The post-Dobbs loophole

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NICK EICHER, HOST: It’s Friday the 15th of May. Glad to have you along for today’s edition of The World and Everything in It. 

Good morning, I’m Nick Eicher.

MYRNA BROWN, HOST: And I’m Myrna Brown.

It’s Culture Friday.

The Supreme Court handed down an important abortion ruling late yesterday—not on the merits yet, but on the practical reality of post-Dobbs America. 

The justices, and we don’t know exactly which justices, voted to keep mail-order access to the abortion pill mifepristone in place nationwide. It will continue as litigation continues, the new stay blocking a lower-court ruling that would have restored an in-person dispensing requirement.

EICHER: Now what makes this case especially significant is Justices Clarence Thomas and Samuel Alito issuing unusually forceful dissents. They argued that shield laws in blue states, federal FDA policy, and mail-order abortion networks are effectively undermining the Dobbs decision. And doing so by allowing abortion pills to flow freely into states that have laws protecting the lives of the unborn.

Well now John, this is quite the turn of events. Do you think we're entering the next chapter? Now it seems to me this is not about whether abortion is legal nationally. This is about whether pro-life states can even enforce abortion restrictions.

JOHN STONESTREET: Oh, I mean, we’re not entering it, we’ve been in it for a while, at least since the FDA took those unusual steps to remove the in-person requirement during COVID and then extended it beyond that.

I think it’s also important to say that Justices Thomas and Alito did not just dissent, and they did not just dissent forcefully. They called the activities of these particular companies… well Justice Thomas called it criminal. Justice Alito called it felonious. So it’s really a remarkable thing. 

It’s hard to see, on a legal level, how Justices Thomas and Alito are mistaken. They’re identifying clear ways in which this violates settled law, and it does restrict the rights of these states which the Dobbs decision purportedly enforced. It restricts the rights of these states to have the laws that they want within their own states.

This isn’t the end of the matter. Alito pointed specifically to other things that could happen, that should happen, and this doesn’t fully settle the issue, it sent it back to the Fifth Circuit, so we’ll see what happens there.

But it is disappointing, because now a court decision which was rational, made sense, legal, all of that, has now essentially been effectively overturned. And we know that the Trump administration and the FDA are dragging their feet intentionally, pushing the review out even further with really no change in sight.

BROWN: You know, clearly the administration and more than a few Republican leaders did not want to talk about abortion during the midterms. But guess what? I think we’ll be talking about abortion during the midterms. I don’t see how that’s avoided.

STONESTREET: Well, it’s a good question, and so this should mobilize pro-life voters, that this is a political fight. It should mobilize Republican voters that care about this issue. And I know that’s not 100 percent certainly at the party level anymore, tragically. But the buy-in from the Democratic lawmakers on this friends-of-the-court brief was so vast and so overwhelming it proves that this is the number one issue.

And I think it also points to something deeper that we’ll see at the midterm elections: the cultural environment in which we live.

You know, it may be, as Professor Robby George has said, that we have to move beyond kind of the legal technicalities of how Roe was decided here and there, and really get to arguing the idea that the government has a responsibility to protect the rights of its citizens, particularly the rights outlined in the United States Declaration of Independence, beginning with the right to life.

Who counts as a citizen? Who counts as a human being worthy of protection? And of course, we’ve got all the reproductive science on our side of when life begins, and the distinguishing between some humans and other humans as not being valuable persons—that was the source of America’s original “original sin”, and this is our current “original sin,” just in a different form.

EICHER: Well John, a friend of yours was in the news this week, courageous young lady who was in your Truth Rising documentary last year; Chloe Cole. She is known as a detransitioner and Christian campus activist, but she had to postpone this week a speaking event schedule for the University of Washington. 

She cited threats from far-left activists and concerns about campus security. Chloe Cole explicitly connected her decision not to speak to the assassination of Charlie Kirk, saying the atmosphere now around controversial political events has really changed, and that public speaking carries risks you simply cannot dismiss as mere outrage from the online world or theatrics on a campus.

I wonder John, are we in a different phase now where it’s just normal for controversial speech to be met with realistic, violent threats?

STONESTREET: Yeah, we, we are.

Listen, there’s been a level of anger and intolerance toward people who hold different views than you, and that’s been a part of the American culture for quite some time, it’s been a part of Christian conservatism.

The difference is that now, from the left, it’s not that these positions are beyond the pale, but people who hold these positions are unworthy of dignity, they’re unworthy of protection, they deserve to be harmed.

