OA276: Did Kansas Really Show Us The Way Forward on Abortion Rights?

Transcript

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

[0:00:03] So I hold myself in contempt if you try to pull me up here to court with that attorney. [0:00:19] I'll ask the questions here, carjacker Willie. Objection! I'm going to allow it. It characterizes the defendant as a carjacker. [0:00:30] You didn't kill Thompson, but you did, Mr. Wells. Yes! Yes, I killed Ned Thompson! I killed him! I killed him! I killed him! I killed him! [0:00:45] You're out of order! You're out of order! The whole trial is out of order! They're out of order! [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast. [0:01:17] Hello and welcome to Opening Arguments. This is episode 276, and that means that you fine folks just

0:01:23 Thomas: Heard a new intro. How about that Matt Groening-related quote, as we say

[0:01:29] every time? I hope my clip from Soap made it into the intro, so we'll see, we'll see, maybe I get no special poll around here, you know, just like you don't help me with a bar exam, I don't help you find better quote.

0:01:43 Thomas: I don't tip the scales in favor of your, your quotes, uh, for the intro. Well, so we'll see, it's gonna earn it on its own merit, uh, Andrew takes the intro quotes exam. All right, but that's awesome, I love, uh, I love the intro quotes, they're always fun, um, but we get to have a nice depressing episode today, I think, is that right? No.

[0:02:02] This is a super positive, encouraging episode. I mean, not counting what I'm going to talk about in the, uh, in the pre-show, but, um, but no, this is a, this is a really really good episode, um, well, that's interesting, because in the words of the title, I'm seeing, overturning Roe v. Wade.

0:02:21 Thomas: So I'm, I can't wait to hear how this is a positive episode, but, uh, you'll forgive my worry,

[0:02:28] I guess. I will. Okay. All right. Well, it turns out, well, there you go. Uh, we're going to talk about that. We're going to dust off the old, are you a cop segment? That'll be fun. We'll talk about corporations being people. Uh, we're going to talk about this, uh, Kansas abortion decision, which apparently again, I'm going to hold Andrew to it. He says, this is a,

[0:02:47] not a, not a depressing episode. So I'm going to put myself self out there.

[0:02:54] Subject myself to this Roe v. Wade related episode that Andrew says isn't depressing in this day and age. I don't know how, but we'll see. And then we got another listener question. And I'm excited for that. Our listeners asked the best questions. They are always interesting. And this one is about the dissent from the same case we're going to discuss in the main segment.

[0:03:16] So that's our agenda. But you have a little pre-show segment here. What do you got Yeah,

0:03:23 Andrew: In episode 259, we broke down the Jeffrey Epstein plea deal in Florida and the fact that that case was reopened after eight years

[0:03:35] of litigation by plaintiffs. The federal government has been given an extension at this point in time that runs until this Friday, May the 10th. So you won't get it on this episode. You won't get it on Friday's episode because it will come out after we record. But you will hear news stories at the end of the week because that

[0:04:01] is the deadline for the government to submit how, what, what it thinks the remedy should be in the Epstein case for the prosecutor's violation of the Victims Rights Act with respect to Jeffrey Epstein's victims. Right.

[0:04:18] We pointed out that lots of media outlets were reporting this as Epstein's plea deal was going to be torn up. And and that's not the case that that certainly is among the possible items that it's a possible course. But I'm not sure that I would anticipate that that's what that's the position the government's going to come up with. Whatever they do, we will cover it on the show. We will update you.

[0:04:46] But you're going to see those stories at the end of the week. So we wanted to flag those for you now. All right. Well, I'll be curious

0:04:52 Thomas: To hear what goes on there. But let's get to our listener question in Are You a Cop format. If you

[0:04:58] ask a cop if he's a cop, he's, like, obligated to tell you. It's in the Constitution. Constitution of America?

[0:05:09] So you should go ahead and ask.

