OA11: Abortion, Roe v. Wade, and the Constitution, Part 3

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. How's it going, Andrew?

0:01:22 Andrew: I'm, I'm great, Thomas. How are you?

0:01:23 Thomas: Oh, I'm doing great. This is episode 11 of Opening Arguments, and today we'll be covering part 3 of Roe vs. Wade. We got a couple quick announcements before we go. First off, Andrew, out of the kindness of his heart, did an extra bonus episode for patrons only over on patreon.com/law. What can we say about that other than you went into privacy and whether or not it's in the Constitution? You sort of elaborated on we both feel really grateful for our patrons, so we wanted to give give some extra stuff then

0:01:53 Andrew: Yeah, I mean, everybody, everybody has been really fantastic in supporting the show. We are taking to heart what the listeners have had to say in terms of feedback. And, you know, we just wanted you to know that we felt like given a little bit back here. And so I put out this deep dive episode that takes the principles that we talk about in last episode, 0810. And in particular, I made the case that the right to privacy was well entrenched in constitutional jurisprudence before Roe versus Wade. And what I do in this deep dive episode is I take a look at five of the key cases that predated Roe v. Wade that are cited by the the court and I walk through the history of that so um if that sounds awful then don't listen to it uh but

0:02:44 Thomas: Delete your pledge no I'm just kidding yeah no we we want we'll make sure we always have plenty extra stuff and also just to give a little sneak peek, Andrew and I are talking about lining up our first uh Law'd Awful Movies um and we're gonna pick one just to do even if we're not at that goal, we just want to do one to kind of give a preview of what it'll be be about. So you

0:02:48 Andrew: Um yeah oh man and I I have such a good idea for this that I'm gonna have to tell Tell Thomas off the air.

0:03:08 Thomas: Haven't even told me yet.

0:03:10 Andrew: Yeah, I have not. It'll be a surprise.

0:03:10 Thomas: Okay. Oh, I can't wait. So that will be awesome. All right. So just as another thank you to you guys for supporting the show. And, oh, I like your idea of a deep dive and a patron commented. I don't know if you saw it, but they said they like the idea of the deep dive kind of bonus content where you go a little deeper into the case loss. That's that's really cool. Let's get to our first segment of the day.

0:03:31 Clip: He who questions training, only trains himself at asking questions. What?

0:03:40 Thomas: And by the way, this is now officially an every show segment. I don't know if you realize We hit the goal. Thank you for getting us to our goal. We are now going to answer a listener question every show, and we are not going to run out anytime soon. That may be a half, like 50% due to Eric Brewer, but that's okay. You know, we'll take the questions where we get them, so Eric Brewer asks, "Is a lawyer obligated to tell his client the hard truths?" Hmm.

0:03:45 Andrew: That's right.

0:04:11 Andrew: And I really like this question. Because there's no easy answer to it. Right. What what lawyers are bound by is every state has some version of the American Bar Association's model rules of professional conduct, right? It varies. You are, when you become a lawyer, you take the bar exam and you become admitted to practice law in a particular state. So I'm admitted to practicing law in Maryland and the District of Columbia. And every state has slightly different ethics rules, but they're all based on a model set of rules. So it's pretty much the same in every jurisdiction. What the ABA says is, among other things, that the lawyer has an obligation to zealously assert the client's position under the rules of the adversary system.

0:04:15 Thomas: Hmm.

0:05:01 Andrew: And this is sometimes called the obligation of zealous advocacy. And the idea is that unlike classical European legal systems, our system is based on a debate model, right? That is two parties, each are represented by lawyers, and each side wants wants to represent their side as zealously, as strongly as possible within the bounds of the rest of the law, right? So for example, we've already talked about the firm and like, I can't help my client, you know, counsel my client to commit future crimes or something like that. But within the balance of the Law, I'm obligated to represent my client's position and represent represent her as, uh, as, as strongly as I can, as zealously as possible within the bounds of, of the law.

0:05:14 Thomas: Oh.

0:05:49 Thomas: I like to ask the dumb questions here on Opening Arguments, but what about the old thing where you can't, you don't, there, there'll be the movie trope where they, not exactly a trope, but the, the convention where they, they like can't, you know, you can't, the lawyer doesn't want to know. Essentially, the lawyer's like, I don't want to know what's going on. I want to be a plausible deniability kind of thing. How does that work? If the lawyer somehow knows 100 percent that the person they're defending, for example, in criminal court did it, you know, like, does that does that even matter? Because I feel like a public defender. I mean, I feel Like, 90% of the time they're going to just be like, this person did it, but they, they still have to defend them. Right. So why would it matter if a lawyer knew that you did it?

0:06:03 Andrew: Yeah. Yeah, the So here's, here's how that matters. Um, there is a rule against, uh what they call subornation of perjury, which is to say, I cannot put on a witness and have that witness give testimony that I, as the lawyer, know is false. But it is very, very narrowly interpreted. So I can put on a witness, and he can give testimony, that I'm pretty sure is false, but if the witness says to me, or let's take the paradigmatic case, and it's well known I don't do criminal defense, But assume that I did and I am defending you, Thomas, for murder. And you come to me and say, you know, Andrew, I did do it. I did. I didn't murder that person.

0:07:07 Thomas: Right.

0:07:17 Thomas: Well, let's be more realistic. I mean, it's going to be embezzlement when, I mean yeah, yeah, this is all hypothetical. Aesthetical.

0:07:21 Andrew: Right. Yeah. Hypothetically. And I did, I did steal the money, right? So, um, you tell me that, and under the ethics rules, I can't tell anybody because it's a crime that happened in the past, um, Uh, but I can, now I am now prohibited from putting you on the stand and asking the question, Thomas, did did you really steal that money? And then you say, no, absolutely, I would never do that, right? Right. So, for example, very famously, another name drop moment, my criminal law professor, Alan Dershowitz, has as his policy, he never asks his criminal clients. He says, meeting one, I'm never going to ask you if you did it. I don't care if you didn't. You are not to tell me if you did it. You were not to tell me you didn't do it. I don't care. And by doing that and making that very clear at the start of the representation, then he's never in a situation where if in his judgment he wants to put you on the stand and ask the question,

0:07:22 Thomas: Yeah. Huh.

