In this episode Trent engages Catholic scholar Steven Millies on his controversial defense of Roe v Wade.
Welcome to the Counsel of Trent podcast, a production of Catholic Answers.
Trent Horn:
Hey everyone. Welcome to the Counsel of Trent podcast. I’m your host, Catholic Answer’s apologist and speaker Trent Horn and today my guest is Dr. Steven Millies. He is professor of public theology and he’s the director of the Bernardin Center. He got his PhD from the Catholic University of America and he’s the author of the recent book, Good Intentions: A History of Catholic Voters’ Road from Roe to Trump. Dr. Millies, welcome to the Counsel of Trent podcast.
Steven Millies:
Thanks very much. I’m glad to be here.
Trent Horn:
Very good. The impetus for this episode was that you had posted on social media what you had called a Catholic case for Roe versus Wade. And you discuss some elements of Roe versus Wade and I read your book and I thought there were some solid elements in your book, Good Intentions. I enjoyed the first half dealing with the history of Catholics and political life, starting from the founding of America, going all the way up through 19th, 20th century. The second half though, I had some concerns about, namely your perspective on Roe versus Wade. You kind of that a little bit on social media, I’m sure you can understand how many people would see that as being controversial. I wanted to give you an opportunity just to expound upon that a little more, and then maybe we could just have a bit of a back and forth on your perspective.
Steven Millies:
Yeah. Thanks. A couple of things, first I’d say it’s important to remember that as you say, I got two degrees at Catholic U. in Washington, DC, neither is in theology, both are in politics and my appointment at Catholic Theological Union is as professor of public theology, as you said, but as you may know, that is a very recently identified field of study. Recently identified within my lifetime in 1974, even though it’s a thing that’s been done by Christians and by other believers too.
Trent Horn:
What do you mean by public theology being recent?
Steven Millies:
Well, the phrase itself only came into use in 1974. Far as I know, I’m the only Roman Catholic in the United States appointed as a public theologian. Although I would argue there are many public theologians and certainly not all of them are academics working in higher education. But so public theology itself invites us to try to imagine how to present what we believe in a public way in the public square to a world outside the communion of the church in a way that’s meant to make what we believe intelligible. And so all of that is sort of preparatory to saying that I very consciously live in an interdisciplinary space where my mandate and this builds on work that I’ve done across now several decades, my mandate is to try to think in terms of how what we believe looks to the world outside the communion of the church and how what we believe can be made persuasive to the world outside the church. Because that ultimately is the goal. That ultimately is the goal. Go ahead.
Trent Horn:
No, I was just going to say, I firmly agree with you. That’s why the title of my second book is called Persuasive Pro-Life: How to Address Our Culture’s Toughest Issue. I’m firmly on board with you there but I want to get your particular opinion though on Roe versus Wade. Here’s a quote from your book. You write, talking about the development of law that allows for legal abortion in the United States you wrote, “Perhaps these developments while not entirely good are not entirely evil either. Although the taking of any born or unborn life always is evil, perhaps even the Roe decision can be a sign of how the political system and the legal system are taking the rights of women in particular and persons more generally ever more seriously amid what in general are tremendously complex political and legal circumstances in which the moral stakes cannot be higher.”
Trent Horn:
I vigorously disagree with how you’ve put forward your position there, that I can’t see any good in the Roe versus Wade decision aside from something that might be incredibly trivial but I’m happy to allow you to expand a little bit more about that thought and give us more of your take on Roe versus Wade.
Steven Millies:
As a political scientist working in the way that I’m working, one of the things that’s become noticeable to me in conversations like this one, although I’m not pointing the finger at you but I would say it’s noticeable in conversations that I have like this one with people I disagree with and with people I agree with, one of the things that’s become notable to me and very motivating for me is how unformed people’s consciousness is of the political system and the legal system and how they work. And that’s a perspective that I have. I taught American government for 15 years. I taught constitutional law. I taught to Congress, I taught lots of things.
Steven Millies:
I would say that when we evaluate something like Roe as Roman Catholics, obviously there’s a moral component and that’s been very well explored. We’re very aware of it but there’s also a legal component and a political component. And the important thing here is that those are things we share with non-Catholic people here in the United States to whom this national state belongs equally with us. And the sharing of those things requires us to notice that constitutional law and the development of constitutional law here in the United States, our political tradition, is something that has its own internal logic, its own authority and having those things, we need to understand them and we need to think about something like Roe legally and politically in parallel with how we think about it morally. In other words, no one of those perspectives is adequate. We need at least all three, if we are going to make a publicly persuasive statement about Roe.
Steven Millies:
That quote in the book particularly is something that I still stand by. It reflects a growing awareness that liberty protections under the substantive due process laws of the 14th Amendment and particularly in the light of the 9th Amendment’s promise that there are freedoms not named in the Constitution that are still retained by the people of the United States. In other words, there are more rights to be found. It’s perfectly legitimate, according to the Bill of Rights, to identify a new right enjoyed by the people of the United States. What Roe and what Casey subsequently talk about are a state interest in the bodily autonomy of persons in the United States. A thing that by the way has become very current in a strange way during the vaccination debate as well. And so to the degree that Roe and subsequently Casey as well, identify new realms of freedom that equalize in a social and economic and legal perspective the status of women with men, I think those are things we can be quite cheerful about actually, and we should be very public in being cheerful about them.