0:05:12 Thomas: Okay, so Ralph Dietrich asks, if the SCOTUS has decided that corporations are people, why can't Eddie Lampert be tried for murder or attempted murder if the fact pattern you followed on OA-273 is proven true? If you were a 95-year-old man who was ill and I killed you, regardless of your condition or realistic time left, I would still be a murderer. So yeah, I mean, corporations... Corporations aren't people in that sense, but I'm sure you'll put

[0:05:42] a lot more into that. So have at it. I absolutely I love the grammar of the question. And and I like the kind of cheeky idea of, hey, you know, you've been saying corporations are people. So if you've murdered Sears, why haven't you murdered a person? And

0:06:01 Andrew: Thomas, as you point out, that top line, I mean, we've actually discussed the history of the Supreme Court's rulings on this way back in OA 155. So I recommend pulling that one out of the archives where we talk about all of it. But the bottom line is there is no one Supreme Court decision that says corporations are people, my friend. What there is is in the

[0:06:32] law, corporations are a form of person, but different laws refer to different kinds of people and can refer to it in different ways, right? And so what corporations enjoy are a bundle of rights, some of which are associated with personhood, but

[0:06:58] not the entirety of those rights. And even, I mean, what has made the recent corporate decisions that you're likely thinking of, right, things like Citizens United or things like Trinity Lutheran, What has made those decisions pernicious is they are not grounded in the idea that like, oh, people have these rights and corporations are people. Therefore, corporations have these rights. But but rather cases. And I should I should throw in a hobby lobby. Right. In those cases, it's actually far worse than you were suggesting. Right. In in the Hobby Lobby versus Burwell decision, the holding of the case was not Hobby Lobby is a corporation. Corporations are people, therefore, because people have religious belief. The holding was, No, Hobby Lobby has sincerely held religious beliefs. That is novel, unprecedented, and I believe that a future Supreme Court, when I am a uh cyborg uh, will look back at this era in time and go, "Yeah, that was just invented out of whole cloth." Corporations obviously don't have religious beliefs. They're profit centers. Similarly, in Trinity Lutheran, the majority—we've mentioned this at some length—the majority

[0:08:23] says, you know, a church shouldn't have to choose between its, you know, religious beliefs and competing for government grants. And, and again, churches don't have rights under the First Amendment, right? It is the First Amendment is designed to protect religious believers. And, you know, despite the fact that I'm an atheist, you're an atheist, like I will go to the mat. I'm a member of the ACLU, uh, which has done more to defend religious liberties in this country than any other organization. I will

[0:08:54] go to to the mat to defend your individual religious liberties as a believer, um, where that decision goes off the rails is in describing rights to Trinity Lutheran as an entity. So, um, I like the question. I wanted to point out, uh, number one, we've done the full history. Number two, corporations aren't, you know, full people. They aren't coextensive with the rights that adult persons have, have, uh, that adult real persons have. Um, although, you know, we all stuck about on, uh, OA 236, for example, that corporations can be pardoned. I guess that's a little bit of a spoiler if you hadn't heard that, that 236. So they do enjoy some rights, but what the Supreme Court doing, what the Supreme Court is doing right now, is even more pernicious and even

[0:09:45] more dangerous than you think. So, uh, guess, guess I'm off to a good start with this being an upbeat episode. Yeah, I'll try to continue that. This is, this is very cute, but like, we have laws about fraud and stuff that

0:09:58 Thomas: Should cover that. Like, we don't, it doesn't need to be the murder of a corporation as a person. It should just be

[0:10:04] able to be fraud. And like, you can't engage in in fraud, right? I want to be able to voluntarily dissolve a corporation, right? I've done that before, like, without, without getting, uh, Kvorkian on the line. Is that like, do they? Well, I was thinking, you know, voluntarily dissolve a person. Like, I'm gonna need a lot more acid here. That works too. Okay, I was good. Yeah, either way works on both levels. Uh, yeah, so yeah, you have to call in. I was thinking like you have to call in

[0:10:35] uh, Kvorkian to. They come in the dead of night to sign the papers to get rid of the corporation, to dissolve the corporation that way because it's euthanasia and it's not allowed. All right. So great question. That was fun. But corporations are people in some senses, my

[0:10:54] friend, but not in every sense, basically. And are getting extra bonus special

0:11:00 Andrew: Rights from a Supreme Court that is taking rights away from everybody else. Sounds accurate.

[0:11:07] All right. Well, good start on your not depressing episode, Andrew. Corporations! In time with corporations! Of course they are. Everything corporations earn ultimately goes to people. Where do you think it goes? It goes in their pocket! Here we

0:11:30 Thomas: Go. Continue the streak of somehow making this not depressing by talking about

[0:11:36] this Kansas abortion decision.

