Bombshell Leaked Opinion On Abortion – On Foundations of Freedom: You’ve probably heard about the leaking of the majority opinion from Alito showing the High Court to overturn Roe V. Wade. What is so significant about the wording of the opinion? Is it as good as we could have hoped for? Is it really a done deal? What should we remember from the Court’s past decisions on abortion? Why was the opinion leaked? Will there be chaos in our cities? Tune in to hear the answers to these questions and much more as we discuss this week’s huge news!

Air Date: 05/05/2022

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live. We’re taking on the hot topics of the day from a biblical, historical and constitutional perspective. Hot topics of the day, man, I don’t know if there’s a topic that is more hot, hotter, more hot, what’s the right grammar there? 

Anyway, who cares? The point is we got a smoking hot topic today, it’s called Roe v. Wade. It’s abortion and there’s leaked draft opinion from Sam Alito is big news, of course. And so we’re going to be chatting about that a little bit.

But I want to encourage you to visit our website today, wallbuilderslive.com. That’s the place where you can get archives the program. So you know, last few weeks and months, you can get Good News Friday programs, Foundations of Freedom Thursday programs, all kinds of great stuff. 

Now what we’re doing today is we’re actually interrupting, this week was originally going to be Foundations of Freedom, the television program, all throughout the week. So earlier in the week, we had the Founders’ Bible, then we had Foundations of Law with Michelle Bachman. And then we were going to have, today and tomorrow, the Bible and civil justice. But we’re going to have to move that to next week.

So we’ll move that to Monday and Tuesday of next week. If you’ve been enjoying that throughout this week, sorry for the interruption, but this was too big of an issue and just too important for us to wait until next week to cover it.

Alright, David and Tim, huge, huge news this week, of course, this leaked majority opinion of Sam Alito writing for the Supreme Court to overturn, I mean, not just tinker with, not just kind of massage around a little bit, but I mean, literally not only overturn Roe and Casey, but lambaste them and lambaste the court for being unconstitutional in the way that it found on those decisions years ago. 

It’s Huge

So, very big news. A lot of our listeners got involved in listening to us and listening and being involved in the political arena for this issue of life. So it’s not a final decision. But this is big. This is as good as we could have expected, right?

Tim:

Yeah. It’s huge. As you mentioned, this is from Alito, speculation that is from February 10th is when he drafted this version that we have seen. And when this political article came out, that was kind of highlighting covering some of this, there were several indications they gave that Justice Alito was signifying that there were five votes on the side that he was writing or kind of drafting for.

But to your point, Rick, some of the things he said are things that so many of us constitutional kind of guys had been arguing for so long about the unconstitutional nature of Roe v. Wade of this kind of fabricated abortion law, that the idea that this is a federally protected God-given right. God doesn’t give you the right to murder an unborn child or to take innocent life, which is the definition of murder. God is always against murder.

We’ve gotten into detail before even on Foundation of Freedom Thursday, that God is not necessarily against shedding blood, if the blood is not innocent, in the sense of like, you can have self-defense and there can be military. And there’s actually such thing as just war theory. Those things actually exist. 

However, we’re talking about murdering, the shedding of innocent blood of an unborn child. And now there’s actually some states going so far as saying that they want to be able to murder the child after it is born. California, they’re talking about up to 30 days after the child has been born. They want to still be able to murder that child. And we might come back and talk about that a little bit more later in the program.

An Interesting Draft

Nonetheless, this is a such an interesting draft to go and see exactly some of the things we’ve been saying articulated by a Supreme Court justice, and presumably, right now a position that the majority, at least five, maybe six Justices are on the side. And there’s actually some speculation of maybe why Alito drafted it in such a way and so strong. 

There’s some thoughts about maybe who this was intended for in the nine Justices, as this is kind of a memo going to other Justices so they can read and see what different people positions are, which actually, we have several good friends who are attorneys up in DC.

And one of them has been explaining that what is very common is after the case is heard, the Supreme Court Justices will vote a couple of days after they heard the case and they will have their positions and then people begin writing based on their positions. But sometimes as they’re writing based on their position, they’ll write their positions, shared with the other Justices, other Justices at times can read that position, and they can change their perspective and change their vote before the final vote is revealed. And that’s happened many times.

One of the great examples of that is if you go back to the Obamacare decision with Chief Justice John Roberts, who have you read the decision from the minority position and the majority position where it was a 4-5 decision, the majority opinion was written by Chief Justice John Roberts. The reason was the minority position against Obamacare actually was a majority position and John Roberts, as Chief Justice was writing that majority position.