Trent Horn:
We should be cheerful about Roe and Casey acknowledging the freedom to do what?
Steven Millies:
I didn’t say, the freedom to do what.
Trent Horn:
Freedom.
Steven Millies:
I said that the extension of human liberty itself is a good. Now, if you want to get into a conversation about freedom to do what, that’s where we embark on the moral argument and that’s where making a public case, as opposed to a case ad intra, that’s where I’m saying, making a public case demands a kind of a code switch. That we need to be able, and we need, if we want to persuade people, we must say things differently. I know where the question you’re asking about freedom to what, you’re about to embark on a kind of a teleological exploration of what I’m talking about here. But what I’m saying is that if we’re talking to a non-Catholic person who is subject to the laws of the United States and a member of our political community, I don’t think that’s going to be fruitful.
Trent Horn:
Okay. Well, here’s the concern I have with your argument seems to be, well from a legal and political perspective, Roe versus Wade and Planned Parenthood versus Casey, preventing states from making it illegal to kill human beings before they are born, there is good there because at the very least they are expanding liberty. It sounds like to me that you would be forced to say that almost every flawed Supreme Court case in the past is not entirely evil because it grants liberty to certain people. I guess my question to you would be, would you say Dred Scott versus Sandford is not entirely evil, Korematsu versus United States? Dred Scott being the case that up held slavery, Korematsu versus the United States allowed for the internment of Japanese citizens, simply because of their race, even though they didn’t commit a crime. It sounds like you’re saying, “Well, they were taking seriously national security and property right ownership so we’re increasing liberty for some people, even if that’s the expense of others so these things aren’t entirely evil.” It sounds like your position would lead to that.
Steven Millies:
Yeah. Casey addresses that but we can come back to that. There are two problems with what you’re saying. One problem is that neither Roe nor Casey says that it’s all right to kill a human being before that human being is born. And this particularity now that I’m talking about is what’s important in public conversations with people outside the church, whom we want to hear us, whom we don’t want to put off and send away because we don’t seem like we are taking their point of view very seriously. What Roe and Casey are about are state power over bodily autonomy and here’s the other problem is when we talk about Roe and Casey and I wish I had put this in the book, actually, I wish this was part of that quotation that you read out earlier, why don’t we talk about Roe and Casey in precisely the way you’re talking about it, which morally I agree with. That’s the very important thing to keep saying here. Well, when we talk about Roe and Casey, I think we very often forget to mention the win. We forget to mention.
Trent Horn:
The positive elements?
Steven Millies:
Something we haven’t talked about yet. There’s an important win for us in Roe and Casey because when we see Roe and Casey. And by the way, none of this is particularly on the point of what I was tweeting about. We can come to that later too, because that’s really a point about constitutional stability. But when we read Roe and Casey, what we find them talking about is a growing state interest in the potential of human life. That what Roe and Casey say is not, “It’s all right to kill a human being that hasn’t been born.” What they say is that across the nine months of a pregnancy, the state interest grows because there is a human life at stake and the personal autonomy of the pregnant woman declines because there’s a state interest in the potential of human life.
Steven Millies:
In other words, a logical inference from the Roe and Casey decisions is that we recognize already in constitutional law that there is a human person at stake in every pregnancy and what the Roe and Casey decisions are doing in the way that law does this, that constitutional thinking does this, when we are enmeshed in problems concerning conflicting liberty claims, what they do is they balance and strike the balance as the pregnancy goes along in favor of the fetus, in favor of the unborn person. I would argue that’s actually a fairly substantial win, even though it’s not everything that we would want, who believe that life begins at conception.
Trent Horn:
What I guess is what I can’t wrap my head around is that under Roe and Casey, prior to viability, which is when 95, 99% of abortions take place, the state cannot outlaw the procedure or make it illegal to kill children before viability. It just can’t do that at all. I don’t see how that can be called a win when it’s perfectly legal to dismember human beings prior to viability, for any reason whatsoever, the state has no interest prior to viability in making, maybe they can do waiting periods or things like that, but you can’t make it illegal to dismember these children. Then after viability, yeah, you can outlaw elective but the Doe versus Bolton case says, “You have to leave an exception for health,” which is physical, emotional, psychological, familial or age related.
Trent Horn:
It seems to me that the United States has one of the most permissive abortion laws in the world, far more than what we see in Western Europe, for example, in Scandinavia. How is that a win? That basically in the United States, you can get an abortion at any stage in pregnancy, as long as you just you can. How is that a win?
Steven Millies:
Well, it’s a win because it’s a constitutional acknowledgement that there’s a liberty at stake for a human person in that pregnancy, even if it’s not 100% throughout the nine months because there is another liberty interest at stake within the frame of the law. Look, a couple of additional points here. First, Casey in 1992, vitiated a firm viability standard. It permitted viability to actually slide backwards in the pregnancy, actually scaling up the protection for the unborn person according to medical developments. Casey says rather specifically, “That a firm viability standard at a fixed point on a calendar is not feasible. It’s not practical.” But the second thing, I think that’s really important here and it’s something else that was in that thread that got us talking here. In 2005, there was a dialogue that took place between Jurgen Habermas and Cardinal Joseph Ratzinger, very shortly before he was elected Pope.