0:11:38 Andrew: Okay. So let's get the depressing stuff out of the way first

[0:11:44] on abortion. And I want, I mean, we had some fun in the first segment. This is deadly serious, obviously. Um at as we are recording this episode the Alabama House has passed Bill 314.

[0:12:03] The Alabama Senate is likely to follow suit. And the Alabama governor is likely to sign the bill into law. This will criminalize

[0:12:16] abortion in the state of Alabama, except for as necessary to preserve the life of the mother. There is no exception for rape or incest. That's the way it's written. Um, it, it will make performing an abortion, uh, a class a felony in the state of Alabama with a maximum prison sentence of 99 years. Attempted abortion is defined as a class C felony up to 10 years in prison.

[0:12:49] I could go through the full definition. This bill passed 74 to three in the Alabama house. The reason it passed 74 to 3 is because the Democrats in the Alabama House of Representatives walked out in protest rather than vote on this blatantly, obviously unconstitutional bill. So what is going to happen? This bill is going to pass. It will be signed into law by the

[0:13:20] governor.

0:13:21 Andrew: Before it can take effect, it will immediately be the subject of a lawsuit. Suit. That lawsuit will result in the law being stayed because even in Alabama, a federal district court judge is going to be bound by the obvious precedent

[0:13:40] in Roe v. Wade and Planned Parenthood versus Casey. And so the judge may say, well, you know, if Roe v. Wade were overturned, this law is fine. But since it isn't, I have to follow precedent, clearly have a likelihood of success And it would clearly cause irreparable harm. So I'm going to enjoin the law that will then get appealed to the Fifth Circuit. Again, even though the Fifth Circuit is a conservative circuit, the Fifth Circuit absolutely is going to uphold that injunction. And from there, it will go to the Supreme Court. From there, that decision at the district court level in Alabama will be appealed to

[0:14:24] the 11th Circuit. The 11th Circuit is a conservative court, but again, unless it completely goes off the rails, and I don't think that will happen, the 11th Circuit is going to affirm the issuance of the injunction because it, too, is required to follow precedent. And

[0:14:43] then that will get appealed to the Supreme Court. And that is the goal here.

0:14:50 Andrew: The only reason to pass this law is as a vehicle to challenge a woman's right to choose before the Supreme Court. And when it gets to the Supreme

[0:15:03] Court, there are two options. Option number one is that Chief Justice John Roberts joins the Howler monkey contingent and overrules Roe v. Wade Planned Parenthood versus Casey.

[0:15:16] I think that that is a likely that there are a large sheaf of outcomes in which that can happen. The institutional thesis, in my view, may almost be worse.

[0:15:28] Right.

0:15:29 Andrew: I've said I think that this is where we're likely to go. I know that John Roberts would like to be known in history as, you know, the judge who, you know, despite his personal opposition, managed to forge a consensus and save Roe v. Wade. And what he will do is offer the Supreme Court's liberal wing, the sane justices on the Supreme Court, say, hey, look, if you let me write the majority opinion and you join with it, I'm going to write a version of Casey. I'm going to reaffirm that abortion is a right that is protected in the Constitution, but I'm going to further narrow it and further gut the already weak protections that exist

[0:16:19] in Casey. By the way, episodes 28 and 29, we go through what exactly happened in Planned Parenthood versus Casey. So so check those out.

[0:16:30] And to me, the really, really interesting things behind the scenes are going to be what the Supreme Court's left wing does in response to

[0:16:42] Those overtures. Right. Whether they are willing to sign on. So then you will either get a 5-4 opinion overturning Roe v. Wade or you will get a 5-4 decision the other way with probably four separate concurrences from

[0:17:01] The liberal justices issuing the whatever test is concocted by John Roberts. That is going to be sort of even more narrow than the undue burden test that Planned Parenthood v. Casey came up with. Either way, it's going to be a bad day for women in this country. And

[0:17:24] I've become more pessimistic that whatever that opinion looks like is going to be bad. So why is today A good day? Because this Kansas decision illustrates, I think, the way in which we need to work moving forward and the way in which we need to think about and start constructing our arguments. If you take as a proposition, as I do, that the Supreme Court may be lost for 30 years, right? If the Supreme Court is an instrument of regression, than your recourse, even if you live in a state like Kansas over the next 30 years, on questions of fundamental rights is going to be in the state Supreme Court. And that brings us to Hodes and Nauser versus Schmidt, a 6-1 opinion by the Kansas State Supreme Court ruling that abortion is a fundamental right protected in the Kansas Constitution And protected above and beyond independently of the protection found in the U.S. Constitution.

