OA10: Abortion, Roe v. Wade, and the Constitution, Part 2

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode number 10. It's just milestone after milestone. Really, we're going to celebrate everything. Every episode I make a cake and I say, this is a new milestone. How's it going, Andrew?

0:01:30 Andrew: I have literally popped the champagne, that is. That's not a joke. I made fish for dinner, so we had champagne with the fish, and I'm finishing up my glass right here, and have done so in celebration of episode number 10.

0:01:38 Thomas: Classy.

0:01:47 Thomas: They never thought we would get there. We have to invent a fake they to like say they never believed in us. All right, let's get to our first segment.

0:01:56 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:02:06 Thomas: So, listeners should know by now, this is a closed argument. Interesting, interesting segment, unique segment. Our closed argument for today: law professor to students, stop calling me by my first name.

0:02:17 Andrew: Yeah, this is a Wall Street Journal article about Professor Shima Baradaran Baughman, who introduces herself to her students as Professor Baughman but has discovered each year that her students have started calling her Shima. And I understand that this is a trend in society. My son attended an open school for a while up until this year and called his teachers by their first name, and it was a very sort of collegial environment. I've got nothing wrong with that, but I'm 100% behind the professor here. If you're a law student, you call your professor by Professor Baughman. And the reason, it's set forth in there, the law has, for good or for ill, some arcane elements to it. I have friends, I have a close friend of mine from law school who is now a sitting judge in Baltimore.

0:03:06 Andrew: And I call her, even in social gatherings, if anyone is around, she is judge, right? She is not Stephanie. You know, it's, it's just, that's the way that you refer to. There is a majesty, a circumstance. Some of it may be arcane, and some of it maybe necessary, but I think you're badly served coming out of law school if you don't have that sort of hierarchy built in, because you're going to find yourself in court, uh, you know, disrespecting a judge unintentionally. And Uh They

0:03:43 Thomas: And then do they get to hold you in contempt, uh,

0:03:45 Andrew: Do not get to hold you In contempt, but what they, what they do get to do is, uh, not rule in your favor on certain close motions. So, Uh, which Is, yeah.

0:03:47 Thomas: Which Arguably, Sounds More serious. I would rather be held in contempt someday.

0:03:56 Andrew: It's It's Much Much worse. Yeah.

0:03:58 Thomas: We're gonna have a listener by the name of Thomas question of what the hell is being held in content, but we'll, we'll put a topic for another show. And also I would like to add irrespective of everything you just said, if your professor asks you to call him or her by a certain name of any kind, how about you go with that? Like it doesn't seem hard to, to just follow, but that it's really interesting that you call your friend judge. That's a, that's very interesting to me. Is there, am I committing a faux pas by calling Andrew? Do I need to be calling you something different or is that?

0:04:05 Andrew: Yep. Center square.

0:04:32 Andrew: Only when I am appointed to the bench, which was trying to come up with some equally zero probability event. But I there are not many podcasting judges these days. So my my likelihood of my likelihood OF getting an appointment and getting confirmed by the Senate, I think, is pretty low. So, dream job, though. Dream job, Supreme Court. I think I'd be good at it, but, yeah, not a lot of openings.

0:04:44 Thomas: Yeah. Yeah. So, okay. Okay. So what you're saying, if they're hiring, if anyone knows of anyone hiring a Supreme Court justice, you know, is that, yeah.

0:05:05 Andrew: You get back the, we really liked your resume and we enjoyed meeting you. Yeah, sadly, sadly.

0:05:10 Thomas: Yeah, I was going to say, unfortunately, it's all about networking, you now, it is all about who you know. So maybe you may get on LinkedIn and say, like looking for Supreme Court justice position.

0:05:20 Andrew: Is my goal in my resume.

0:05:23 Thomas: Well, when that happens, I will call you Judge, what? Judge Torres? Judge, yeah, okay. That's what I'll call you. Okay, let's get over to our main topic for today.

0:05:29 Andrew: Yeah.

0:05:39 Thomas: We are in part two of X, again, part two X, of Roe v. Wade. And we were promised by Judge Andrew Torrez. We were promised by the Honorable Judge Torres over here that we were going to hear about a little bit more of the backstory, maybe get into the privacy portion of the argument in today's episode. So I'm really excited for that. Why don't you take it away. Oh,

0:06:07 Andrew: Sure. Remember that the operative argument that we were dealing with is the argument that says a fetus is a person for the purposes of the Constitution, and there's no right to privacy in the Constitution anyway. Wade. And we dismissed the first half of that argument in episode nine. So in this, I think it does make sense to kind of talk about the history of Roe v. Wade, because the privacy question is really inextricably linked with how the court ruled in that case. So what happened in Roe way. Um, as of 1970, there were absolute bans on abortion in most states. Okay. Um.