But before they released in the summer their official vote position of the Justice, John Roberts changed his position. And when he changed his position, he then said, well, Obamacare is fine, it can be passed as long as it’s a tax, then it’s constitutional. And so he wrote the majority position. 

An Interesting History

And at that time, they were for justice in the minority, and they could have rewritten the minority position. But they chose to leave his language in there really seems almost an insult to him that they wanted people to know that he had flopped on the issue.

Nonetheless, it’s a great point and example, that you can change your opinion, Justice can change their opinion over time after they’ve heard the case, but before they’ve announced the official results, positions of the Justices. And this is one of the reasons they would write things like this, that Justice Alito might write this, is to help either encourage certain Justice to maintain a position or maybe to sway Justices to say you might need to come back a different direction. Either way, this is very significant stuff.

David:

By the way, let me give you an example maybe even more cogent to what we’re talking about this. I’m going to take you back to 1992. 1992 was the Planned Parenthood versus Casey decision in which it was believed that the Supreme Court might actually overturn Roe v. Wade on the basis that Roe v Wade, because it’s not an enumerated power given to the federal government, at least belongs to the states. So get the federal government out of it. Give it back to the States. So that was the belief.

And when it came out, it turned out that it was a 5-4 decision and the court upheld Roe v. Wade. Now they kind of weakened it and undercut it, but they upheld it. Here’s the big deal. That morning, the majority opinion was going to be the minority opinion. And Justice Kennedy flipped that morning. So they were coming out prepared to announce that they had ended Roe v. Wade; that was over and done with.

Here’s the Big Deal

Rick:

Wow. So, David, you’re saying almost same issue potentially the same thing, if we’re not careful here.

David:

Well, see and that’s what I think it’s so significant. I’m going to go back to what we know about what’s leak. So I’m going to respond to this as if what we know about the leak is accurate. So if we think this is back to February, the 10th, we’re now three months down the road. And at this point, three months down the road, February 10th, it was a five person decision to overturn abortion. But at that point, we don’t know where Robert was.

Tim:

Well, yeah, and I would say what Politico released in their article was the indication was there at least 5. And so if a leader was writing this, it’s a pretty strong position. If there were at least 5 and maybe there were 5, the assumption is it would have been Alito and Thomas and Barrett and Kavanaugh and Gorsuch. So the assumption is that Roberts, although he might end up voting in favor of, and what we’re ultimately talking about is not just the overturning of Roe vs. Wade, we’re talking about it’s a Mississippi abortion law case, where Mississippi said that all abortions after 15 weeks are banned.

And so the question before the US Supreme Court is do they have the authority? Are they allowed as a state to say that there can be no abortions after 15 weeks? And if they have the authority, which really they should, in fact, every state should ban abortion all the time, anyway, but if this is, in fact, a state issue, not a constitutional issue, then that undercuts Roe vs. Wade, which is why the conversation is that this decision will overturn Roe v. Wade, but overturning Roe v. Wade.

Trigger Bills

And this is also very important in the conversation that a lot of people are leaving completely out as overturning Roe versus Wade does not end abortion. Abortion then would simply fall back to states, and we can get into details probably after the break in a second segment, we can talk a little about how states have done some proactive things in setting up “Trigger Bills”. 

And there’s actually 26 states that have set up “Trigger” laws to go into effect if Roe vs. Wade is struck down and there’s not federal protections for abortion and it comes back to the states, 26 states have passed laws already that would then go into effect that would limit access to or outright ban abortion in those states.

And so there are people right now saying, well, we overturn Roe vs. Wade, it eliminates abortion. No, it doesn’t eliminate abortion. It sends abortion back to the states. Recognizing that the Federal Constitution does not explicitly protect the right to abortion on a federal level, which is correct.

David:

So going back to the process of how this works, once the oral argument have heard, three days later, they vote and they say, alright, how do we see this? And the Justices vote at that point in time and then you know who’s in the majority, who’s in the minority, and they figure out who’s going to write the decision for each one.

So we’re going to assume, based on the political article, that there were a majority of justices that said Roe v. Wade needs to go away. This is not a federal issue. This belongs to the states. So at that point, they say who’s going to write this? And so apparently by the political article, it may be Alito. Now here’s the other part, is once somebody writes it, they then circulate it to all the other Justices and the other Justices put their input in.

Iron Sharpens Iron

And as like the Bible says in the book of Proverbs, that iron sharpens iron, you go, oh, I hadn’t thought about that. That’s a great point. Let’s add that. And so they go back and forth, literally for weeks at times reading the articles, reading the decision back and forth from each other. 