[0:18:40] This is a really, really good opinion. It really deserves our attention. And it is part of kind of the way forward. And so

[0:18:53] I want to talk about it. But there, is that sufficiently uplifting or did I not do a good enough job? Not at all. When does the uplifting part start? So here's the uplifting part. For a very, very long time. And by the way, this is another follow on to an episode we did over a year ago, OA 190, in which we talked about a similar

[0:19:24] Decision coming out of the Iowa Supreme Court. Again, you know, these are red flyover states, right? Iowa is less conservative than Kansas, but, you know, neither one is, you know, Bernie country. And in Iowa, the Supreme Court struck down a

[0:19:43] Law that would have required a three-day waiting period plus A medically unnecessary ultrasound plus a whole bunch of information, all of these kinds of barriers in the way of a woman seeking an abortion in Iowa. And what was interesting in that case was for the same reason that this is an interesting decision. The Iowa Supreme Court said, yes, if we were just analyzing this under Planned Parenthood versus Casey, if we were looking at this under the federal undue burden test, this law would probably pass muster. But the Iowa Constitution offers more protection than that. And so the law is unconstitutional under the Iowa Constitution. Um,

[0:20:26] And that's exactly what the Kansas, uh, Supreme Court said here, um, and that's why this is a really, really interesting decision. So, so what does it say? I I want you to, if you're, you know, reading this case, and this case is 190 pages long, um, but don't worry, the, uh, the majority opinion is only 86 pages long, so that's, uh, you know, you can

[0:20:51] You can curl up with that. I'm still on page three and and a half of the Mueller report. So take me a minute. So first, let me talk about why this is an important strategy, right? Because being Active and understanding what your state Supreme Court is doing is, when it comes to individual rights, really a no-risk strategy. We've talked about this. But a state Supreme Court cannot restrict your rights below the federal U.S. constitutional baseline. Right. So if you have constitutional reasons, for example, right, like the the Supreme Court of California couldn't decide like, hey, you know what, like we're going to get rid of the New York Times v. Sullivan standard. And, you know, we're going to grossly curtail the right to freedom of expression and allow people to sue you for libel, even if you're, you know, a newspaper printing stories about a public figure. Right. It wouldn't matter what the California state constitution says, because you'd have a federal First Amendment right that would trump that.

[0:22:01] Right. But but states can go beyond those bare minimum protections exactly like Iowa did and exactly what Kansas did here. And there is no doubt in my mind when you read this opinion, their efforts to divorce their ruling from the U.S. Constitution are 100% in mind of the fact that the U.S. Supreme Court is staffed with right-wing judicial activists. And this is really an important trend that I'm

[0:22:39] starting to notice, and that is lots of these courts that have very, very conservative justices on them nevertheless have what I would consider more traditional conservative

[0:22:52] justices, right? Right. That is justices who care about precedent, who, you know, have a philosophy of, you know, limited government and non-intervention and maybe are pro-business. But but but do not share the sort of wholesale regressive activism that is being championed by the Federalist Society right now. And the Federalist Society has been very, very successful in getting Donald Trump to pack

[0:23:23] the federal judiciary with mindless ideological drones. But it can't do that to the states. But state supreme court's not necessarily. Yeah. Well, that's nice. I mean, that's cool. I remember you talking about this,

0:23:35 Thomas: What did you say, it was about a year ago? Wow, time flies. Yep. That was really cool, like this one weird trick to protect abortion rights, at least by state. But I'm still worried. Do you think we are going to get to the point? I think I might ask you something similar last year. Are we going to get some BS conservative judicial activist decision that rephrases the right in terms of like the fetus's right to life? And so therefore the federal protection is actually more strict because it's, you know, that's giving the fetus more rights, and so therefore the state can't take away those rights, are we going to get something like that? Should I even, should I be quiet right now?