And I appreciate you calling Chloe a friend. I like to think of her that way. I call her a hero of mine because of her courage in following what’s true and a sister in Christ because of what Jesus did in her heart.

But she made it very clear in her video that it’s not the threat that’s keeping her from going there, it’s the inability to arrange security right now in a way to mitigate that threat. She still wants to go and she wants to go to campus after campus after campus to tell this message. And she wants to do that because she knows that ideas matter and bad ideas have victims, and that she was a victim of those bad ideas and that this needs to be, kind of, countered.

But think about that. The left spent a decade critiquing the right for violent speech. Chloe Cole did not cancel University of Washington because she thought that someone might disagree with her. It was because of the threat of violence and the evaluation of security. And that tells you that there is a difference. And there is clearly a difference here. 

And we have enough of a track record of knowing where that kind of violence is coming from, and also, that a big subpopulation within the political left in particular that is perpetrating this violence that has members of the trans community. It just has to be said. 

It just has to be said. 

And if you believe that all of reality should change to orient around your belief, your deeply held belief, then it’s a small step to believe that if someone refuses to go along, that they’re a threat to your reality. 

And so, ideologically, it all makes sense how it gets to this point. But there is a difference, and we should know that.

BROWN: John, as I listen to you talk about speech and anger and hate and all kinds of vile things that come out of people’s mouths, I’m thinking about something that I heard just this week.

The Supreme Court this week struck down a 2023 federal court-ordered Alabama congressional map. Alabama is my state. And it’s pretty simple: you can’t discriminate on the basis of race to remedy discrimination on the basis of race.

But you know, this brought a completely unhinged reaction from Alabama State Rep. Juandalyn Givan. Very irresponsible coming from her, let alone someone in authority, let alone someone educated well enough to be a lawyer. 

This is as clean as we could make it—this personal attack on Justice Clarence Thomas:

GIVAN: He is the man who has turned us back into the hands of the Master. Massa! Just this one, listen! Help me, somebody, help me understand this black man right here. Help me understand this crazy-[bleep] Uncle Tom. Help me understand this lynchman. I just want something, I’m sorry. Help me.

Just embarrassing. And again, this doesn’t fully capture it. 

Other than just being stunned by her comments, I really didn’t know how to talk about this on Culture Friday. 

Then my husband sent me these comments from another lawmaker, Texas representative Wesley Hunt, pushing back on what he calls reinvigorated talk of Jim Crow, while at the same time defending America as a Christian nation.

HUNT: As someone who is a direct descendant of a slave, as someone whose great great grandfather was born on a plantation, I can assure you: Slavery is over. Jim Crow is dead. When I go anywhere, I don’t see any ‘White Only’ signs. I don’t, I promise you. I am a black man who represents a white majority district in Texas.

John, I’ll be very honest with you, I think this goes beyond red versus blue, conservative versus liberal.

STONESTREET: Well, it is. And I’m not for gerrymandering, I’m not for the way it’s been done by either party. I’m not for a political process whenever it gets shrunk down to mere plays of power. But all that’s political process stuff. 

What you’re asking is something different, which is the inability to have conversations across any lines without bringing in power analytics, and it all just tells us we’re all good postmoderns now. I mean, that’s the epistemological framing of postmodernism. When taken to its extreme, it becomes critical theory. 

I know I’m talking kind of academic language, and I guess at some level I’m speaking to those who during the heyday of people critiquing critical theory in education, said, “Well, critical theory is just a theory.” No, it’s a theory of everything, and that makes it very different. "Critical theory is academic. No one has actually read these books." It's like, well you don’t have to read these books when critical theory goes from being an academic theory to being a cultural mood taking over entire segments of the population.

But you know, that’s what's unfortunate, to hear that. That has to take precedence even over the actual identity of who Justice Clarence Thomas is, what race he is, what his socioeconomic and racial and cultural background involved. You have to retell his story because it just doesn’t fit the narrative that comes out. 

But he’s been a real gift to our understanding of race. I think he’s been a real gift to our understanding of jurisprudence and also an understanding of an applied faith in the public square. So I’m thankful for him.

And unfortunately all those contributions are being drowned out by all the squealing being done around vote maps and districting and so on.

BROWN: John Stonestreet is president of the Colson Center and host of the Breakpoint podcast. 

John, thanks!

STONESTREET: Thank you both.

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