Steven Millies:
If you go and look that dialogue up, it’s Dialectics of Secularization, it’s published by Ignatius Press. If you go and look it up, you’ll find Cardinal Ratzinger there saying something that I think is quite wise and quite prudent and it speaks to your question. And what he and Habermas are talking about is essentially the role in the future of the religious perspective at European politics, at European social life. This is an argument Europeans are having but it bears on us too, for obvious reasons. And what Ratzinger says there is he makes a claim that’s very much like the claim that John Courtney Murray made in the 1960s about public morality and private morality. What Ratzinger says there is that, “When we Catholics want to make claims about public morality,” that is to say, make moral claims that should be enforced by the state, what Cardinal Ratzinger says there is that, “our ability to do that is enhanced when we are making claims in agreement with other believers.”
Steven Millies:
In other words, that in a very important sense, all believers are in it together to try to make moral claims on the public spaces. And going back to what I was saying before about the idea that public spaces are things that are shared among all of us, this is a very sensible point. In that thread of tweets that we talked about, I created a link to a Pew resource that identifies the perspectives of other Christian denominations about the legality of abortion prior to viability. There are not many of us Christians who are are opposed to abortion prior to viability being legal in quite the way that we Roman Catholics are. And there’s a greater diversity about this among other religious traditions as well.
Steven Millies:
In other are words I want to say that again, from our Catholic point of view, to say that a human person is a human person from conception throughout all nine months and all the way to natural death is a very uncomplicated and uncontroversial thing. But when we step out beyond the communion of the Roman Catholic church, it becomes a very complicated and controversial thing for us to claim in public. And yet we can point to how Roe and Casey affirm the humanity of the potential life, the human person growing through development in a pregnancy.
Trent Horn:
Okay, how does Roe affirm the unborn child is a human being or a person? What practically speaking? Because to me, how could you say, oh yeah, these cases affirm and let’s just talk pre viability when 99% of abortions take place, how could Roe and Casey affirm these are human beings and these are persons when it prohibits the state from making it illegal to kill these persons and doesn’t even recognize the fundamental right human beings have? It just seems like double speak to say, “Oh, it recognizes there is a liberty interest in this human being prior to viability but it has no liberty whatsoever.” I think that’s almost even worse.
Steven Millies:
Well, look you’re committing an error, I think.
Trent Horn:
What error?
Steven Millies:
Which is you’re trying to confine this conversation about Roe and Casey to pre-viability and that’s not the case I’m making. It’s akin to saying, anytime that there’s a legal dispute between parties, when the liberties of both parties are in conflict, but somebody’s going to have to win and somebody’s going to have to lose. It’s a very common thing that law has to deal with. It’s akin to saying that when one wins and one loses, it’s akin to saying that the personhood of one of those parties has been denied because they haven’t enjoyed their full measure of liberty. And what I’m saying is that in social circumstances, we come across these problems all the time. And while as I wrote in Good Intentions, the stakes could not be higher here. I agree about that.
Steven Millies:
It is nevertheless the case that these things are adjudicated in public spaces among and for people who are not convinced about the things you and I are convinced about. What I’m saying is that when we make a public argument about this, it’s important for us to point out, it’s important for pro-life Catholics to point out that Roe and Casey affirm our position. There is a growing, developing human life there and if we want to make a persuasive case out in the world for changing the law around abortion, then getting people to understand it that way, I think is a good beginning.
Trent Horn:
Well, let’s go back then to the question I had about Dred Scott or Korematsu or these other cases, because I really think your argument applies. Just take Dred Scott. I could say, “Well, the court’s not saying slavery is a good thing or Plessy versus Ferguson, it’s not saying racial segregation’s a good thing. It’s just recognizing there’s competing liberty interests between Blacks who want to dine in its certain rail car and the property owner of that rail car or that restaurant and so there’s a win here in understanding that we’re going to balance rights here.” Because I guess I’ll put it to you bluntly, would you say that Dred Scott versus Sandford or Plessy versus Ferguson, those are evil, entirely evil or do you think there were some good elements in those cases?
Steven Millies:
Let me not walk into that trap. Let me instead read to you from Casey.
Trent Horn:
Well no, it’s just a question. What’s wrong with, I think those are both they’re evil. They deny Blacks rights that they ought to have. Those are evil cases. There’s nothing good about them.
Steven Millies:
Sure. I agree. But that’s also off point. Here’s what Casey says, “A comparison between Roe and two decisional lines of comparable significance, the line identified with Lochner versus New York,” which you may or may not know affirmed that there is a right to contract my employment against my own.
Trent Horn:
It’s about overtime law.
Steven Millies:
Well, not only about overtime law, it’s also about health and safety regulations that came out of bakeries where people were inhaling large amounts of aerosolized flour and damaging their lungs. Lochner and the line that began with Plessy versus Ferguson. Not exactly Dred Scott but still comparable. Those lines were overruled on the basis of facts or an understanding of facts changed from those which furnished the claimed justifications for the earlier constitutional resolutions. The overruling decisions were comprehensible to the nation and defensible as the court’s responses to changed circumstances. In other words, it’s not a moral analysis. And I again continue to say, this is the important thing we’re talking about. Was Dred evil? Was Lochner evil? Was Plessy evil? Yes, but evil is not a constitutional category.