0:07:42 Thomas: Did you order that code

0:08:19 Andrew: Right.

0:08:20 Thomas: Red?

0:08:20 Andrew: Yeah. Uh, and, and that way he's always in the clear on that subordination of perjury rule. So to kind of bring this all back together again, um, there's tremendous play in the joints in the system, right? Different people interpret the rules differently. We have some absolute bright lines. Um, those bright lines include, for example, in, in my world, Um, which is, you know, typically business disputes, uh, which are almost always there's, there's a litigation component, but they're almost always settled rather than, uh. Taken to trial. And, um, the client has the final say in, uh in whether to agree to a settlement, right? Whether they are paying the money or receiving the money. Um, it's up to the client to, to sort of say yes or no, uh I'm going to take this to, dismiss my case, or I'm going to take this, I'm going to pay this out in order to get out of this case.

0:09:08 Andrew: And, you know, I can advocate very, very strongly. I can say, hey, look, you know, you have the opportunity to pay $15,000 and be done. And if we go to trial, it's going to cost you $30,000 in legal fees. So I strongly recommend you take it, but it's your choice to decide, you now, yes or no. So, you know, we have certain signposts. Client always client always gets to decide on a plea. Client always gets to decide on a settlement. You can't suborn perjury. You cannot commit crimes. But in the middle, there is a tremendous variation in style. That was sort of why I liked the question. For me, I always try and tell my clients the hard truths, which is to say, I want to sit down And one of the very first things that I will do after we've developed some facts for client that, let's say I we are the plaintiffs in a civil recovery case.

0:10:05 Andrew: There's been a breach of contract and they have told me their position and I am sympathetic and I agree. And the other side is doing X, Y and Z. And we're talking about, you're going to recover all of this money. And then I will sit down and do a mock cross-examination with them in preparation for their deposition. And I will make the best case I can for the other side. And that's often a very, very painful experience for my clients because they go in and they're thinking like, wait a second, you're supposed to be on my side. Why are you doing this? And I say to them, like, look, you want me to do this now because you do not want the first time this happens for you to be, you sitting across from opposing counsel at a deposition and for you to be taken aback. And, you know, let's talk about where the weaknesses in your case are.

0:10:50 Andrew: Let's talk about, I get, I totally understand this is completely unfair. I'm going to get you as much money as possible. But let's talk about what the risks are. Let's talk about how this is going to impact your business. Let s talk about the legal cost. Let's talk about, uh, how much time you're going to spend on this. Let'S talk about what they're going bring up. You know, you've got there, they're gonna ask for your email and, oh, look, it turns out you've an entire folder here that we're going have to produce. That is emails back and forth between you and their customer service rep that are, uh things that you'd rather your wife not read in a public, like, yeah, those are real key, real thing, real issues that I faced all the time.

0:11:25 Thomas: Settle. Settle! Yeah.

0:11:26 Andrew: Yeah. Uh, and you know, as, as a lawyer, it's my view that, but the way to zealously advocate for your client is to understand the full and complete picture to make sure your client is as unsurprised as possible and then has that rational view sort of going into it. So, you know, to the outside world, I want to be, you that pit bull and that in a position where I'm not giving an inch on your position. But, you know, when we're in my office, when we're discussing sort of the merits of the case, I feel a personal obligation to tell you, hey, look, like, I get that you're really, really mad and I get that you didn't do anything wrong, but a judge or a jury is going to look at X and they're going to draw an adverse inference, man.

0:12:14 Andrew: Like, they're gonna look at this and this looks really, really bad. And, you Know, that's not fatal, but you need to take that into calculation. You need to decide how you move forward. Keep going.

0:12:21 Thomas: So, yeah, to answer the question, though, it sounds like you're not obligated. It's just you do that because you think it's the best way to be a lawyer, right?

0:12:29 Andrew: I, yeah, you're obligated. I am obligated to zealously represent you. Any lawyer is obligated to zealously represent you. What counts as zealous advocacy differs from lawyer to lawyer. So that sort of goes back to, uh, and, and again, you know, we have our standard, don't take legal advice from a podcast.

0:12:33 Thomas: All right.

0:12:45 Thomas: Yeah.

0:12:45 Andrew: Uh, but, but the one piece of practical advice that I'll continue to repeat is, um, you now treat a lawyer like a doctor. If you are making a commitment for a serious case or a serious engagement for your business, you know, treat it like you would a serious surgery, you know, and people talk to multiple surgeons, but I find very few people talk the multiple lawyers. And and I think when you do that, you get every lawyer I know is willing to give you an initial consultation and chat with you for, half an hour or longer about your case and sort of tell you what they would do. And more people ought to take advantage of that. And I know like my friends who are lawyers hate it when I say this, but it's true. I mean, you ought to talk to multiple people.

0:13:30 Andrew: You ought to take advantage that they can do that. Yep.

0:13:30 Thomas: Yeah, get a second or third opinion. All right, well, thanks, Eric, for the question. Thanks for all the good questions from you, Eric. We really appreciate the participation in the show. All Right, getting over to our main topic for the day. Can I officially say, is this the final part of Roe v. Wade? I guess we'll see.

0:13:39 Andrew: Absolutely. Yeah. Yeah, yeah.

0:13:54 Thomas: I don't know. I think it is. So, So part three of three, Roe v. Wade, where are we, Andrew?

0:14:00 Andrew: So in the first two episodes, what we did was we looked at some common perceptions today about constitutional law, which is to say, number one, we looked at what is the state's interest in protecting the life of a fetus, right, the life of an unborn child, if you're a pro lifer. And we discovered that in Supreme Court history, the idea that a fetus is a human person and entitled to full human rights is not well supported in the 200 year history of Supreme Court jurisprudence on this issue. But rather that there is some interest in the life of the fetus that is a medical interest that is shared by the woman.

0:14:50 Andrew: And so the state has some interest in being able to protect fetal life. And then we looked at the opposing interest of the pregnant woman who is interested in having an abortion, which is a component of the right called privacy in the Constitution.