0:06:24 Thomas: Wow.

0:06:48 Thomas: You.

0:06:48 Andrew: But most of those bans were fairly recent in terms of when they had been enacted, um, had been enacted in the past 20 or 30 years. Um... That was not the case, however, with, uh, the actual statute. And so women's rights groups at the time were looking for a test case to bring, to challenge the constitutionality of those laws. And if you will recall from our discussion from the Satanic Temple case in episodes seven and eight, you cannot just bring a lawsuit with the Supreme Court to say, hey, we think bans on abortion are unconstitutional.

0:07:26 Andrew: You actually, Actually, exactly. You have to find a person who has been aggrieved by one of those laws, who has standing to challenge them. And so they found the plaintiff, and her name has since been disclosed, but I'm going to stick with the legal requirements and call her Jane Roe. Uh, and she was uh

0:07:26 Thomas: Need Standing, Right. I had No idea. That's why that was so, that's not a real name? Row is fake? Didn't even know that.

0:07:49 Andrew: Right. Yeah. Yeah, uh, Well, because I mean, she was, you know, breaking the law at the time. Um, Yeah, so

0:07:55 Thomas: Wow. Oh. So, This why is it Wade and not like state of whatever, you know, like, what, so who, Well, we're gonna find out who sued whom, I guess. Oh,

0:08:07 Andrew: Yeah, You, you will, the assistant attorney general of the state of Texas was named Wade. He was named Henry Wade. And depending on how you caption the lawsuit is, you know, how it then gets shortened. And so he was sued in a personal capacity, and also the state of Texas was sued. So Jane Roe was living in Texas. She was approached, and cooperated with, I believe, Planned Parenthood, and with other rights groups, in 1970. She was pregnant, and unmarried, which is important for the history of abortion, because many states had differing laws at the time based on whether you were married and pregnant. And at which point, you know, your husband had a vote and versus unmarried in which it was often just blanketly prohibited, which was the case in Texas. Go ahead.

0:09:07 Thomas: That, What, That, In, Itself seems questionable, constitution-wise. Yeah.

0:09:13 Andrew: So Texas had a law first passed in 1854 that makes it a crime. Right. Doesn't just, Know, outlaw the practice from the physician or whatever. I mean, you may recall Donald Trump getting into some trouble over this, but historically, abortion was a crime. So it was a crime to, quote, procure an abortion or to attempt one. So crime for both the woman and the doctor, except with respect to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother. And that was passed by the Texas legislature in 1854, recodified in 1898, and had remained the same for 116 years, and then was challenged by the plaintiff Jane Roe.

0:09:26 Thomas: Yeah.

0:10:12 Andrew: And we talked about injunctive relief with the Satanic Temple case. An injunction is basically when you get, me take a step back, most lawsuits are over money, right? And even if there is a right that has been violated, the remedy at law for the violation of your right is typically monetary damages, right. So I hire you to paint my house. You never paint my House. I sue you if I can ask for an injunction, which would be requiring you to come out and paint my house. But typically, for reasons that are not worth delving into here, I'm not going to get an injunction to force you to paint my House.

What I am going to get is I'm going to get damages, which is either the money I paid you to paint my house or the money necessary to get somebody else to paint my house. And so that is how the law typically handles the majority of suits between private parties. This is what I do on a daily basis. However, when you are aggrieved by a law, you may also seek declaratory relief And, uh, that is, um, oddly enough, exactly what it sounds like. Um, I mean that without humor, right? Sometimes

0:10:33 Thomas: Yeah.

0:11:25 Andrew: That we're here, but it, yeah, yeah.

0:11:24 Thomas: The State Just has To say, "I do declare, you have been relieved." Yeah, right.

0:11:30 Andrew: It, it means that, um. You are seeking the court to make a declaration that that law is unconstitutional or otherwise unenforceable. And declaratory relief then has no damages component to it. So you're not saying and the plaintiff in this case was pregnant. Obviously, this case was brought in 1970 and the Supreme Court didn't rule on it until 1973. So, you know, another thing we learned.

0:11:40 Thomas: Ah.