And you can get concurring opinions and dissenting opinions and all sorts of other opinions that can be in there that well, I agree that Roe v. Wade should an abortion, should not be a federal issue. But I don’t like the way that these other guys got there, so I’m going to tell you how I got there. And that’s a concurring opinion.

So based on what the political article is reporting, as this goes back and forth, it could easily change. And by the way, they could come to the point they say, you know, we really want Justice Roberts on this. And our belief from Justice Roberts, at least what we’ve been hearing inside is that he probably wants to stop abortion in federal level in two steps. So maybe they say, hey, we’ll stop at 5% or whatever now and let Roberts be on board with this. But they may not.

So there are so many variables that could happen outside of what we hear in that political article to think that that political article is accurate and own spot and then nothing’s changed in the last three months would be a bad assumption. Now it’s a good indication that maybe we’re going to see the court overturn it.

But to think that it’s going to be Alito that writes the decision or to think that it’s going to come out with the kind of language that they saw in that first draft, and so with what Politico is reporting, that’s all speculation. It might be stronger language. It might be weaker language. 

Justice Roberts

It might be they mitigate some of their language to get the other Justice on to try to pick up Justice Roberts. We just don’t know. And there may have been really strong language in that first draft, and it may come up being stronger than that. It may come out being weaker than that. But this is a leak at this point. And it is so early in the process from three months ago.

And I have believed for a long time that in some way we’re going to see Roe v. Wade, significantly undermined by this Mississippi decision. So whether the decision is going to say, hey, we the court think that it’s okay for Mississippi to do that, but we’re not going to totally strike down Roe v. Wade, or whether they come out and say, hey, we’re going to strike down Roe v. Wade, and if states want to ban abortion from the point of conception, that’s up to them. 

So whether they say 15 week or whether they back it up, and you know, there’s some that have speculated this can be a two-step process and some have thought it’s going to be all done this time. The political article is a fairly significant indication, but it’s not different from what we’ve been thinking all along the process.

Rick:

Alright, guys, got to take a real quick break. We’ll be right back. We’re talking about this bombshell leak in Politico about the overturning of Roe v. Wade. Stay with us, you’re listening to WallBuilders Live.

CONSTITUTION ALIVE!

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Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. And it’s actually a teaching done on the Constitution at Independence Hall in the very room where the constitution was framed. We take you both to Philadelphia, the cradle of liberty and Independence Hall and to the WallBuilders’ library, where David Barton brings the history to life to teach the original intent of our Founding Fathers.

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Rick:

We’re back here on WallBuilders Live. Thanks for staying with us. We’re just talking about this leaked document. It’s a draft opinion by Sam Alito, apparently, for the majority. But David and Tim, you gave two great examples in our first segment today of where the majority flipped to the minority and the minority to the majority right at the very end before a decision was announced. 

And we’re still two months from when they were planning to announce this actual decision. I got a question for you guys. Have we ever seen is it possible that they might turn around and announce this decision sooner because of the chaos that this is creating, and will create, I think in the streets at this point?

An Early Announcement?

Tim:

Yeah. One of the interesting things is there are several people who have already come out and by the way, I mean, as we’re saying this, when this gets released this morning, you know by the afternoon and depending on what station you’re listening to us on, or if it’s podcast where you listen to us, I mean, it’s possible that as you listen to this afternoon we’re releasing it this morning, but if you listen to us later in the day, it could have already happened.

So just kind of disclaimer, at the time of our doing this program together, at the time we are WallBuilders Live, that has not been released. But there is some very good speculation by friends like Kelly Shackelford at First Liberty, by Mike Lee, Senator in Utah. Very, very well-known people who are very involved in this who think it’s not farfetched that the US Supreme Court comes out and just to try to stop some of the chaos that perceivably could ensue that they do release this decision early.

Now, I’m not sure if they release it early, that it stops any chaos. I think it actually potentially causes more chaos. And they might actually be thinking through that strategy as well. You know, the fact that when this was first leaked, they instantly put up barriers around the US Supreme Court. Right now, it’s also not a crazy thought that they probably have some kind of special security detail with them, with some of these extreme crazy people that are out there that would see justify doing violence on them for some of these constitutional…

Rick:

Wait and I think what you’re saying is there’s going to be chaos, no matter what, people are going to go crazy at the end of this decision if it does, in fact, overturn Roe. I think maybe the idea is that if they’re creating the chaos in hopes of changing the Judges’ mind, that’s why they would release early, maybe those people wouldn’t go create chaos, but there’s still going to be people that will create chaos after this.

“Peaceful Protests”

David:

Now I’ll go back to when we first heard the Supreme Court had picked up that Mississippi decision. At that point in time I said, look, if the court comes out and overturns Roe v. Wade, you’re going to see the riots, you’re going to see the cities burning again. The Left is not going to let this go. You’re going to see the violence.