Even though there's no provision, there's not one amendment that says you have a right to privacy, In the last episode and in our deep dive, we talked about how there are a well-known series of Supreme Court opinions dating back to the 19th century that protect basic personal liberties, things like the right to marry the person whom you choose, things things like the right to purchase contraception and engage in family planning, things like the right to attend the school of your choice, things like the right to engage in close relationships regardless of We talked about the Loving vs. Virginia Case. And we saw that there's a very, very strong, what the Supreme Court in my view, kind of unfortunately labeled the right to privacy. And so now we get to put that right to privacy against the state's interest in the health of the fetus together at the end of the Roe v. Wade decision. And here's what the Supreme Court came up with. Okay.

0:15:49 Thomas: All

0:16:12 Andrew: They said,

0:16:11 Thomas: Right, drum roll. Here's the actual decision, right? This is your Roe, you know, you're sitting there, the legal team, you are waiting to find out, well, you already had the abortion, but you are wanting to find out if you are, oh, and she is not getting any penalties, right, we determined that too, right. It's just a declaration.

0:16:13 Andrew: Right. Exactly. Exactly right.

0:16:30 Thomas: So we want them to declare that this law was unjust. So drum roll. Here it goes.

0:16:36 Andrew: OK, So, as as everyone knew going into this, the court strikes down the Texas law. They say a state criminal abortion statute of the current Texas type that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to the pregnancy stage and without recognition of the other interests involved, is violative of the due process clause of the 14th Amendment. So that says the privacy right, which the Supreme Court is locating as in the 14th Amendment, as including the penumbra of the Bill of Rights, outweighs the state's interest in preserving health. And in particular, when you have a blanket statute that says we will criminalize abortion unless necessary for the health of the mother.

And instead, and I'm not going to read the specific decision, it's full of horrible legalese and it's not nearly as pithy as what I just read. So if you thought that was not pithy, you would love the next part. But essentially, what the Roe court did was they said, we're going to break this down into a trimester approach. OK, because what we have here is we have two important issues, two important interests that are both protected by the Constitution, the state's interest in preserving future life, the life and health of the fetus, and the woman's right to privacy.

0:17:10 Thomas: Thank God for the penumbra. Yeah.

0:17:58 Andrew: We agree that in general, the right to privacy trumps the right, the state's interest in the fetus. But that doesn't mean that that that no abortion legislation could be valid. Right. It just means that in generally, we think the privacy right is stronger. And so the Roe Court came up with a trimester approach and they said and some of this was informed by history. Some of it, quite frankly, is a little bit arbitrary. And we'll talk about that. They basically said in the first trimester, the first third of the pregnancy, the woman's interest is paramount and the state may not restrict or prohibit the right to an abortion during the first trimester. In the second trimester months, four, five and six. I know before anyone writes in and says, you know, it's X number of weeks and it's not exactly that. In the middle trimester, the interest to the state as the fetus approaches viability grows stronger. So in the middle trimester states can restrict but not prohibit the right to an abortion. And in the third trimester states can outright prohibit.

0:18:27 Thomas: Yeah, yeah.

0:19:15 Andrew: We are now, we've reached the point of it's 28 weeks in the Roe v. Wade Court of fetal viability. There's a strong tradition at that point that the fetus begins to acquire some of the rights of personhood. And at that moment, those fetal personhood rights outweigh the liberty interests. And if a state wants to, they can restrict or even prohibit third trimester abortions. And that's what the court says. It's a landmark decision. It strikes down 30 different laws across the United States.

0:19:49 Andrew: No, that's an excellent question. And it's something that is largely forgotten. This is a seven to two decision. Yes.

0:19:48 Thomas: Was it 5-4? I'm

0:19:57 Andrew: Seven to two.

0:19:55 Thomas: 7-2. That's pretty good.

0:19:58 Andrew: And yeah, and it is not particularly, Right. It is, you know, when you think about a sort of landmark decision, one of the additional indicia that tell us that the court did not think of Roe v. Wade as a radical liberal departure from the law is it's are the justices that voted in favor of it. So, for example, you know, you had the opinion was written by Justice Harry Blackmun, who was a very liberal judge, Supreme Court Justice William Brennan signed on to the decision. He's not only liberal, but considered the most activist liberal judge in the court's history, which I think is a fair designation. He's a brilliant mind, but somebody who, you know, used the Supreme Court as a vehicle during the Warren court to really advance substantive rights.

0:20:51 Andrew: But also signing on to the decision was Lewis Powell, for example, who was a conservative Nixon appointee and Potter Stewart, the only Supreme Court justice that most people can name a line of their decisions. Do you know that one?

0:21:07 Thomas: What? No.

0:21:08 Andrew: Yeah. So Potter Stewart was the Supreme Court Justice who very famously said when asked to define pornography, I can't define it, but I know it when I see it.

0:21:14 Thomas: Oh. Well, Well, yeah, I referenced that way back when, and I didn't know who it was.

0:21:16 Andrew: Right. Yeah. Yeah. That's Potter Stewart, who was concerned. And I don't know. He was concerned in his later years, of which 1973 was was one of them, that that that would wind up being his epitaph. And I have to admit, I have not checked, you know, Arlington National Cemetery to see if it says, you know, pornography. I know it when I see it. Again, Potter Stewart, you might think from the kind of justice who says pornography, I can't define it, but I know when I say it, had a reputation as a moderate, you know, center right justice. And so, you know, you had you had a bunch of liberals, but you also had, fairly mainstream to conservative judges who signed on to this opinion and, and Chief Justice Warren Burger, who had had a mix, but but again, I think has an overall conservative judicial philosophy and temperament. So all of that are, you know, sort of continues to describe how the court viewed this case. The public viewed it very, very differently, as you may know. And it was widely perceived as a kind of judicial activism in that. And remember,

0:21:20 Thomas: Okay. Okay, oh no. His gravestone? Yeah. But

0:22:32 Andrew: You know, I have previously defined judicial activism, and I think most lawyers would agree with this definition as departing from precedent and you know, reshaping the law in a way that would defy expectations from looking at the court's history. But a lot of people, that's

0:22:48 Thomas: There wasn't really too much of a history with this, right?