Steven Millies:
This was about what was comprehensible to the nation. It was about changed social circumstances because we have to remember, even though constitutional law affirms basic rights and liberties, it’s also a political document meant to govern a people and the law can be no better than the people is or I should say, not much better. The law has got to be fitted to who the people are or else the people will ignore the law. The law itself loses credibility. And here I think we come to the core issue I hoped we would talk about today. In other words, I’m saying that the Dred or the Plessy or the Lochner comparison to Roe is apples and oranges because what we have to talk about has changed circumstances. And we’ve had nigh on 50 years now since Roe versus Wade, where in the realm of public opinion and what’s comprehensible to the nation, despite all of our considerable effort, literally nothing has changed.
Trent Horn:
Okay. You’re saying then that Plessy is different, which is the case that allowed for racial segregation overturned by Brown versus Board of Education.
Steven Millies:
I’m telling you what the court said.
Trent Horn:
Right. But I just think that Roe is a terrible decision and its reasoning is wrong. And so I just don’t put much stock into what it says in trying to pull this alleged right out of thin air, even many scholars who defend legal abortion, find Roe versus Wade to be indefensible. That it just stands on a foundation may it out of air essentially. What I’m trying to get, let me ask you a more pointed question. Do you think Roe versus Wade should be overturned?
Steven Millies:
In the present circumstance, in the light of the Dobbs case that was argued a month or two months ago, whenever it was, should it be overturned in this turn?
Trent Horn:
Yes, right now. Yeah.
Steven Millies:
I think it would be unhealthy.
Trent Horn:
What would be bad about overturning Roe versus Wade?
Steven Millies:
We are in a precarious moment for our system of government, for the confidence that citizens have in the authority of law and if we telescope…
Trent Horn:
Why do you say that?
Steven Millies:
And if we telescope out around the globe, we can see that confidence in the resolution of differences by political means has declined. What I’m concerned about in the overturning of Roe is that the circumstances have not changed, public opinion on abortion hasn’t moved in 50 years, the decision would be incomprehensible to the nation to borrow the language from Casey. But the larger point really is that we would all know that every citizen everywhere would know that it was because of certain partisan things that had been done such as holding a Supreme Court nomination open for more than a year, citizens would know because it was all done out in the open. That overturning Roe was made possible only by a kind of application of force and force undermines authority.
Trent Horn:
What do you mean by force?
Steven Millies:
I’ll come to that in a second. And what our political system, which we need to be productive of justice and peace does not need right now is that sort of public blow to its legitimacy and public confidence. I’m very concerned about the kind of world that children would be born into as a result of overturning Roe this way. What I mean by force is…
Trent Horn:
Go ahead.
Steven Millies:
What I mean by force is technical. It’s the exertion of power and coercion. That is to say, it is contrary to what’s meant by authority, which is that which commands obedience simply by itself, legitimacy. These are the stakes in our politics. The stakes in our politics and the stakes in politics always are between authority and force. Will we obey because we know we should obey? Or will we obey because power and coercion have been exercised? And the whole drift of our American politics right now particularly, but global politics as well. I think Hungary offers us an example and there are other examples we could name around the world too. The kind of politics that we have enjoyed in our constitutional Republic for the last 200 years have been built on an expectation that authority will work. Authority is in trouble now. And the sorts of moves that have been made in public to get us to a Supreme Court that could do this, I think put us in danger of severely undermining a form of government that is in the interests of the common good.
Trent Horn:
You’re saying if Roe versus Wade were overturned, it would be done because of force or power and coercion. I don’t know what you’re talking about if you’re saying a Supreme Court of legally appointed justices through a legal and transparent process, it sounds like you’re saying people are mad that they didn’t get the justices they want so then they won’t think it’s legitimate. Isn’t that really just their problem if the justices make a decision they’ve been legally appointed to their positions?
Steven Millies:
Well, they have been legally appointed. I’ll be the first to affirm that and the first to insist that’s true. But as I said earlier, we have to think morally and we have to think legally and we have to think politically and no one of those perspectives is enough and not one of them is dispensable. Politically, this political community knows that Supreme Court nomination was held open for a year so that a different president would make it and then the same principle that was cited in order to hold that nomination open for a year was ignored when another nomination became possible in 2020. Those sorts of moves, those kinds of actions are raw exercises of power and coercion in public that everyone can see. Absolutely it was legal. Absolutely it was legitimate. Absolutely it’s corrosive in our politics.
Trent Horn:
Okay. Let’s talk about power and coercion. You seem to be saying, well, we don’t want to overturn Roe and try to enact these good ends because you are concerned about a world where we’re using power and coercion to protect people. Do you think that vaccine mandates and mask mandates are?
Steven Millies:
I don’t think that’s a good…
Trent Horn:
Can I finish my question? Can I finish my question?
Steven Millies:
Well, I would rather you didn’t characterize it in quite such a partisan way.