0:11:58 Thomas: Yeah, linking Back to Our Satanic Temple episodes.

0:12:01 Andrew: Yeah, right. So there are no damages. She was not prohibited from getting an abortion. She went to another state, she was still seeking the declaratory relief.

0:12:10 Thomas: Well, She could Have sought gas money, right? Yeah.

0:12:12 Andrew: Yeah, you actually could. That is, you know, in actual damages, being recompensed for expenses you earned in anticipation of something

0:12:20 Thomas: You Know A certain Certain amount of mileage on Our vehicle, certain amount of, uh, yeah, wear and tear.

0:12:25 Andrew: Being performed. Yeah. Right. Right, right. So so that's how that's how the lawsuit came about. And the lawsuit was also joined by a physician who had been arrested under the statute, the Texas abortion law, and that there were two lawsuits pending against him. So because

0:12:45 Thomas: So is that why the suit goes against the assistant attorney general? Because he's the one who would have to say, I do declare you've been, uh. You've been. Why is it specifically against him?

0:12:56 Andrew: In this case, the assistant attorney general was the person who responded with the interpretation of the state's law. So if we go back to the Satanic Temple, right, that the the official who is acting in a state capacity may also be acting in an individual capacity. And so there were allegations that he was acting both individually and also in his official capacity.

0:13:06 Thomas: Okay. Huh? Well, that's bizarre. See, cause I would have been like, dude, this is just my job. I don't just don't sue me. Just sue Texas. I'm just, I'm doing my job

0:13:30 Andrew: But you but you have to say, right. Like when you're asked, if I get an abortion, are you going to arrest me? Right. You as the attorney general are going to say, well, yeah, you know, the law says I'm going to arrest you. So, yes. So Right. That's how that comes about. As opposed to and this is actually something I think we've gotten a listener question about it. But when you see those wacky websites that say, you know, it's illegal to spit on a horse in, you know, the county of, you Know, X County, and right, right.

0:13:59 Thomas: Right. All those weird laws that are still on the books.

0:14:03 Andrew: And the the real answer with most of those weird laws that are still on the books is nobody's trying to enforce them. So there are no lawsuits suits to remove them from the books. So a good example of that in my state of Maryland, you may or may not know, actually in the former congressional district in which I left, there is an atheist candidate named Jamie Raskin who looks like he's going to win his election to the U.S. House of Representatives. He's running for Chris Van Hollen's seat. Chris Chris Van Hollen is running for the Senate. Raskin is an atheist. The Maryland Constitution prohibits holding office in the state of Maryland. Whether that would include the House of Representatives, I don't know. But let's pretend for a minute that it included the House of Representatives. Or let's pretend Jamie Raskin someday runs for governor. Law technically on the books says you can't be an atheist and run for office, but nobody is going going to enforce that if Raskin wins.

0:14:15 Thomas: Yeah.

0:15:05 Andrew: So there will be no lawsuit to challenge that provision, and therefore the law will stay on the books even though we all know that that law is unenforceable as it's written.

0:15:15 Thomas: You know, that's interesting. And I'm so sorry for slowing it down, but I just get so curious about this stuff. What if, would it go the other way where the assistant to the assistant, no, whoever it is, the attorney general, assistant to attorney general says, no I'm not going to enforce that. Do people ever sue and be like, hey, dude, why aren't you enforcing this law? Does that happen? How does that lawsuit work?

0:15:19 Andrew: Yeah, absolutely. And typically the way in which that would happen is you would bring an equal protection challenge, right? If they're enforcing it against no one, it would be difficult to bring a lawsuit for the reasons I've just described, but,

0:15:47 Thomas: Right. Well, that's weird. But what if someone just decides like, nah, I'm not enforcing murder. Like, wouldn't there be hypothetically a way, a legal remedy for that?

0:16:05 Andrew: Sure, because the first time they decide not to do it, right, you would you would yeah, you would.

0:16:09 Thomas: Oh, that is unequal protection at that

0:16:11 Andrew: Absolutely, you'd be like, uh, the dude last week got prosecuted for murder, uh, but yeah, if they just stopped enforcing murder for, uh, 30 years and no one noticed, you might have a challenge. I mean, I'm thinking about that. I don't know. I mean, my initial reaction is, you know, you'd always be able to go to an equal protection violation.

0:16:11 Thomas: Point.

0:16:31 Andrew: But if, yeah.