0:22:52 Andrew: Exactly right. There weren't previous cases on abortion. So in my view, this is less of a, quote, activist decision. But in fairness to conservative activists, there certainly is a charge that says it's judicial activism when you strike down a whole lot of state laws. Right. And and and I can again, I want to be I don't agree with this formulation, but the most fair interpretation of that argument is is, again, the expectations one, right, which is to say, look, you know, We've had this statute in Texas for a dozen years, and everybody knows it's the law, and not only are you striking down this law, but you're striking it down in 29 other states, and doesn't that show that you're sort of radically reshaping the landscape?

0:22:52 Thomas: Yeah, right.

0:23:40 Andrew: And that, you know, those kinds of arguments were made after the court's Obergefell decision, you know, which found that marriage equality was protected under the 14th Amendment for the same reason, right? It was less so that there were previous court cases on gay marriage and more so that there were state laws that prohibited. And this Idea that the court is going to come in and reshape state laws, I think, strikes some people as as activists. Now, the counter argument to that is that's exactly what you would expect the Supreme Court to do. Right. Like the entire purpose of the Supreme Court is to interpret constitutional provisions as they apply to the states and provide a check on majoritarian impulses. And it.

0:24:02 Thomas: Yeah. Yeah, So you'd have a case more for judicial activism if there had been a prior Supreme Court case that these laws and then all of a sudden there's another one that rejects it, it would be a little more activist. But I think I get what you're saying, which even though it goes against all these state laws, so in some ways it is going against the expectations and it is making it harder to, you know, to plan what's going to be legal versus illegal. It was was the first, you Supreme Court case for abortion, right?

0:24:57 Andrew: Exactly. And and I would argue the rationale that's set forth is consistent with the kinds of cases that preceded it. Right. So in other Words, it should not be a surprise when a court says you have the right to purchase contraception and states can't outlaw married couples from buying contraceptive devices. And then the court says also states can't prohibit interracial marriage. It is not a surprise that that same court a couple of years after that would say that we also recognize that that same liberty extends to the right to have an abortion.

0:25:07 Thomas: Yeah.

0:25:35 Thomas: So, I've got a bunch of questions for you. And at this point, I'm thinking we may just do a long episode. But because I actually, I have thought of a number of things that I kind of would love to talk about. First off, it's interesting to me, I would say as, again, I get, I don't know, I haven't, I definitely intentional benefit of approaching this as someone who knows nothing about this. So that's totally intentional. You know, I never, I knew someday I would do this podcast with Andrew, so I didn't want to learn anything about the law or this case or anything.

So I could really approach it with fresh ears. I would think, I would have thought that like this decision would involve a bunch of science and like philosophy and like, hmm, is the fetus a person? And like, Like, are we going to get some sort of like expert testimony or however that would work in the Supreme Court? I don't really know. That's actually another question. Do they ever, do they have people give them testimony or do they Have people, you if they need some sort Of scientific perspective, would that ever happen or is

0:25:41 Andrew: Okay.

0:26:32 Andrew: So, so let's answer that question first and then go back to your larger point. All of the receiving of evidence is done at the trial court level. Okay? And the trial court establishes the record at the, at an appellate court level, either at the circuit courts of appeal that we've talked about, the first circuit, second, et cetera, or at the the Supreme Court if they take your case. You are stuck arguing the record from the trial court below.

0:26:36 Thomas: It all? Sure. Right. Right. So you have to get everything in there. Otherwise, you're out of luck.

0:27:01 Andrew: And yeah, now you can, there are, you know, there is a clearly erroneous standard, right? Which is exactly what it sounds like. If you want to argue that the trial Court made a clear error in concluding a particular fact, you can make that argument. But it is, it is a massively uphill argument, as you might imagine from the description of that. But you cannot introduce, you you know, new scientific testimony. We've talked about the word remand before.

0:27:16 Thomas: Okay. Right. Mm-hmm.

0:27:30 Andrew: But one of the things that will often happen is, you know—so in this case, you might have had a situation where at the trial court level, the plaintiff—this did not happen, but I just want to give it as a counterfactual that would illustrate your point. Suppose the plaintiffs wanted to introduce scientific evidence—well, I guess it would be the defendants—but they wanted to introduce scientific evidence as to fetal development. And the judge says, you know what, I'm not going to allow that.

That's not, this is not about that. This is about the law. I don't really care. So I'm Not going to Allow that testimony in and, and then on appeal, you would argue, hey, we need to have this, this testimony. And you would preview it, right? You wouldn't just say we need To have this testimony, you Would say, we are going to have an expert and the expert will say that at 20 weeks, you know, the fetus has a fully developed cerebral cortex and is capable of complex thought and planning and all of that. And what the Supreme Court would do if they agreed with you is they would say, "We are going to remand this case back to the district court level with instructions to admit

0:28:23 Thomas: Right. Right. To

0:28:35 Andrew: The evidence and to have further proceedings there too."

0:28:35 Thomas: Include that evidence? Yeah. Makes sense.

0:28:39 Andrew: So that's procedurally how that happens.

0:28:39 Thomas: Okay. But that's what's so interesting about this, is that this whole Supreme Court decision, it doesn't really... I mean, in some ways, it's not maybe where the interesting stuff might have happened. Because almost feels a little, in some ways, a little weird that they were able to just say, well, we don't, you know, there hasn't been a history of this kind. It's not widely established that a fetus is a person. Therefore, we can just, you treat that as one view among many and then default to what? Like the fetus. Because if quick. If there was consistent history of that view, like, let's say Christians or whoever, you predominant faith in the country when it was formed, the predominant view was a fetus is a person. I don't know why they would have been thinking in those terms back then, but whatever, um, would that have changed the entire thing?

0:29:32 Thomas: I mean, would it have been, oh, okay, the fetus is a person, so therefore, um, the right to privacy extends to this fetus, and it also has a certain right to bodily autonomy and privacy, and therefore, you they would have to essentially do that hard philosophical work of figuring out how you balance those rights, but it sounds like that never really happened.