Trent Horn:
No, it’s a parallel question that here, would you say the state is using power and coercion to protect human life by legally mandating people be vaccinated or wear masks, things like that, they’re using power and coercion to do that?
Steven Millies:
Sure.
Trent Horn:
Okay. In some cases it’s okay to use power and coercion, and would you agree a large, large number of people are incredibly emotionally repelled by these kinds of mandates?
Steven Millies:
Sure.
Trent Horn:
Okay. In that case, you don’t see anything problematic with the state using power and coercion to mandate vaccines, mandate masks, even though millions of people are highly emotionally disturbed by the limitation of bodily autonomy? Why can’t we just apply that to abortion as well? And just say, “Well, the state can use power and coercion to protect innocent life even if it upsets many people.”
Steven Millies:
Well look, if you want to put it that way, I’d make two observations. One is fair to you and the second is unfair to you. The first is that the authorities that the state has in order to enforce mask mandates and vaccination, predate this crisis. There’s no question of they’re having been produced by a decaying and polarized politics such as we have today. The authorities that the state has in order to do the things that you’re talking about, predate all of this. The question of their legitimacy is not really comparable to what we’re discussing in terms of the overturning of Roe. But look, you just said it. Here’s where I get unfair. You just said it.
Trent Horn:
Before you get unfair, when has the executive branch had the authority to mandate a medical procedure upon people?
Steven Millies:
Calling a vaccination a medical procedure I think probably overstates it a little bit. There are authorities going back to the Spanish flu pandemic that authorize the federal government, I’m struggling because I’m trying to remember the name of the decision, which I believe was in 1919. These authorities long predate and calling a vaccination injection a medical procedure, I think overstates it a bit.
Trent Horn:
Are vaccines considered medicine regulated by the FDA?
Steven Millies:
I don’t know that I’d characterize them as medicine, but they are regulated by the FDA.
Trent Horn:
Okay. Now you wanted to be unfair me go right ahead.
Steven Millies:
Well, it was just what you said a moment ago that if we wanted to use power and coercion to violate bodily autonomy that would be correct. What’s striking to me is the way in which the argument again, so the argument you’re sort of citing there, the argument against vaccination is precisely the pro-choice argument. It’s precisely the pro-choice argument of bodily autonomy. If I were to accept, in other words, the premise of what you said earlier, then we both have to be pro-choice.
Trent Horn:
Well, my response to that would be twofold. One, I’m saying that people who are arguing for the legitimacy of infringing upon bodily autonomy in favor of mandates that they believe will save lives, then they logically are going to have to also support mandates if you will, that will infringe on bodily autonomy in order to protect the unborn. It’s for those individuals, I think have a double standard and a problem. For me, my position would not be a double standard because I see a difference between government using power and coercion to require me to do something that might marginally protect my health or negligibly protect the health of others versus government preventing me from directly killing another person. There I would say mandates for vaccines or masks are entirely different in the case of abortion when you’re dealing with an act that is designed to end the life of a human being.
Steven Millies:
Except let me flip it around on you and let’s take it out to a moral level. I don’t think the protection of the community is negligible when we vaccinate because there will always be some number of persons who are unable for legitimate medical reasons to receive the vaccination. The rest of us get vaccinated to get the disease under control to protect those people. Vaccination is service to the common good, just as the protection of the unborn is. That’s the consistency of my political position here. But look…
Trent Horn:
Well, what I would see as different…
Steven Millies:
But look, I want to press you this way. But look, they’re not in this way, that the pandemic is a pressing and present crisis where thousands of people are dying every day and which has widespread global consequences. Abortion is it’s been underway for 50 years. And as I say, not much has changed. I would like to see it change as much as you do but here’s where I’m want to press you. Wouldn’t it actually be better to change it by changing people’s minds, by making publicly effective arguments that change the circumstances that then the court can point to, to say, “So now let’s change the law.” In other words, why aren’t we converting people?
Trent Horn:
Right. Let me offer two points on that. One, I would say that they’re both parallel there because abortion is also a case of thousands of people dying every day, like the pandemic, it’s just been going on for 50 years. I think it’s quite pressing in that regard.
Steven Millies:
But unchanging. Nothing we’ve done has…
Trent Horn:
Abortion’s like a pandemic of the unborn that’s gone on for 50 years basically and the state hasn’t enacted things that would place legal obstacles to that. The point I would make on your question before. I know where I wanted to go.
Steven Millies:
Wouldn’t it be better to persuade than to coerce?
Trent Horn:
I agree. But to me it’s not an either or. Some people put this in an either or, to me it’s a both and. In order to change the law, you have to change people’s minds but the law is a teacher. The law also instructs people and it casually and indirectly lets them know what is and isn’t okay. It’s always had that purpose.
Steven Millies:
I disagree.
Trent Horn:
Well I would say there is that when it comes to abortion, let’s say we change people’s minds. Okay, yeah, everyone in the state of South Dakota or Mississippi, the majority of them, in fact, you’ll find many places where the majority of people would like to protect the unborn up until and this is what’s going with the Dobbs case, in these states, because we believe in federalism, we’re not a country of 300 million people, we are 50 states united in one country. You have community.
Steven Millies:
Well, that’s not what federalism means.
Trent Horn:
Well, okay. Well my point.