[0:24:16] So that they don't figure that out, to do that, because that, I'm already scared that they're going to do that. You look, that is a possibility if there is a fifth howler monkey judge that is added to the Supreme Court, um, so, uh, yes, but, uh, I will point out that every time, every effort, and, you know, sort of too much for a, for a sidebar here, any effort to vest a fetus with rights is going

0:24:47 Andrew: To be immediately problematic and unworkable and and I think Right. There's no way that John Roberts is going to sign on to, you know, a fetus has more rights than a 17 year old, for example. Right. And we've talked about how the Supreme Court's jurisprudence on children is is basically a like rights in trust thesis. Right. There are some specifically, you know, Tinker versus Des Moines students do not shed their rights at the schoolhouse gate. Right. Right. There are some specific rights where the courts have said, you kids have this kind of right. But but by and large. Right. The minute you give somebody a right, you are then saying that that person has a claim that they can make against the majority, even if the majority passes a law. And that law will have to survive strict scrutiny if it infringes upon a fundamental right. Right. Vesting fetuses with rights is going to be so profoundly unworkable

[0:25:49] That I think you would have a chance of, you know, even pulling out like, you know, a Neil Gorsuch, for example. Right. Like, yeah, it'll get Alito and it will get Thomas because, again, in the in the realm of of, you know, TV ugly. Right. Clarence Thomas is is not smart. And I don't think he cares. But I mean, that would be so profoundly unworkable

[0:26:19] That that that it would surprise me. But then again, I've been so coming to a Supreme Court decision near you is what I would say. OK, OK. I don't think so. I really, really don't think so. And that that would actually be I mean, put that on the whiteboard. It would be a really good topic for a future show as to why I think it's it's not likely.

[0:26:38] But you are right that whenever there is a way of characterizing something as a fundamental right that would then trump whatever protections exist at the state level, in that future show, I will talk about ways to make it clear. Right. You need a satanic temple style strategy there. Right. Like, OK, but if you come up with this, here's what's going to happen. And it needs to be so clear that even Neil Gorsuch is like, yeah, that that

[0:27:12] Kind of seems like that could be a problem. But back to—leave that aside.

0:27:18 Andrew: Let's assume we're just in the realm of evaluating. The question is not, is a fetus a person deserving constitutional rights? That's a separate question.

[0:27:30] The first question is, does a woman have a liberty, have an autonomy right to make reproductive health decisions concerning her own body? Right. And in the United States since 1972, the answer to that question has been yes. At the point at which the answer

[0:27:49] to that question under the U.S. Constitution becomes no, the question is, is there a basis for Support for that argument in your state constitution? And and here we go to something that this

[0:28:02] is—it's just crucial that you become informed at your state level in Terms of understanding the kinds of candidates that your governor intends to appoint to the bench

[0:28:14] and that we are informed in our discussions, right? Right. So one of the things that state Supreme Court justices have done for a long, long time is they Have, there's a phrase called in pari materia, and it's Latin. So I don't know exactly what

[0:28:33] it means.

0:28:35 Andrew: But but but what it means is in in legal terms, is it means interpreted read the same or substantially the same as. Right. And so what happens is

[0:28:48] oftentimes a state will have a version of the federal Bill of Rights in their state constitution, but it will be worded differently. Right.

[0:29:00] And the question will then come up before that state Supreme Court that says, hey, look, your First Amendment in the, you know, let's say this is not in Maryland. I'm just using as an example. Right. Let's say the Maryland Declaration of Rights says in Article one that, you know, all people enjoy the right to freedom of expression and the unlimited right to assemble for addressing the government. Right. Right. And that's written slightly different than the First Amendment. Does it mean do those differences mean anything? Right. Is it is it to be interpreted separately from the First Amendment or is it to be interpreted in pari materia? Right. And.

[0:29:51] For a long, long time, the trend at the state court level, particularly During the Warren Court, which was a liberal expansion of rights from from the Supreme Court, was to say, oh, yeah, well they're in pari materia, right, it's they're written a little bit differently, um, but but we're going to defer, whatever the Supreme Court says is the law on freedom of speech is also the law on

[0:30:17] The Maryland Declaration of Rights, for example. Does that make sense? Yeah, yeah, it makes sense. You don't

0:30:23 Thomas: Want to be trying to litigate like what the subtle tiny differences in wording would be, it's it's essentially just

[0:30:29] Nah, it's the same rights. Yeah, that's exactly right. So now

0:30:35 Andrew: That question was posed to the Kansas Supreme Court, and here are the two respective

[0:30:41] Provisions You know, the 14th Amendment to the Constitution, which says, in relevant, I know it by heart, 14th, a little earlier, uh, says no state can deprive any person of life, liberty, or property...without

[0:30:56] Due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Protection of the law. See, we said the same time. Yeah. You just did the Skype. You didn't hear it over Skype, we were saying. I was reciting it with you.