0:29:52 Andrew: Well, remember that in, I think it was in OA 9, it's section 9 of the Roe v. Wade decision, that the court does look through the history and philosophical history of the argument as to whether a fetus is a person within the meaning of the 14th Amendment. But you are correct in the phrasing of your question that because that's mixed, right, they conclude that we cannot say as a matter of constitutional law that a fetus is a person under the 14th Amendment. Right.

0:30:25 Andrew: So so there is but there is some philosophical analysis that that takes place.

0:30:25 Thomas: Yeah, and I wonder what the barrier, what would the threshold have to have been, I wonder? Would they have had to say, you know, and how did they quantify that? Like, did they know? I mean, I don't know. That seems a little weird to me. I almost feel like we got away with something there, because like, what Would the percentage have to If it was 51% of people think this, then we would, you know, like, how would you even decide that? It seems, it seems like the default just wanted to be, and maybe, you know, ignoring whether or not it's right, I'm just saying from an argument perspective, the default was that the fetus is not a person. Because it was that

0:30:33 Andrew: Yeah. Right, well, yeah,

0:31:05 Thomas: There are some Some people think it is, but that doesn't matter because, well,

0:31:08 Andrew: I Think it, I think, I think the better way to put it would be, look, we know, we have an unambiguous line of decisions that tells us that bodily autonomy and the decision whether to go forward with a pregnancy and whether to terminate it is a fundamental liberty interest of the individual that is contemplated and protected by the ordered scheme of liberty that's implicit in the Bill of Rights. So we know that's a strong right. And what we need to figure out is how strong is the compelling state interest on the other side? And what the road?

0:31:44 Thomas: But hold on, already there though, we've decided rights only apply to the mother. I guess what I'm saying is, I guess I might understand why pro-lifers would be kind of pissed about this and not just for it not going their way, but also, you know, for how the decision, because like, if you're someone who approaches it, now let's, again, for the the sake of argument. If you were someone who approaches it as this fetus is a person and it has rights, even just saying, well, the right to privacy, yeah, that applies to both the fetus and the mother by that perspective, you know? So how, I don't, it doesn't seem like that was ever addressed.

0:31:44 Andrew: Yeah, right. Yeah. Yeah, yeah.

0:32:22 Andrew: No, no, it's so two things. Number one, agree with you. Right. And I think that's, you know, what, where we wanted to be in terms of this discussion is talk about the the reasonable reactions to having a landmark decision like this. Right? Right. So, so I agree with you. And I think that, you know, in terms of we already, we also talked about, you know, expectations. You have a majority of states have said we're going to prohibit this this this kind of behavior.

So all of that does indeed inform the other side. And and I agree with your conclusion, with respect to whether the court says the fetus doesn't have any rights. I don't know that I would agree with that. What I would say is that when rights are in conflict, you have to make a decision. You have to say, Right, right, right A and right B cannot exist simultaneously. So which interest is stronger? And what the court says is, I'm going to go to, this is the end of Section 11. This is after they've set up the trimester approach. And the Supreme Court says, "This holding we feel is consistent with the relative weights of the respective interests involved with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.

This decision leaves the state free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to recognize state interests. This decision vindicates the right of the physician to administer medical treatment according to his professional judgment, up to the point where important state interests provide compelling justifications for intervention."

0:33:12 Thomas: Sure. Yeah.

0:34:02 Andrew: Up to those points, the abortion decision in all its aspects is inherently and primarily a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intraprofessional, are available. So,

0:34:21 Thomas: So I guess I would need you, can you you define more, not, I almost said better, but I don't think that's it. Could you define more when, I think maybe what I was latching onto that may be incorrect, so I want you to correct me if I'm wrong, is whenever it talked about the sort of the battle of the rights going on, it was referred to as the right to privacy, etc., etc., versus the state's interest in the life. Not as the Right to Privacy versus the fetus, you know, the right of the fetus or the right of the unborn, you know? So, that's what I meant when I said it didn't really talk about it from that perspective. It talked about it from the state's interest in the fetUS.

0:34:33 Andrew: Right. Yes, yes, yes. That is correct. And that is decided on the lack of, what the court says, the wide divergence of thinking on this most sensitive and difficult question. Right? Right. And they go through philosophically the notion that life does not begin until live birth, that moving to the idea of quickening or viability. And then they do recognize the Catholic Church, which, again, as of 1973, this was primarily a Catholic position that life began at conception. But but but but you're right that they conclude.

0:35:17 Thomas: Yeah. Okay. So, they did go through it a little more than I gave them credit for. Okay, well,

0:35:43 Andrew: Right. But, but, but in fairness, I mean, I don't want to undercut your argument. That is two pages of a, you 70 page opinion, right? It is not, is not a, lengthy discussion.

0:35:54 Thomas: Is it double-spaced? No, I'm just kidding. Yeah,

0:35:59 Andrew: It just says,

0:35:59 Thomas: It's just so interesting and it totally makes sense how you've explained it, but it's It's funny that I guess I always would have thought in the back of my mind, because I never thought too carefully about it, that it would have been a more philosophical debate when really it's as you've lined it up. It's, well, here's the precedent. Here's what these cases have suggested. There are no violinists involved in the decision. So that'll philosophy reference that most people probably will get, but maybe, sorry if you're confused by that reference. But anyway, interesting. Okay. Okay.

0:36:20 Andrew: Right, right. Yeah. Yeah. And so, you know, that really, that takes us to the end of Roe v. Wade. Um. And I think, what I want to do is, um, tease a future episode, whether it's 0812 or not, I think we haven't decided. But I want, I want play a little game with you.

0:36:46 Thomas: Oh, I love it. I, this is where I get to display how bad I am at whatever you're testing me on.