Steven Millies:
Federalism means both.
Trent Horn:
Yes. You get the point that I’m saying here.
Steven Millies:
But the distinction’s important.
Trent Horn:
Yes, I understand that. But like what I’m saying, we see that in elections, things like that. We have communities in the United States that very much want to protect the unborn but Roe versus Wade makes it impossible. If we’re Roe were overturned, then the communities of the United States, we could debate, we could dialogue and different places can pass different laws based on what those communities feel would be helpful. And interesting, a parallel with the pandemic, we have that in the United States now where we have nine states that have mask mandates and 41 that don’t. We have different communities having different views about what kinds of restrictions on liberty are allowed or not allowed. Wouldn’t that be better than overturning Roe? We can have that changing of minds but otherwise if you change everybody’s minds, if Roe keeps the law static, what good is it?
Steven Millies:
But this is the problem is we’re playing constitutional Dungeons and Dragons. We’re imagining something that’s contrary to the situation and saying, “Wouldn’t it be great if?” The reality is that the case law of the United States Supreme Court develops in a particular way. And if we’re going to make publicly persuasive cases, we have to do it this way. This is, I think what we’re talking about. The case law of the United States Supreme Court develops in a particular way and right now what we have is a federal Constitution for all 50 states about basic liberties that have been defined according to the case law of the United States Supreme Court in a particular way. And so saying, “Wouldn’t it be great to have these little laboratories of democracy this way that we think about states as engaging in this kind of dialogue that you do?” Well, it might well be but we have a constitutional obstacle because we have a federal system because we have a national Constitution to which all 50 states, at least under the 14th Amendments of the Constitution, all 50 states are subject.
Trent Horn:
But even the example that I gave, we’re doing that fine now with states that we don’t have a national mask mandate, California can have one.
Steven Millies:
But the case law is different. The case law is different. The moral comparison on that might be apt, the legal comparison is not.
Trent Horn:
Well, that’s the whole point then that maybe the law is wrong in how we ought to treat abortion and then we could change it to mirror these other things.
Steven Millies:
Maybe, maybe, maybe, but if you want to make a persuasive political case out there, you have to deal with the law as it is. You have to deal with, we’ve talked about these things, you have to deal with where this community of people that includes 70 million Catholics but 300 million non-Catholics, who see things differently.
Trent Horn:
But the court has done this before with people, even with sizeable groups of people who disagree. You have Obergefell versus Hodges where the court prevented states from defining marriage as the union of a man and a woman and you have many, many, many people who disagree with that. And then it’s decided.
Steven Millies:
Hardly a majority.
Trent Horn:
No, hardly a majority but you still have large numbers of people. You might say a majority in certain states would feel that way like in Utah or in other places. And still there, they end up being subjected to that.
Steven Millies:
But what I’m saying is that when we’re talking about basic liberty interests, those kinds of considerations don’t matter. There is one Constitution for the whole United States.
Trent Horn:
It sounds like you’re saying it would be legitimate, beneficial. I’m not sure. I’m sure you’d say it would be legitimate if the court’s acting in a legitimate way. It would be beneficial or feasible or the best idea to overturn Roe. It sounds like you’re saying to do this once a majority of people believe, it ought to be overturned.
Steven Millies:
I would not say that’s the only circumstance in which I would say Roe could or should be overturned. I would say that is perhaps the most ideal one.
Trent Horn:
What would be the least ideal circumstances where you would say, “Yeah, this is a good opportunity to overturn Roe.”
Steven Millies:
The least ideal.
Trent Horn:
Yeah. Where you would say least ideal, but yeah, I think this is a good opportunity to overturn this.
Steven Millies:
Oh, Casey in 1992.
Trent Horn:
No, no, no. I mean going forward, what does the country have to look like where you would say, “Okay, yeah, this is good for our republic to overturn Casey and Roe and return abortion to the states,” or what have you, what would the country have to look like for you to say that?
Steven Millies:
The least ideal, the most minimal situation where, I would still say Casey. We’d need a time machine. And the reason is because the longer Roe sits as Catholic John Roberts called it in 2005, settled law, the longer Roe sits, the more entrenched it is and should be as a matter of law and stare decisis. In 1992, we had a court that was very closely divided and might well have overturned Roe. And at that point, barely 20 years, not even quite 20 years after the decision, it would’ve been far less constitutionally disruptive than it is now. And this is something else we haven’t talked about either that Roe has constitutional consequences about substantive due process that go far beyond abortion. A lot would be unwound by ripping that jurisprudence out at this point. And that’s why I say we would need a time machine.
Trent Horn:
Okay. Obviously I’m going to say time travel is impossible.
Steven Millies:
Nothing is impossible with God?
Trent Horn:
Well, except for logical contradictions and changing the past would be one of those things. But I would say, so it sounds like what I proposed to you earlier is you would be willing to, I guess my concern is, it sounds like you’re saying that the court should decide cases, not necessarily on their constitutional merits but on how the public receives those cases and you would only support overturning Roe once a majority of people would want it to be overturned.
