates.

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    Mkapnick

    I agree Dems supporting Trumpers in the primary is bad. Very bad. That said, on several occasions, Sarah, Jonah et al have failed to mention that Dems crossed over in the Georgia primary to ensure Brad Raffensperger, would win his primary and Dems in Utah are not running a candidate to support conservative Evan McMullen. So while Dems deserve the criticism, at least Dems in Utah and Georgia deserve come credit.

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      Greenknight

      Karl Rove's superpac spent millions propping up Bernie Sanders back in the 2016 primaries (specifically to hurt Clinton), so this isn't some unique scheme that the Dems just came up with.

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