0:36:46 Andrew: Um.... Right. Yeah, no, it's... But... But you almost always... You almost always wind up getting it it right. So, so OK, so here we go. It's 1973. And like I said, Roe v. Wade is a seven to two decision on the the seven justice majority are a mix of liberal judges and conservatives and centrists forming the two justice minority are William Rehnquist, a Nixon appointee who would would later become chief justice under Ronald Reagan, and former NFL player Byron "Whizzer" White, a centrist appointee by JFK, but a Catholic. I believe a Catholic, I don't want to... And so Rehnquist and White dissent. Now I want you to think about... So the abortion decision, Roe v. Wade, 1973, strikes down a whole bunch of state laws, ignites massive public political debate about the scope of the court and energizes and galvanizes the pro-life movement to try and push the boundaries of the Roe versus. Wade decision. Right. So remember, Roe v. Wade says we're going to take a trimester approach, you

0:36:54 Thomas: Oh. Okay. Yeah. Yeah, so

0:38:00 Andrew: Know, nothing in the first.

0:38:01 Thomas: Were there a lot of third trimester laws, uh, enacted?

0:38:03 Andrew: Right. But but so and then also you're you know you have laws that seem to violate Roe V. Wade, the pushback that say, You know, what about it? Okay, we've done this. We're prohibiting at 28 weeks. What if we prohibit, you know, after viability, right? Because remember, they come up with the trimester approach based in part on the philosophical notion that when the fetus becomes viable is when it starts to gain rights. Well, from 1973 to 1992, for example, which I'm not just picking arbitrarily, we'll see why in a minute, medical profession advances by 20 years, right, medical technology moves forward, And we're saving premature infants at an earlier and earlier stage.

The notion of viability gets pushed back a little bit. So what about a law that says no post viability abortions? So that seems to violate that third trimester prong of Roe, but it also seems to be consistent with its regulations, right? What about, this is the basis for an actual case, what about a law that doesn't restrict abortion at all in terms of the procedure, but seems to burden abortion? And this law is a Pennsylvania law that says a child under the age of 18, a girl under under the age of 18, has to have parental consent or,

0:38:10 Thomas: Oh, yeah. Oh yeah.

0:39:25 Andrew: And there was a provision in there for, you know, presumably for girls who were raped or who otherwise would be unable to get parental consent, to get consent from a judge, right? And then a companion part, there were two laws passed together that said a married woman had to get permission from her spouse, okay? And And could easily make the political arguments one way or the other, and obviously both sides did. But it's kind of clever in terms of looking at the judicial arguments because neither of those seem to be, right, criminalization as was discussed in Roe, right?

0:39:51 Thomas: Right. Yeah right.

0:40:05 Andrew: And so does a law that says a woman has to get consent from a third party, be it a parent or a spouse, does that law violate the essential holding of Roe v. Wade? Is it a restriction? Is it first trimester restriction?

0:40:22 Thomas: Is this, is this my quiz?

0:40:22 Andrew: Right. So this is your quiz. Well, and what I want to add on top of this framework is I want to add the political realities of the Supreme Court. Right. Because one of the things that, you know, has been an ongoing theme at opening arguments is that the Supreme Court justices are people. And, you know. As we saw.

0:40:24 Thomas: Okay.

0:40:42 Thomas: And they have their conclusions they want to reach, I'm guessing.

0:40:44 Andrew: Yeah. And as we saw in Bush v. Gore, Right. It is not it is no coincidence that the five Republican appointees voted to make George W. Bush president and the four Democratic appointees voted to make Al Gore president. Right. Like that is would be I mean, it would be crazy to pretend that that none of them knew that that was the implication of the decision that, you know, the way that they were voting. Um, so let me tell you a little bit about what the Supreme Court has done from 1973 to 1992, um, which will probably not be much of a surprise when you think that, uh, in that time span, we've had, we have one, one term democratic president in Jimmy Carter. And we have, you know, two, we have Gerald Ford, two terms of Ronald Reagan and one term of George H.W. Bush. So the judiciary has gotten 20 years more conservative.

0:40:52 Thomas: Yeah. Mm-hmm. Yeah, and

0:41:38 Andrew: And here's how the lineup shakes out. Our dissenters from Roe v. Wade, Rehnquist and White, are still on the court. Rehnqist, in fact, is now chief justice.

0:41:49 Thomas: You're talking 92.

0:41:50 Andrew: 1992. Rehnquist is now Chief Justice. Byron Whizzer White, still on the court. He's like 105 at this point. Um, uh, still on the court is Harry Blackman, the author of the Roe decision. He's also very, very old. Everybody else on the Court, uh. Has left the Court. Okay. And they have been replaced by the following individuals. Antonin Scalia. Clarence, Clarence Thomas. Right. So we know those two.

0:41:51 Thomas: Okay. Oh, great. Yeah, yeah.

0:42:23 Andrew: Right? And Day O'Connor, Ronald Reagan's first Supreme Court appointee, the first woman appointed to the Supreme Court. Anthony Kennedy, another Reagan appointee who was appointed in 1987. And David Souter, who was appointed by Republican President George H.W. Bush in 1991. So Souter and Thomas are Bush appointees. O'Connor, Kennedy, Scalia are Reagan appointees, Rehnquist and White still on the court. That's seven. That then also gives you, that's seven Republican appointees or known row opponents. And the court's liberal wing, such as it is, is comprised of Harry Blackmun and John Paul Stevens, both of whom are 80 plus years old at this point, and are kind of the two sole liberal justices on the Supreme Court. So I want you to imagine that you are a pro-life activist, okay? And you are defending the Pennsylvania statutes that have been challenged here, which me set up the procedural history. There are other laws that are involved, but they're not really important for our story.

0:43:43 Thomas: So, we're just doing OA12 now, is what you're saying. All

0:43:48 Andrew: No, no, we're literally, why don't we pass then? You're absolutely right. Why don't we hold off for the future? But let me just ask you that one political question. Are you, as a pro-life advocate, are you ready to roll the dice? You've got two courses You can make a narrow argument to the Supreme Court that says, I want to defend this Pennsylvania statute requiring informed consent before a woman has an abortion. Or you can argue to the supreme court, Roe v. Wade was wrongly decided. Let's strike it down. This was a of an opinion based on nothing. It's judicial activism. And I'm looking at how the court is comprised. How would you come down? What would you decide? It's 1992.