Steven Millies:
Well, I’m not saying that, the court said that in Casey. That the court does not settle the basic law for all of us in an ivory tower vacuum nor should it. Nor should it. Law is political and political’s not bad but political shouldn’t be partisan. And the problem we have here is the appearance of creeping partisanship in the court. That’s where the delegitimization becomes very, very worrying to me because then there is no expectation of objectivity from the court. We don’t want the court to make the objectively right decision necessarily because that’s very hard for all of us to agree on. But what we do want is for the court to be objective and to be fair, perhaps to use a better word. Confidence in the fairness is what’s been lost here.
Trent Horn:
Okay. I guess on a minor point then for legitimacy and things like that with the court, would you disagree then with the executive branch adding justices to the Supreme Court?
Steven Millies:
Yes.
Trent Horn:
Okay. I would agree with that as well because I think most people would see that that would be clearly partisan to do something like that.
Steven Millies:
And it also doesn’t solve the basic problem. It’s constitutional littering without really helping.
Trent Horn:
I guess, so going back to fairness. Yeah. I guess for me.
Steven Millies:
And by the way, it would be the legislative branch adding justices anyway.
Trent Horn:
Right. But it would be confirmed by the executive and that’s where it would, Congress and all that. All right, so I’m just trying to see the impasse we still have, because the way I feel is I feel like abortion isn’t evil just like slavery or lynching or rape or all other kinds of evils and these sorts of evils should have no protection under the law whatsoever. And so we ought to change the law to protect innocent people. Roe is an obstacle to that but it sounds like as we have been speaking, your main concern, whereas I think Roe should just go so we can put these protections in place, is there are many people who disagree with that, who might consider the political process illegitimate if it were removed. But throughout the course of history, we’ve had these cases and we’ve had many similar feelings.
Trent Horn:
Well actually, instead of going back into the past, let me address a point you made about things not changing in 50 years. You’re correct about that but I also think that Roe enshrines a position a majority of Americans don’t agree with. If you read the Pew research polls and Gallup, a majority of people want abortion restricted at least in some cases. 25% want it basically illegal, 25% want it legal and almost any case about 50%, they only want it legal in rape or the other difficult circumstances. I would say 60 to 70% of the country would want abortion laws that are impossible under Roe. Would you say that’s the case?
Steven Millies:
I’d be cautious. It might be the case. It might be the case. One thing I know, having spent many years studying political science is that polls are only as good as the questions that they ask and combining data from multiple sources like this, where you’re talking about different samples and you’re talking about different questions, the comparability concerns me a little bit. It might be a correct inference. It might be a correct inference but there’s also another interpretation that’s possible, which is that perhaps the American people are a little bit more sophisticated about this than we’re giving them credit for. That is to say what I see when I look at the Pew data that sees a majority supporting Roe as it is, what I might infer is that most people personally find the idea of abortion abhorrent but think the legal status should basically remain the same. That’s a fairly sophisticated position. And with Burke, I agree that the species as a whole almost always is wise.
Trent Horn:
Edmond Burke.
Steven Millies:
Yeah. Yeah. But I would also say this, to go back to our impasse, which I think is not that much of an impasse really. Here’s what I’m actually really concerned about. I’m concerned about the day after Roe is overturned because I think two things will be true. One is that the fight over abortion will go on and it will be more vigorous and it will be uglier and it will be worse. And the second thing that I think will be true once abortion is returned to the states is that abortions will go on.
Trent Horn:
Right. But anytime you outlaw criminal activity, the criminal activity will persist in some form.
Steven Millies:
Yeah. But there will be states that will permit it and women who can afford to travel to those states will.
Trent Horn:
Right. Just like in other cases, when you outlaw certain crimes, the rich will find easy ways to get around the barriers.
Steven Millies:
But they won’t be getting around it, they’ll be doing a perfectly legal thing.
Trent Horn:
Right. They’ll go to different places, just like we have all other kinds of restrictions in the United States. In some states you can buy certain products, certain drugs are legal in some states but they’re not legal in other states.
Steven Millies:
And all of this by the way, really quickly too, is why I disagreed with you earlier that the law is a teacher. I drive too much to think that’s true.
Trent Horn:
Well, are you referring to speed limits?
Steven Millies:
Yeah. Everything I see out there but I’m also talking about what you were talking about just now, the rich evading the law because they think they’re above the law. I don’t have that kind of confidence in the law as a teacher, not at least in the sort of legal and political system that we have.
Trent Horn:
Well, that’s where I would firmly disagree that many people, I would say for example, if there weren’t speed limits like the Autobahn, people would drive a lot faster. I think that many people do things because either they want to comply with the law because they don’t want to be punished or the law has changed their attitudes. I think mask mandates are a perfect example of this, that many people wear masks and then when you had last summer, the CDC relented allowed vaccinated people to not wear masks anymore, the masks all come off everywhere. They just all come off. And then when the mandates are reintroduced, the masks come back on. I think a lot of that there is just fear of government and compliance with power and coercion that are used.
Steven Millies:
That’s not how I teach.
Trent Horn:
Teach what?
Steven Millies:
I don’t teach by fear and coercion.
Trent Horn:
Sure. And I would not do it either. I would say that that is primary. You’re saying, okay, so does the law teach people? But I would also say that many other people I’ve seen since the pandemic and introducing mask mandates, they’ll do things that the mandates don’t require. I still see people jogging wearing masks, even though it’s not required because things have changed in their mindset of seeing something good or what’s required. Let’s close out our conversation then with dividing us about the day after Roe or call it the day after Dobbs maybe because maybe what if that’s the case? What concerns us?