0:31:10 Thomas: Brian, Brian had added me in, so I said it all right.

[0:31:13] There you go.

0:31:15 Andrew: Section one of the Kansas Bill of Rights says all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness. So

[0:31:28] again think about the hypothetical that I just gave you right you might say boy Those seem like they might be in pari materia, right, like that they seem pretty close, right, they're both

[0:31:41] getting at equal protection of the law, right? And what the Kansas Supreme Court said was, no, those are not identical provisions. They should not be interpreted identically. And in fact, right, the key provision here is the fact that our Kansas Bill of Rights starts with equal and inalienable natural rights. And that phrase, natural rights, is not found in the 14th Amendment. And it means that we need to do an independent analysis of what natural rights are. And then there's super lengthy analysis of what natural

[0:32:25] rights are, where ultimately what the Kansas Supreme Court says is, And this is page 44, if you want the key takeaway, at the heart of a natural rights philosophy is the principle that individuals should be free to make choices about how to conduct their own lives, or in other words, to exercise personal autonomy. Few decisions impact our lives more than those about issues that affect one's physical health, family formation, and family life. We conclude that this right to personal autonomy is firmly embedded within Section 1's natural rights guarantee, and it's included concepts of liberty and the pursuit of happiness. So that means this is a per curiam decision. There is one. There's a concurrence that talks about the test, which

[0:33:12] We don't need to get to. There is a vociferous dissent from a 47 year old Scalia acolyte that we'll talk about in the C segment. But this is a very, very conservative state Supreme Court that 6-1 said, yeah, no, when we look at the history, the original intent, the meaning behind the people who enacted Section 1 of our Kansas Bill of Rights, it very clearly meant to protect personal autonomy. And personal autonomy

[0:33:43] Means the right of women to control their bodies, um, this is not an activist crazy progressive Supreme Court, uh, state Supreme Court, but by any means, oh, this is very, first off, I think my new phrase for like whether or not you and I agree should be, are we in pari materia here, are we, you and I, there you go, uh, and then secondly

0:34:03 Thomas: This is shocking to me, uh, and I'm trying to think, first off, I want to emphasize like obviously I, you know, I agree with the substance of of what's I agree with the outcome here, and I'm glad for it, that they want to protect a woman's right to choose what happens to her body. Totally very ecstatic that they are doing that. But if we change it, we're talking about something else, for example, I don't know what, but some other issue maybe. And a court had done that. It just, it kind of strikes me as activists,

[0:34:34] To be honest with you. You know, like, how do you figure out, okay, here's what we're going to do. We're going to take this subtle language difference that has existed in our state constitution for probably however many hundred years. And we're going to decide today in 2019 that it actually means a different thing than it was in the federal, you know, the United States Constitution. And how are we going to do that? It's unclear to me. Are they going back and doing an originalist textual reading of what the Kansas founders, the founding cat, which I think is Oz

[0:35:08] related?

0:35:10 Thomas: It's got to be some people involved in the Wizard of Oz movie. I think they were the first ones to discover Kansas. No, like how are they doing this? How are they figuring out? And how would they do so in a way that wouldn't just be a partisan lens? You know, like I really don't know.

[0:35:26] So I love that. That let me, that that's a bunch of questions. Let me try and break them

0:35:32 Andrew: Down, and and and let me postpone answering it for just a minute. Right. Because I think the best way to answer that question is to talk about, I should have done this at the outset, is to talk about the the specific facts of the case that came before the Kansas Supreme Court. And that is in 2015, the Kansas legislature passed Senate Bill 95. It was enacted into law.

[0:36:01] Senate Bill 95 five prohibits physicians from performing the dilation and Evacuation method of abortion, except quote, where necessary to preserve the life of the pregnant woman, or to prevent a quote, substantial and irreversible physical impairment of a major bodily function

[0:36:19] Of the pregnant woman. Okay, um, and that dilation and evacuation procedure That is the procedure that is used for 95 percent of all second trimester

[0:36:32] Abortions.

[0:36:35] Sidebar to the sidebar, there is, and I don't know that I'm even going to have time to mention, a stunningly Dishonest National Review article. I know that those are synonyms.