0:16:31 Thomas: But like, Okay, sorry to split, split hairs, but this happens sometimes where they decide to stop enforcing, not murder obviously, but something, for example, like this law, or they decide to stop reinforcing some minor thing. I mean, at the minute they stop enforcing it, there's equal protection problems, right, just no matter what, because at one point they did and then they don't.

0:16:33 Andrew: No, no, no. Good, good.

0:16:51 Andrew: Yeah, there is the potential for an equal protection. I'm sure. I think that's the reason I stopped, because it's not always a violation, but there's always, you would always want to evaluate that to see if it's being equally or not, right? Yeah.

0:16:55 Thomas: Okay, right. Okay, interesting stuff.

0:17:07 Andrew: Okay. So back to Roe v. Wade. That's the status of the lawsuit. Lawsuits were consolidated and brought before a district court and the district court ruled in favor of the plaintiffs. It said that the plaintiff, and she brought it on behalf of herself and all couples. There was, I'm sorry, I should add, there was another John and Mary Doe, which was a married couple, was also joined into the lawsuit. That's not particularly important for this, but they, in preparing this test lawsuit, the groups that were organizing, it really covered their bases. And, you know, so they had unmarried woman, lead plaintiff, doctor, and then a married couple as well, because there was uncertainty about the Supreme Court was going to consider this as a question of first impression.

0:18:00 Andrew: And so it's good legal strategy to say, hey, look, we feel like as of 1970, as a lawyer, you would look at it and say, We feel like the Supreme Court has, you know, is moving in a direction that is protecting individual freedom. This we think we have a good chance on this. There are several recent decisions that I'm actually going to talk about that would give you confidence. But, you know, you never know when you're asking the Supreme Court to consider something they've never ruled on before, you know, what those judges are going to seize on as being salient. So let's, yeah, you

0:18:33 Thomas: You just want to have as many angles of it, like as many plaintiffs, or or whatever, where there's different, you know, right?

0:18:39 Andrew: Want as many avenues to get the relief that you want, as possible.

0:18:43 Thomas: That makes sense.

0:18:44 Andrew: And that's something I see, again, you know, in my much more mundane practice every day. You know, you never, I had a breach of contract case and I thought, you know, there were two really, really strong grounds for justifying my client's breach of the contract for non-performance. But I made six arguments and the one the court liked was argument number six.

0:19:07 Thomas: Huh.

0:19:08 Andrew: And I didn't think it was that great.

0:19:10 Thomas: That makes sense, I get it.

0:19:12 Andrew: Yeah. So you want to make sure you cover the landscape. So that's what they've done here. And they've also filed suit on both Roe, the lead unmarried plaintiff, and the couple filed suit on behalf of herself and all other women or on behalf of themselves and all of their couples that are similarly situated. And the district court, right, this is a federal district court, declared the abortion statutes void and said, yep, we agree. They, that court, said, we think that the Ninth Amendment to the Constitution, that's the one of the catch-all provisions at the end of the Bill of Rights that says the rights that are not specifically enumerated are reserved to the states and to the people. And the district court said the fundamental right of single women and married persons to choose whether to have children is protected by the the Ninth Amendment. And then it, it doesn't say this, but, but again, uh, atheistically speaking, uh, listeners will know this, um, and you will know, and then incorporated to the states through the 14th amendment.

0:19:52 Thomas: Yeah. Oh, right, yeah.

0:20:16 Andrew: Right. So, uh. So the district court said, we agree with you. Uh, and then, uh state of Texas through Wade, appealed to the, uh, fifth circuit court of appeals in the United States court of appeal for the fifth circuit, which sits over Texas and some other states. Uh, and, um. Then the Supreme Court reached down and ordered that appeal in abeyance and said, look, this case is coming to the Supreme Court. Eventually. There's no sense waiting for the Fifth Circuit to issue an appeal here. We're going to take it and rule on the case. And so the Supreme Court took it up. And so that's the procedural posture that the case came about. And then the Supreme Court went through a bunch of preliminary questions, including addressing the question on standing that we talked about in the Satanic Temple case.

0:21:08 Thomas: Right, yeah, I already know how that ends.

0:21:10 Andrew: But in the standing case, although they said Roe, obviously, she was pregnant. This is not a moot case. There's a live case of controversy. And this is capable of repetition, yet evading review, which is the language we talked about. In that case, it held that the doctor did not have standing. And I could go go through that. It's not particularly important, but they said his rights are going to be fully protected when we examine the validity of the statute as applies to the woman. So there's no need for him to be a part of this case so he can get out.