Tim:

I think you misspoke. We’re going to see peaceful protests.

David:

Oh, that’s I forgot, they were peaceful…

Rick:

It’ll be peaceful like it was when Kavanaugh was nominated. Right? I mean, they took over a couple of capitol buildings. And yeah…

Tim:

Yeah, like CNN reported, like, it’s kind of fiery, but it’s mostly peaceful. But yes, dad, I think you’re exactly right, there’s going to be a lot of chaos. And I think in a lot of these liberal cities, just like they did at some of these Black Lives Matter protests and riots, they’re going to tell some of their officers stand down, let them burn down, let them destroy…

David:

Yeah, I agree. Let this be news. Let this be going.

A Real War

Tim:

Let this little toddler have their tantrum, let them fall down the store and throw a fit and break things because you know what, they just need to express their emotions. I definitely think that’s what’s coming.

David:

Yeah. So I think what happens with this is when you look at the lake, and by the way, this is the first Supreme Court leak in like 100 years and first in a century. So this is a really unprecedented thing, which leads to why and who? Why would you do this? And I don’t think it was, I mean, the prolife side gains nothing by having the sleek.

And by the way, I think the prolife side really needs to put some bumper rails into this thing. Because don’t get super excited, this could change. And this is not necessarily a done deal. I mean, we talked about that earlier.

Tim:

Now, and I will say I don’t want to be a killjoy, I think you should get a little excited. But I think it may be in the midst of this because it does give you indication where people were at some point.

It doesn’t mean they’re going to stay in that place, I think, dad, is the point you’re making. But what I do think that should be for all of us. It should be a call to prayer to recognize that what people have been praying since 1973 and arguably long before that, what people have been praying for literally decades is on the verge of potentially happening.

But we also know that in this world there’s a real war happening on some spiritual levels. So there’s light and darkness, there’s good versus evil, those kinds of things are happening. And it’s very possible in the midst of Cancel culture, in the midst of this pressure that happens in some of this political polarized nation as it is right now. There definitely could be, I think, Rick and dad, as you’re maybe alluding to, there could be intentionality of one of the reasons this is released is trying to put pressure on some of these Justices.

Packing the Court

You know, maybe if it was, in fact, a liberal clerk that did release this, and right now for the justice, they each I think have like four clerks that work for them full time. And so at that point, you’re talking about several dozen individuals. And it could be somebody even lower down than that.

But presumably, it’s probably one of those that was relatively close. And it’s possible that somebody gave you the head nod and you’re kind of handed down to the rank, so lower level person releases this.

Anyway, that being said, the assumption is it’s probably one of the liberal clerks that released this. And if they’re releasing, it very well could be because they do want to put pressure on some of these Justices to maybe make a Kavanaugh or a Barret change their position. I don’t think that’s probably going to going to work. But that could be part of the strategy.

One of the things that we’ve heard now from several of our very good friends who are attorneys who have been very involved in some workings of the Supreme Court is probably the best speculation right now is there’s pressure trying to be stirred up and trying to awaken the chaos mob. Because the Democrats recognize with the Justice right now that are on the US Supreme Court, if we have justice that actually believe in the Constitution and want to uphold that, it’s going to destroy a lot of the Democrats and tensions and positions that they’ve been taking and trying to set up for decades.

And so it will fall back to the argument Democrats have had now for at least the last couple of years have been very vocal about as expanding the court. There actually is legislation right now and US Congress suggesting that we have four more Justices on the US Supreme Court. And that would be strategic if that passes in the House and Senate, President Biden signs that in law, because then President Biden gets to assign for more Justices, which you know then would be very liberal. 

And so that would counterbalance against the six Justices that were appointed by conservatives, they’re not totally conservative like John Roberts, but at least they’re more conservative leaning. So it does seem that maybe this pressure comes out to try to put pressure on Congress, even to work a little harder maybe to expand the court. So, a lot of speculation, a lot of ideas of where this pressure could be intending to go.

It Will Fail

David:

Yeah. And I hear that a lot. And at this point, I think politically, exponentially. I would discount that more. Because you did have the two Democrats, senators who said we’re not going to expand the court, and that’s why this died several months ago. They push it through the House.

They wanted to run it through the court, Biden was ready to sign it. They could not get it done with Democrats in the Senate as it currently sits right now.

And then if you’re trying to expand the court based on a prolife decision and Manchin is already one of the guys who said he’s not going to expand the court. He’s the only prolife Democrat in the Senate. I mean, he’s not likely to say, oh, yeah, you guys are right, I want abortion so I’ll help you expand the court. 