0:43:57 Thomas: Right,

0:44:36 Andrew: What wouldyou do? Yep.

0:44:36 Thomas: Well, you painted a bleak picture if you're a liberal, so, I mean, I would assume that I would go all all the way. I mean, that sounds like a hell of a conservative Supreme Court, would have swung for the fences, but I thought you were going to ask me about that law itself, because that is interesting to talk about, but we'll talk about that on

0:44:54 Andrew: We'll do that in a future episode. Swing for the Fences is exactly what Counsel in this case is called Planned Parenthood versus Casey. It's exactly what Council did in that case. And I think it will be a lot of fun to go through that decision and what happened. But we're going to have to do it in a feature episode. Episode.

0:45:13 Thomas: Yeah,

0:45:16 Clip: The law breaking down

0:45:22 Thomas: Breaking down the law. That maybe you'll have to tackle this one kind of quickly. We'll see. How do you amend the Constitution?

0:45:29 Andrew: So this was submitted as a user question. Um. Most people know that the... The Bill of Rights was passed four years after the actual Constitution. And in fact, in an early episode of Atheistically Speaking, I talked about a little bit in the Federalist Papers how Alexander Hamilton argued that we didn't need to have a Bill of Rights and that if, you know, if the Constitution didn't specify that Congress had any power to restrict the press, why should we spell out you have freedom of the press? Out, like, of course you have freedom of the press, it doesn't say Congress has the power, um, yeah, and Hamilton lost that argument, uh, which is kind of fortunate, uh, and so instead, uh, we have, um, 27 amendments to the Constitution that have been passed over time.

Um, the, the reason I think this is a good question is because it's worth emphasizing how difficult this is, because, because people all the time, particularly interest groups like right now, think at times, and we've been hard on Bernie Sanders, but I think, at times, both Bernie Sanders and Hillary Clinton have said, "I will support a constitutional amendment to overturn Citizens United." Because as we've seen, you know, once the Supreme Court has said, you know, "We interpret the Constitution X way," right, that's, you know, that's the final word, there's nothing you can do other than amend the Constitution and tell them that they're wrong.

0:46:01 Thomas: Yeah. I remember that

0:46:51 Andrew: And so it is a nice, pleasing line to say in a crowd, but it's worth describing how difficult it is to amend the constitution. And, and so that begins in Congress. Unlike a regular bill, an amendment to the constitution requires approval by by two thirds of both the house and the Senate, right? So 67 votes in the Senate and whatever two thirds or 435 is in the house, but a super majority, uh, that, we have not seen one party control 67 seats in the senate and that, you know, 300 or so votes in a house, uh in a, in a long time, right. I think the last time, uh was 1964 when the Democrats held that, that that that large a majority.

0:47:41 Andrew: Um, so first it's got to get out of Congress and it's got to Get out of a super majority of Congress. And, you know, again, if you think about, uh, the past, the last six years where, you know, basic funding bills can't get out of Congress, right? The idea that you would get a constitutional amendment, right?

0:47:53 Thomas: The government is barely operating at this

0:47:57 Andrew: Yeah.

0:47:58 Thomas: Point. So, yeah. Yeah.

0:47:59 Andrew: Once it clears Congress, uh, it then goes to the states and, uh, and every state legislature will then vote on the passage of the amendment, and it does not. And they can do so on their own time. So, for example, there is a constitutional amendment about pay raises for elected officials that's been pending for 200 years. Right. Right. You know, Syria, right. There's no constitutional requirement that says, "No, you got to take this up tomorrow."

0:48:28 Thomas: Oh, man. Do you think they messed up there? Do you think they should have made a time limit there?

0:48:29 Andrew: Yeah. Right. Yeah, maybe. But I mean, you know, again, like our constitution works and.

0:48:38 Thomas: It's just making it so you don't want you don't want easy changes to the Constitution.

0:48:42 Andrew: Yeah. And it has to pass three quarters of the states, right, which is to say 38 states. So if there are 13 holdouts. Right. And, you know, we did this for for the Bush v. Gore episodes. It's pretty easy to pick the 13 most liberal states or the 13most conservative states. And if you can pick 13 states, it's easier to pickthe 13 most conservative states, I think, Idaho, Wyoming, Kansas, Oklahoma. You know, it's not hard to get to 13 and 13 states can block any amendment to the Constitution, you know, in perpetuity

0:48:43 Thomas: Yeah. Yeah, yeah. I was gonna say, that's that makes

0:49:18 Andrew: Going forward.

0:49:18 Thomas: It really hard for any sort of liberal amendment just based on the way the demographics work, huh?

0:49:19 Andrew: Yeah. Yeah, yeah, that's exactly right. And that's what I would say. I thought of I saw this question come up on our page. I was thinking of the Clinton and and Bernie Sanders. We're going to get a constitutional amendment overturning Citizens United. And to me, it's one of the few sort of, and I promise you a unicorn moments that I've seen from the Clinton campaign that just, no, you're not. You're not going to getting a constitutional amendment overturning Citizens United, like, the more, you know, responsible and nuanced position would be, I'm going to appoint judges to the Supreme Court, uh, who are going to overturn Citizens United, um, but uh but

0:49:50 Thomas: Yeah.

0:50:01 Thomas: Yeah. Or I'm gonna just get a lot of signatures about it. And then maybe that would work.

0:50:05 Andrew: You're not going to amend the Constitution because of the 38 state legislature issue I'm

0:50:07 Thomas: Yeah. All right. Ignoramus question. What was what was the last was the most recent amendment? When did this last happen?

0:50:15 Andrew: Is actually the amendment to which I was alluding to earlier. So the 27th Amendment prohibits pay raise to members of Congress from taking effect until the next Congress comes into office. Right. So you can't vote yourself a pay rise in that single session. And that's the amendment that was submitted along with the Bill of Rights. Like, I'm not kidding. In 1789. Right.

0:50:31 Thomas: Yeah. Wow.

0:50:42 Andrew: And it it went out to the states and was completely just

0:50:46 Thomas: And they took their time, thought about it, considered it carefully.