[0:36:46] But the hysterical anti-abortion right calls Dilation and evacuation, evacuation, uh, oh gosh, what, what do they call it, the dismemberment of a fetus, and I, you know, it's and all sorts of other, um,

[0:37:07] You know, kind of, well, we learned from Donald Trump that what happens at every, and this actually happened because, we, you know, I recently had a baby

0:37:13 Thomas: And this is absolutely true, what they do is they wrap up the baby all nice and then they ask you, do you want? Maybe they do. That's every routine.

[0:37:22] That's that's how it works in America, according to Trump. So but but if you want a great gotcha for anybody who is saying, oh, well, you know, we, this is a hideous and barbaric procedure.

0:37:41 Andrew: And then then go to page nine of the opinion, because before

[0:37:47] the trial court. Right. So so the bill passes. And then the exact procedure that I told you is going to happen in Alabama happened in Kansas. Right. A Kansas, except this was in the state courts, a Kansas state court said, yeah, we're slapping down an injunction on this. This very clearly violates the

[0:38:06] the a woman's right to an abortion under Planned Parenthood versus Casey because you are restricting 95 percent of of the abortions in in the second trimester. And the state, in order to argue, oh, no, there are plenty of other alternatives, the alternatives that the state suggested were labor induction abortions, what they refer to as partial birth abortions,

[0:38:38] by the way, induction of fetal demise using an injection, what they refer to as poisoning the baby inside the womb, and induction of fetal demise using umbilical

[0:38:50] cord transection. Right. So all three of those are the same order of, you know, can be described in kind of similarly gruesome language. So, you know, when you see pieces

[0:39:05] like this National Review or your Aunt Kathy or whatever saying, oh, they allowed, you know, fetal dismemberment abortions or, you know, whatever they're calling it on Fox. The state themselves argued for, you know, methods of abortion that would be similarly capable of being described in that kind of language. And of course, right, the game is to reduce this out piecemeal, right? You get rid of the most common method, and then you go after all the rest of the methods, right? And the undisputed factual findings below were that there were no safety benefits to using any of those other methods of abortion as opposed to the D&E method, that those other methods had

[0:39:54] a greater risk of harm to the woman. In some way, you know, in some you might consider more on the minor scale, but health risks that include nausea, vomiting, and hospitalization.

[0:40:13] And in the case of the umbilical cord transection, that the use of that increases the procedure time, makes it more complex, increases the risk of pain, infection, uterine perforation, and bleeding. Misleading, and that all of those are very, very minor procedures.

0:40:34 Andrew: By minor, I mean minority, like infrequently used, right? So this is very, very clearly an effort to make it difficult for women, if not impossible, to get an abortion in the second trimester in Kansas. And what happened was trial court said, yep, obviously injunction, this case violates the law. Kansas appellate court wrestled with the question of whether this constitutes an undue burden under Casey. And so it's split. But because it's split, the injunction stood. And then that was affirmed at the Kansas Supreme

[0:41:14] Court on different grounds. So that gets into the second half of your question, which is, is this a kind of activism? And I would give you a qualified yes, right? I would say this is a kind of activism in the way that hating a hate group is a kind of hatred, right?

[0:41:38] Seriously. And I mean that analogy- In the same way that calling racists racist Racist is the real racist. Right. Exactly. Because what what has happened is right for decades, state Supreme Court has said, look, we can rely on the U.S. Supreme Court to faithfully adjudicate what individual rights are and we're going to let them do the heavy lifting. And, you know, for good or for ill, that's how state Supreme Courts have generally worked. And and here is a state Supreme Court that very clearly looked at this and said, look, we don't have to stick ourselves with the reasoning that this runaway train wreck of a U.S. Supreme Court with where they're going. And and again, I want to emphasize this is a conservative, an old school conservative backlash against a an activist reactionary U.S. Supreme Court.

[0:42:35] There is nothing—so now, is it activism in the sense that they change their course in their jurisprudence? So, yeah, that's a fair initial description.

0:42:49 Andrew: But is it activism in the larger sense? Absolutely not, right? Right. There is nothing that prevents a state Supreme Court from saying we're going to undertake this analysis independently. And you know what? States are sovereign. So even if the people, because think about this, if

[0:43:08] the idea, if follow originalism, right, to its stated position, right, which is to say that you are

[0:43:20] bound by the meaning of the terms of the provision of the Constitution as understood by the people who ratified it, right, at the time at which that was ratified. That understanding. Right. You could have identical words and the understanding on a national level may be very different than what it's understood in a particular locality. Right. You could say, yeah, we interpreted these words this way generally across the country. But we interpreted them this way here in Kansas, that there's absolutely nothing inconsistent, even if the words were identical. And where the words are not identical, right, then it certainly is worth saying, hey, did we mean to do something different?