Trent Horn:
And to me, anything you do is obviously going to have positive, maybe unintended negative effects. I see the positive effects of just that it is good to remove unjust laws and prohibiting states from protecting unborn children is unjust. And so Roe would be that way. A good would be accomplished even there in principle. Practically speaking, you would now open up an avenue for some, at least some states and jurisdictions to protect the unborn and we might see more of this growing in different areas than others. And then there will be backlash but I just don’t think the backlash is going to rise to some kind of apocalyptic level. I don’t see the evidence for that. That’s what I would look at that for the day after.
Steven Millies:
Yeah. I don’t think it would be apocalyptic either. I do think it would however, continue our cycle of political decline and further and hasten our cycle of political decline. That’s not apocalyptic. That’s just continuing the trend that we’re on. I’m concerned about reversing that trend, which I’ve written in a couple of places, seems to me as though it really ought to be our preeminent political priority to adopt the language of the US bishops. And I say again, because first of all, our goal really not to be ought to end some abortions, our goal ought to be to end all of them. And the best way to do that is by means of persuasion. The best circumstances under which to persuade people are when we’re really engaged with them in a healthy public space, which we don’t have and which the course that we’re on, I think will make less healthy.
Trent Horn:
Okay, great. Well, I think that that’s a helpful dialogue for us. I’m definitely interested in people’s comments under the discussion below to see what you thought. I think this is definitely more of a finely tuned discussion than maybe a pro-choice. Well, I guess I would identify as pro-life because I believe not only that abortion is wrong but that every effort must be made to restore the legal protection unborn children once had. I would identify with the term pro-life, I don’t know if there’s a certain label you use to identify yourself.
Steven Millies:
As a rule, I spend a lot of time, especially teaching talking about the uselessness of labels because I think they’re destructive in these polarized circumstances. But if I had to fix one, I’d have to take note of what I said earlier about the necessity of speaking theologically, legally and politically at the same to describe myself as pro-choice pro-life. That is to say in the current circumstances, I think having the Roe and Casey regime as it is, is the only legal and practical option. Even as morally, I agree completely with teaching of the church and I’m uncompromisingly pro-life and find the notion of it abhorrent. But I don’t own the United States and neither do the people who agree with me. We all own it. And that’s, I think the most important perspective here to really take stock of the people with whom we share this community, as we try to share it with everyone who grows and develops to share it with us.
Trent Horn:
You would agree with me, we ought to talk to our neighbors, talk to other people, persuade them to want to make abortion illegal.
Steven Millies:
And persuade them in ways that they can recognize and that make them feel heard in the conversation.
Trent Horn:
Conversations that are charitable and grow the number of people who want to make abortion illegal and then.
Steven Millies:
A 100%.
Trent Horn:
And then eventually reach a critical mass to make it illegal.
Steven Millies:
Yeah. But I think where we disagree or maybe not that much, but it seems to me like the ways that we do this haven’t worked and need to be changed and we need to really hear ourselves the way others hear us so that we can adapt what we are saying in ways that will be key to produce the outcomes we want.
Trent Horn:
Okay. Dr. Millies, thank you so much for joining us in the podcast today. Where can people go to learn more about your work?
Steven Millies:
Oh, well go to the CTU website, ctu.edu. And if you’d like to learn more about the Bernardin Center, where we continue the legacy and ministry of Chicago’s Cardinal Joseph Bernadine, you can go to ctu.edu/bernardincenter.
Trent Horn:
All right. Thank you so much. And definitely everyone listening, be sure to continue to support us here at the Counsel of Trent podcast. Don’t forget to subscribe to us on iTunes, Google Play, YouTube, and definitely support what we’re doing at trenthornpodcast.com. Thank you so much Dr. Millies, I know this is, well before I sign off, I appreciate the dialogue you and I we’re able to have and I think it’s appropriate for people to be able to have firm vigorous yet charitable because this is a very contentious issue. I’m already waiting for the comments underneath to be quite contentious. I think that we need to strike a balance between uncharitable rhetoric or engagement that’s just not helpful, that creates more heat than light and treating things in such an abstract way we’re not even really talking about it. I think it’s important to acknowledge the emotions that are involved but still to talk about our disagreements and insightfully reach the crux of our disagreement. Which I think we were able to do this dialogue today. I’m glad that you came on.
Steven Millies:
Yeah. I’ll certainly watch my inbox for what all of this produces but you’ll know from our Twitter exchange, I had some hesitation about this but I really want to salute you for this podcast and for what you’re doing here and for this conversation, I think this was really good. It was everything I hoped it would be. I want to thank you for it.
Trent Horn:
All right. And I hope everyone else will continue with what Dr. Millies and I both agree on, go out, talk to people in a charitable way, persuade them to be pro-life. If you need help with that, get my book Persuasive Pro-Life. Thank you all and I hope you all have a very blessed day.
If you liked today’s episode, become a premium subscriber at our Patreon page and get access to member only content. For more information, visit trenthornpodcast.com.