0:21:45 Thomas: Okay, but does that imply that a punishment to the doctor wouldn't have been constitutional, or does that not matter?

0:21:53 Andrew: No, it doesn't imply that at all. When you intervene in a case, it is because you think that there is a right that is implicated by the case is not being adequately protected by the existing parties, right. And what the Supreme Court was saying was, no, no, um, if examining the constitutionality of the statute, though that statute will rise or fall based on how we determine how it affects the woman.

0:21:56 Thomas: Okay. All right, well, okay, I see see what you're saying.

0:22:22 Andrew: And there's No, we can't come up with a scenario under which we would say it's perfectly okay to punish the woman, but we're not going to punish the doctor. Right.

0:22:29 Thomas: Right. Gotcha.

0:22:30 Andrew: And that's that's when you would allow. And I have had, you know, again, in sort of mundane civil cases, I have represented intervenors. Let me give you a good example. This is where I successfully intervened in a case. There was a challenge. I represent a company that had a government contract to provide, was competing to provide supplemental educational services, tutoring to students. And there was a challenge on the award of the contract to, so the contract was awarded to party C. There was a challenge to that by party B, which was another bidder who bid on the contract but didn't get it. And we successfully intervened because we were next in line.

0:23:18 Andrew: Party B was not. And our argument was, Party B is not going to advocate on behalf of our interests because we think if you throw out the contract, if you threw out the award to Party C, you should give it to my client instead because they're next in line. And Party B is only in there to argue for the contract going to themselves. And we were allowed to intervene because we were going to make arguments that Party B was.

And that's really the test is, is there an interest? Is there a potential interpretation of the law that the existing parties are not going to develop? You know, in that case, there was, right? Because neither one of them was going to argue, if you throw this out, we give it to the next person in line. Because neither one of them wanted, neither the government agency nor the other protester wanted that result. So we were allowed to intervene. That makes sense? Cool. But here the ruling was, yeah, doctors' interests are adequately protected by the women plaintiffs, that there was no unique argument that the doctors were going to make that was not already reflected. And I should expand. I've said unique argument, it it really is a test of the specific interests that are implicated. You can make a different argument that nevertheless aligns with the posture of the parties. And the way in which you do that in a Supreme Court case is not by intervening, but is by filing what they call an amicus brief. And I don't know if you've seen that in news reports on Supreme Court cases before.

0:24:12 Thomas: Gotcha, yeah.

0:24:54 Thomas: Right, I know the term.

0:24:56 Andrew: Yeah, amicus, uh, if you, remember Latin, I'm going back to my fantastic high school Latin here, uh, but it means friend of the court. And basically, you can file an amicus brief, uh, on behalf of one side of the case, uh, with the consent of the parties that are to the case, that, um, raises a different argument that is nevertheless aligned with the interests of one, one of the two parties. So, uh, it, it is, it's less intrusive than letting, cause if you let the party intervene, they're now a party to the case, right?

Like that is the court saying, we think you have interests that will be adjudicated by this case. Whereas Um, if you're just an amicus file, you, what you're saying is we care how this case comes out and we want to make this argument. Um. And the Supreme Court sometime, I mean, I, I will not say, uh. That amicus briefs are of no value. But it is a very small number of cases in which the amicus briefs make a difference. But particularly in cases that have, you know, massive public political components, you will see amicus griefs filed by parties that would not be allowed to intervene, but do

0:25:27 Thomas: Yeah, but

0:26:05 Andrew: Nevertheless, they want to have their own arguments considered. And the court can can do whatever they want with them.

0:26:05 Thomas: They want to have their arguments considered. All right.

0:26:10 Andrew: The court's not required to read an amicus brief. They're not required to do anything about it. No party gets to file a response. Occasionally, parties will incorporate some of amicus briefs by reference in their main briefs,

0:26:22 Thomas: It's weird that I know that term because it sounds so obscure. It sounds like it never matters.

0:26:28 Andrew: It is used frequently in public organizations, including some that I'm sure you support and and agree with, as a way of rallying the troops, right? So, you you support the ACLU or Americans United or something like that, and there is a church separation case in which they're not the lawyers, they don't represent anybody, and they're not a party, they may nevertheless say, oh, hey, we're filing an amicus brief in this case in order to make sure that our position is is well represented before the court. Yeah. So that's probably where you've seen it.

0:27:04 Thomas: Interesting. Okay.