0:50:48 Andrew: That they they they did they did

0:50:51 Thomas: I like to picture that they just vigorously debated it for 200 years, like father passed it down to son. Just, we can't decide. It is just so, such a hard decision.

0:50:51 Andrew: Nothing until. Until. Yeah, yeah. Um, And uh, and it was picked back up again uh in the 1980s, uh, and the 38th state uh ratified it in 1992, I believe that was Texas. Um, And and so then it became uh the 27th Amendment, it is now, uh, you know, it's it's a weird amendment, right? Like it's like the, it's more akin to the the Third Amendment, you know, that prohibits the quartering of soldiers, right? Like there's not going to be a whole lot of jurisprudence about, you Know, well, what do we mean by salary? Like, no, no, we know exactly what we mean By salary, like, Congress can't vote itself a pay raise in the same session. But that that amendment actually was pending for over 200 years.

0:51:13 Thomas: Huh. Yeah. Yeah, huh.

0:51:42 Thomas: That's so funny.

0:51:43 Andrew: And, and the the system works. So great question. And that's your answer.

0:51:43 Thomas: Cool trivia there. All right. Well, 200 years of deliberation. I still like to picture it as just fiercely just families, you know, just 200 years of family. Just what do we do about it? I think that's really what happened. And then finally, they decided. But

0:52:02 Andrew: I suspect that in the 1790s, right, in the 18th century, we would not have anticipated that sitting congressmen and women would have, well, they wouldn't have anticipated sitting congresswomen, that's for sure. But that sitting members of Congress would have a 99.7 percent re-election rate. So, you know, it's it's I mean, it seems like a nice and noble proposition. But by the time you get to Congress voting for a pay raise to take effect two years from now, you probably feel pretty good that you're going to be around to collect on it.

0:52:02 Thomas: Yeah, yeah. Hmm.

0:52:34 Thomas: Well. Plus, maybe did they not anticipate that they would it all make their livings from special interest groups anyway. So it's doesn't, what difference does it make? Yeah.

0:52:42 Andrew: Yeah, no. Yeah. No, I mean the the initial idea, you know, was really to have a a part time, you know, citizen public servant and that, you know, you would you would trudge to Washington, you know, sit in the legislature for a couple of months, pass some laws and then go back into the real world and, you know, be a farmer and, you know. Do do some actual good for the country, you know, and there and there are a lot of state legislatures and a lot of local legislatures that are still based on that on that principle. I bet that you're well, I don't know. You live in Sacramento, so I don't know about about you. But, you know, a lot of local legislatures are part time gigs and the people who do that sort of do it in their spare time and they collect a very modest salary and and they they have a real job.

0:53:07 Thomas: Yeah.

0:53:30 Thomas: Well, there you have it folks. Uh, thanks for answering that question. That's a really interesting procedure. And I liked that there was a 200 year amendment more, more accurately. It's people just forgot, like, where did I put that amendment we were going to do? And then 200 years later, someone found it in their jeans. Oh oh shoot so thank our patrons we got a lot of new patrons to thank over on patreon.com/law thank you guys so much as a token of our gratitude here was an hour long episode for you now let's thank our patrons oh

0:53:57 Andrew: Sure. Thanks to Chronos on, to David Cling, to LPD, Happy Fred, uh, Hobo Batman who increased his pledge, he's been a long-standing supporter, uh, Matthew R, Nick Stainthorpe, Mike Hansen, Jeremy A, Christian. Thank you very much. Yeah.

0:54:15 Thomas: Jason Baldus Cam, thank you, Tim Schumacher, thank you, Joe Arnold, Jeremy, Fred Johnson, Shelly Younger, Brad McCloskey, Suzanna, oh, uh-oh, oh man, this is a tough one, Suzannah Podgelanen, I don't know shutter puppy shutter puppy well that's interesting britney weaver kenny wyland bill jones brady o'brien jim hunter roger pope james hepler and geeker 41 thank you guys so very kindly for your amazing support and pledges

0:54:31 Andrew: But And I Just want to say, if Jim Hunter is Jim Hunter, the voice, the radio voice of the Orioles, radio and television voice of the Oriole's out here, I especially appreciate that. Let me know. Probably probably just a common name, but but I laughed when it came in because he's our, he's our local baseball announcer out here. And I've chatted with him outside the stadium on a couple of occasions, but that'd be great. I love the idea that he is right now listening to Opening Arguments 11 while preparing to get ready for the game.

0:55:09 Thomas: Let's hope it's him I'm sure he'll talk about it on the air too give us some good

0:55:19 Andrew: Please do. Give us a shout out. We gave you a shoutout. Come on, Jim. Cut us a break.

0:55:23 Thomas: Yeah. Now is the time to thank our Hall of Famers. And they are, of course, Dan Irizarry, Eli Bosnick, whoever the hell that is, Dave Nichols of the Positively Doubtful Podcast, Dale Anonymous, Steve Sigmund, Jim Grove, Desecrator, Amanda Lipnack, Patrick Fussell, and Hunter Ash and Michael, Kaylee Reiser and Jeff S. Thank, and the Inciting Incident podcast. Thank you so much for being our top, top, top patrons.

0:55:52 Andrew: Yep. And before we close, I want to give a plug. Um, I, uh, I did a couple of, uh, a couple more podcasts, uh, promoting Opening Arguments. You've probably heard, uh, Thomas and I on, uh, Cognitive Dissonance. Um, that was a fantastic episode. We had a lot of Fun. Um, I was on, uh, Scathing Atheist number 168, uh, I was on episode 57 and 58 of the Inciting Incident podcast. That was a live recording. And I was most recently on the Country Fried Freethought podcast. So check all of those out. If you've enjoyed what we're doing here, you probably would enjoy us on those other shows.

0:56:08 Thomas: Yeah. Really? Fun.

0:56:35 Thomas: Alright, yeah, thanks to everyone who's helped promote the show, and we're getting out of here. Looking forward to the cliffhanger we, we left off with, we'll have to give you that in episode 12.

0:56:54 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.