So I think it is just almost politically impossible for them and the current situation, current numbers to get done what they want. I know they want to push that. And Tim, as you said, man, they see all of their agenda going down.

And by the way, and what we’re hearing is what Politico reported as the release of that initial writing, oh, my gosh, I read that and I thought Alito, you did such a good job of citing the Constitution and hitting it and saying, we uphold the Constitution, we don’t uphold a political position. Here’s what the Constitution says we can do and we’re not doing more than that. I thought, man…

Rick:

Oh, he even talks about enumerated powers, it’s beautiful, it’s beautiful.

A Call to Prayer

David:

Exactly. Things we haven’t heard in decades, but are clearly in the Constitution.

Tim:

Well, and this is where, dad, I would even go back and say this is maybe again why I think it’s okay to celebrate a little bit. Now, this is not determined. But the fact that you have Justices, and now it looks like, because one of the things Politico identified in the report was when Alito first drafted this, he indicated that there were five Justices that were on the side of this argument.

And so if that’s where we now are, I mean, there is cause to celebrate; again, this case has yet to be determined. And there’s a reason, I mean, everybody out there, all you Christians, we need to be praying for this big time. And this is not the only significant decision at the Supreme Court, although this one certainly could have some of the most significant far reaching impact. But there’s things dealing with religious liberty and the expanse of religious liberty or school choice and actually Christian schools being able to participate in some of the same programs that get funding as public schools do.

And there’s things dealing with the Second Amendment. There’s a lot of significant cases that we expect decisions on the summer, which really means that Good News Friday this summer is going to be a lot of fun, as we get to cover some of these cases.

With this all kind of being said big picture perspective too, guys, as we look at this, it’s very interesting to note that we are at a place and I think I’ve heard Kelly Shackelford, our friend from First Liberty, who is the first one that I think I heard say this, it’s interesting looking at what happened at the Supreme Court with this leak and dad, you mentioned this hadn’t happened nearly 100 years. I think Mike Lee said it’s been since before Thomas Edison invented the light bulb we had a leak right from the US Supreme Court.

The Leaker

David:

That’s right. And by the way, whoever leaked, this is permanently disbarred. Their law career is over. Everything they’ve done, all the credits they’ve earned, all the accolades it has done. When they find out who leaked this, this will be a permanent disbarment.

Tim:

Now, that doesn’t mean their public career is over because probably CNN would offer them a job on the spot.

David:

They will be a commentator on the news somewhere…

Tim:

You know, I mean, probably there’s some leftist organizations…

David:

I take that back. They won’t be a great commentator, but they will have a lot of offers to be a commentator on liberal channels.

Tim:

They might be a highly paid commentator. They’ll probably have some book deals and whatnot. And this is one of things Kelly Shackelford pointed out. For the Justices, he said for them that they share opinions freely between the Justices.

And so for then a Justice to take what is a private confidential document and to release that document to a news outlet that’s making this public, it destroys a level of trust and credibility. So this could have some very damaging impact. Unless possible conclusion is if when this unfolds, dad as you mentioned, find this person and not only just bar them.

Bombshell Leaked Opinion On Abortion – On Foundations of Freedom

Bill Barr was on an interview just on Tuesday with Megyn Kelly and one of things he pointed out was that they actually can be tried for the obstruction of justice, because this is dealing with a legal case coming out. So there’s actually some federal crimes, the nature of what happens that there actually could be criminal prosecution in the midst of what happens. If they throw the book at this person, it could stop this from happening in the future and maybe restore trust on some level. Either way, guys, this is a huge deal going on and a really big reason we should be praying.

Rick:

Yeah, Tim, tons of prayer; folks, this is a very important time to be praying for this praying for leadership in Washington, DC, praying for the protection of the Supreme Court Justices, praying that there’ll be some good decisions made about going ahead and getting this opinion finished and out there so that hopefully there is less writing. We fully expect there to be a horrible response from the Left on this. But we can mitigate that, I think if they’ll go ahead and get the decision out.

But whatever they’re going to do, this is huge. It’s going to have a massive impact on our country, because it’s not only the life issue, it’s the constitutional jurisdictions issue. And the fact that we have at least five of the nine Justices that are willing to start kicking issues back to the states where they should have been in the first place is just massive. I mean, this is very, very encouraging. Hope that you’re encouraged as well.

If you need some more encouragement, then be sure to visit our website today at wallbuilderslive.com. Listen to those Good News Friday programs that we have in the archive section. And also join us tomorrow for some good news. We sure appreciate you joining us today. You’ve been listening to WallBuilders Live.