0:27:07 Andrew: Okay. So now, so we go through standing court says the woman, Jane Roe has a, has standing to bring this case, even though she's no longer pregnant because of the capable of repetition yet evading review doctrine. The doctors have to get out. The the married couple has to get out because they were not, the woman was not pregnant at the time of the filing of the lawsuit. And so that was considered speculative and not an actual case or controversy.

0:27:36 Andrew: So we're left with just Roe versus Wade. And then the court says, okay, okay, what's the argument here? And the argument is that the Texas laws and other similar laws improperly invade the right to choose whether to terminate your pregnancy, and that that right is inherent in the Constitution and is found either in the Ninth Amendment, which was what what the district court said, right, as one of the rights reserved to the people, or in the concept of ordered personal liberty that is embodied in the 14th Amendment's due process clause, which is then protected by the, quote, penumbra, which is a fancy Latin word meaning shadow,

0:27:36 Thomas: Okay, yeah, Yeah. I like that word, right?

0:28:22 Andrew: Of the various Bill of Rights, so First, Fourth, Ninth Amendment, Fourteenth Amendment, that they sort of cast a shadow from which we uh divine the right to privacy, and that phrasing, the penumbra phrasing, is what I think has gotten a lot of um right-wing judicial activists sort of up in arms about, like, see, they're just making stuff up. Like penumbras yeah, You know, the numbers aren't in the Constitution.

0:28:47 Thomas: Like, it's not not specific enough. I

0:28:50 Andrew: Um, and and so, you know, what, what I would say with respect to that is uh I would focus on two specific things that are in Supreme Court precedent that use the same reasoning as the penumbra reasoning.

0:29:06 Thomas: Was totally gonna ask you, does This, this is, does the penumbra term come up other places? That was going to be my first question. Yeah, before this, uh, independent of this case. Okay, no.

0:29:11 Andrew: Yeah, yeah. So, yes. And so here's what the Supreme Court says, and I'm going to omit the citations. If you're reading along with us in Roe v. Wade, this is section eight. It begins on page 152. So here's What the Majority Says in Rovie Wade. I want you to think about how this is characterized today. The Constitution does not explicitly mention any right to privacy. In a line of decisions, however, going back perhaps as far as Union Pacific Railroad versus Botsford, which is 1891, the court has recognized that a right of personal privacy or guarantee of certain areas of zones of privacy does exist under the Constitution. In varying contexts, the Court or individual justices have found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.

0:30:07 Andrew: And all of those, every time I paused, there was a case, and I'm not just of respect for our audience, I'm not going to read these case citations, but they include an 1886 case, a 1928 case, a 1923 case. So again, this is not something just made up on the spot in 1973 by a liberal court.

0:30:11 Thomas: Would Would Scalia say, but, yeah, but those cases aren't the Constitution, I get to disregard all those? Yeah, yeah.

0:30:33 Andrew: Correct. Yeah, it did. Did the founding fathers in 1789 think, no, so, you know, take your 1886 case and go home. But most lawyers would say, well, you look, if this concept of ordered liberty has been around for 100 years, we at least have to take it seriously. But again, Again, notice that, you know, the sort of implicit straw man that set up the Supreme Court, very, very clear. Yes, we recognize the word privacy is not in the Constitution. Nevertheless, we've used that term when talking about what amendments mean and specifically what the First Amendment means, what the Fourth Amendment, what the Fifth, what the Ninth, what the Fourteenth Amendments mean.

Then the Supreme Court says these decisions make it clear that only personal rights that can be deemed, quote, fundamental or, quote implicit in the concept of ordered liberty are included in this guarantee of personal privacy. They also make it clear that this right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. And I want to focus on two of those cases that I have not read, but that are discussed in this long paragraph. And the first is Loving v. Virginia, which is a 1967 Supreme

0:30:37 Thomas: Uh, I've heard

0:31:48 Andrew: Court case.

0:31:48 Thomas: Of that Oh, yeah, that's right. Isn't there a movie coming out about that?

0:31:51 Andrew: There might be, I don't know, I Don't Know Anything About Contemporary Personal Culture.

0:31:53 Thomas: Oh, that is right. Never mind. I'm asking the wrong person. I could be way off, but is that the interracial marriage case? Yeah, okay. There is a movie coming out of that. Yeah, they will have been reversed by then. There will be no.

0:31:56 Andrew: Yes, yes, right. Yeah, I'll see it in 25 years, um, right. So

0:32:09 Thomas: Well,

0:32:10 Andrew: Yes, loving versus Virginia, 1967 case that struck down Virginia's laws against miscegenation or interracial marriage, uh, and uh, Griswold versus Connecticut, which is a 1967 case, the cite here is a super cite so I don't, I don't have the uh, the date, but I think it's 1967, could, could be 1968. That case struck down a law that prohibited selling contraceptives to unmarried individuals. So the first question that I would ask anybody who says the right to privacy is not in the Constitution is, so are you telling me that the Supreme Court was wrong in Griswold and in Loving v.

0:33:01 Andrew: Virginia? Which is to say, it's perfectly okay with you if the state of Alabama wants to ban interracial marriage. You think the Constitution says nothing about that. Is that correct? And then similarly, if the State of Mississippi wants to make it illegal for unmarried women to purchase contraceptives, you're okay with that. And if you are, least you're consistent. Go ahead.

0:33:22 Thomas: Here is the weird thing, Though, because I wouldn't have thought of either of those as relating to a right to privacy. I would have thought they were both equal protection, protection.

0:33:32 Andrew: Interesting. Your equal protection order.

0:33:34 Thomas: I, I would think that, uh, similarly to the, we've, e-Harmony and that kind of thing where, Okay, sure, a white person can marry a white person, but a black person can't marry a black, you know, that seems pretty obvious to me that you're, you have a different law for different races, you know, it seems like an equal protection and then

0:33:54 Andrew: But keep In mind there, the reason that you have a law is because you have protects equal protection in places of public accommodation, right? So the Problem with the issuing of a marriage certificate is that that doesn't trigger within those specific state protection cases that protect places of, you know, the businesses that do business with the public.

0:33:54 Thomas: Oh, Oh, I, I Didn't. I guess I missed that, so That equal protection Thing is actually specific to public places of business or whatever. Oh man, how did I not know That, okay, now, now I See what you Mean, well, but, but Wouldn't that affect the contraceptive one, right?

0:34:21 Andrew: Right. Yeah, correct. So when you're, yes, it Could be an argument in the contraceptive one. And then the question would be whether there was a justification. You would have to have a compelling state interest that justified the distinction between married and unmarried couples. Principles. But, but remember that the point of all this, and I think that's, I think that's very creative, the point of going through the discussion is, in order to overturn a state law, you have to found, you have to find that right either in a federal law that's, that supersedes the state law, right, that is meant to preempt the state law, or in the Constitution itself. And if there isn't, then, you know, you're sort of left with, well, this seems bad, but I don't know, who are we to tell Mississippi that they can't prohibit the sale of contraceptives to those unmarried harlots, right?

0:34:56 Thomas: Right. Yeah, Right.

0:35:37 Andrew: So that's kind of the first step when, in my view, when someone says there's no right to privacy in the Constitution is to say, well you know, the Supreme Court analyzed that the same way, right. We know the word isn't in the Constitution, just like the words separation of church and state aren't in the Constitution. Just like lots of contemporary phrases that we use to describe our rights are not in the constitution, but are instead in case law.

But there's a pretty long-standing body of case law finding that the principle of liberty, and certainly on these personal crucial decisions, decisions is indeed protected by the Constitution and that that's consistent with what the Bill of Rights was meant to do, right? Like the Bill of Rights Was sort of meant to protect this kind of Lockean System that if you are not hurting somebody, and the government, that the government has to show a compelling interest before it intervenes in the most private decisions that you make, in telling, telling you who you can't marry or how you have to have children or that sort of thing. And that, I think, is is a pretty conservative case, to be honest with

0:36:46 Andrew: You, for the protection of those rights.

0:36:42 Thomas: Right. So that's why it's privacy, because I don't need the government looking into whether I'm married or not.

0:36:52 Andrew: Exactly. And and privacy that I wish they picked a better word than privacy. Right. It is.

0:36:52 Thomas: Okay. Okay, yeah, yeah. Maybe it's just different from

0:36:58 Andrew: Yeah, it is, you know, in the privacy of your own head and your own marital relationship. Do you want to have a child? Do you want to terminate that pregnancy? They could have picked a better word, they do, they do call it ordered liberty, uh, they could have picked a better word than privacy, and they certainly could have pick a better word than penumbra, which is just, you know, I mean, that is like uh, John Kerry windsurfing, like, but doesn't it carry that like, you know, character of, you know, sort of ethete liberal intellectual snobs, like, talking about their penumbras while sipping their lattes and you

0:36:59 Thomas: My normal understanding.

0:37:19 Thomas: Oh, I love that word. Yeah. We don't

0:37:31 Andrew: Know, so there

0:37:32 Thomas: Have enough. The problem is we don't have enough eclipses for people to be more familiar with the penumbra. Are there any any umbras of the law? Is that ever? No umbras.

0:37:36 Andrew: Are no umbra there are, are no umbras

0:37:41 Thomas: Just penumbras.

0:37:41 Andrew: Uh so um, why don't we pull the discussion to a close on on that

0:37:43 Thomas: Okay. Yeah, we We've got to because we now have what we might as well edit and change to a 45-minute limit in our Patreon because you guys are just so nice. We want to give you that time. But before we do, let's go to not an official segment, but our last thing we want to talk about today, which is we made a number of of guest appearances. And we just like to give those shows a little publicity for being kind enough to have us on to talk about this show and for Andrew to talk about some interesting legal issues. I'll start. I went on Angry Black Rant the other week. I'm not totally sure on the release. We're recording this out of time, but I believe it will have already been out. So I'd just like to say thanks so much Ishmael for having me on Angry Black Rant. We talked about a lot of issues, not exactly relating to the show, but we also also talked a good amount about opening arguments. And I want to thank Ishmael for that. And I highly recommend his show, Angry Black Rant.

0:37:47 Andrew: Um yeah I love, love Ishmael

0:38:44 Thomas: Definitely.

0:38:44 Andrew: Um, I was on episode 80 of the Gaytheist Manifesto, I'll have a link in the show notes, um, Callie and Ari are fantastic, uh, Thomas has been on the show before talking about the horrors of President Trump, and it's a great show. We went over a little bit of old territory, but hit some new territory and some interesting conversations on public accommodation and equal access under law, on the Christian Mingle settlement, entitlement on the concept of promoting change through the judiciary versus having it arrive organically. It was a, it was a good episode and, and we love Callie and Ari and check that out.

0:38:57 Thomas: Yeah, definitely.

0:39:27 Thomas: Cognitive Dissonance. And that, I mean, what can I say about those guys? Longtime friends. I love Cogdiss so much. I got to see him the other the other month I got to go to Chicago and actually record in glory hole studios. Wasn't able to do that this time, but nonetheless, it was still a fun time was had by all. And I really, really appreciate everything those guys have done in promoting my work throughout the years. And specifically in this case, what is an amazing show and opening arguments. So thanks so much to Tom and Cecil, check out Cognitive Dissonance. If you haven't already.

0:40:00 Andrew: And finally, I went on Scathing Atheist. That's also being recorded as we're recording this, but I believe it's going to be episode number 185. and as with Cogdis Thomas and I have been huge fans of scathing and God Awful Movies since time immemorial, and those guys, Noah, Heath and Eli, have been tremendous supporters of us, they have done a lot to help us out in launching the show, and to promote the show, they are friends of the show in every sense of the word, and I can't imagine we have any listeners who are not also listening to Scathing. Well, no, some members of my family. So Aunt Donna, I want you to go listen to you may or may not enjoy this. I start to think about it.

0:40:15 Thomas: Absolutely. Yeah. Yeah. So that's on you. Yeah that

0:40:51 Andrew: No, but it's a great show and God-awful movies I think you and I agree is the funniest thing on the face of the planet.

0:40:58 Thomas: Is it is very fun I love that show so much Famers, the Inciting Incident Podcast, Jeff S., Kaylee Reiser, Michael, Hunter Ash, Patrick Fussell, thank you for the pronunciation correction there, Amanda Lipnack, Desecrator Roger Metcalf, Jim Grove, Steve Sigmund, Anonymous, Dale, Dave Nichols of Positively Doubtful Podcast. Podcast. And Eli Bosnick and Dan Irizarry, thank you guys so much for being our top patrons. So we got to get out of here, it's been another very fascinating episode, as always, thanks Andrew, for being an expert, uh, I'll thank myself for not being an expert, oh

0:42:22 Andrew: As always thanks to Thomas for driving the show and making it happen and asking the best questions that, uh, anybody can ask

0:42:30 Thomas: Man if I drive the show, do I get to say I'll turn this thing around? I'll turn this show right around, Andrew yeah

0:42:33 Andrew: That is our next segment, we're gonna launch, I will turn this car around, see

0:42:39 Thomas: All right, thanks for listening, go to patreon.com/law if you'd like to extend our show time, thanks and we'll see you next week

0:42:55 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.