[0:44:09] Now, in going through the historical analysis that the Kansas Section one of the Kansas Bill of Rights was passed prior to the passage of the 14th Amendment. It predates it. So, yeah, there was a lot, you know, going on at the time. And again, 20 years ago, this decision wouldn't have come out. Right. Because 20 years ago, the Kansas Supreme Court would have said, you know what, we're OK with where the U.S. Supreme Court is going. Um, they're not okay with it anymore. And, um, and, and then to answer the second part of your question,

[0:44:53] um, half of this opinion, I, I told you the majority opinion was 86 pages long. That's true. 86 and a half, almost 87. The bit that I read you about personal autonomy

[0:45:06] is on page 44. The next 40 pages is a historical analysis of the original meaning and precedent for since the adoption of Section 1 of the Kansas Bill of Rights. And and OK, it's what I it's why I really wanted to get into this opinion, because there is, in my view, you know, if

[0:45:32] you want two words that differentiate old school conservative jurisprudence from contemporary howler monkey reaction reactionary judicial activism. Right. It's those words and precedent. Right. It is that there is no question here that that there is an effort being made to understand the original meaning of those words in the Kansas Constitution. Constitution.

[0:46:04] That's what they set out to do. And there's nothing improper about wanting to do that. All I've ever argued against original—I've never said, you know, hey, we shouldn't try and figure out, you know, what this meant in 1789. All I've said is that the ordinary model of jurisprudence says is that that understanding is informed by how those words have been interpreted over time by the relevant court of having relevant jurisdiction interpreting those words over time. And that we don't get to look at it fresh in 2019 and say, well, you know, obviously the Second Amendment means that individuals have a right to a semi-automatic weapon with a magazine round capacity of 30. Like, that's what makes it preposterous, right? It's not the effort to divine the original principles. It is refusing to recognize

[0:47:00] that how those principles get applied over time is what makes the rule of law the rule of law. All, um, it's a, it's a, it's a really, really fascinating decision. So if you have a couple of hours, I would encourage you to read the first seven pages. Yeah, curl up with, uh, with this. No, this it's also a fun read, because, um, state Supreme Court decisions are, are written differently, uh, than, than U.S. Supreme Court decisions. And I can tell you, say first seven pages, that's really The first eight or nine pages of this are the headnotes. They're numbered. It's actually just the first five pages. They're the 21 headnotes, which is a summary of the findings below. So you can read the first five pages, and it gives you kind of the Sparknotes, CliffsNotes summary

[0:47:50] of the law in a way that any listener of OA can clearly understand it. So, right, for example, Head Note 3 says Kansas courts have the authority to interpret Kansas constitutional provisions independently of the manner in which federal courts interpret similar or corresponding provisions of the U.S. Constitution. This can result in the Kansas Constitution protecting the rights of Kansans more robustly

[0:48:15] than would the United States Constitution. Right. That's not hard.

0:48:20 Andrew: And and it's a great it's a it's a it's a great lesson. And and it's a. Well, that's all

0:48:26 Thomas: Cool, but it still feels like a matter of luck. Like, I mean, countdown to this being used for evil in some other state. Right. I mean, couldn't you couldn't the state Supreme Court decide

[0:48:39] something abhorrent just based on the same method? But again, they can't decide it lower

0:48:45 Andrew: Than the minimum bar protected by your federal U.S. constitutional rights. So

[0:48:51] it can't get worse. Look, like, I agree, you know, your federal rights are dwindling by the moment. Yeah. But but that's what I mean when I say that it's no risk. Right. Like if they if they come up with a kind of a terrible decision, then the floor of that decision is going to be the U.S. Supreme Court. So, you know, it's it can't be worse than that. You know, it's

[0:49:18] a heads nothing happens entails you win. So what that means is when you are talking to your candidate for governor in your state, ask her who she intends to appoint to the state Supreme Court. Right? Ask her how she intends to maintain the independence of uh the Kansas or the Maryland or

[0:49:49] the California judiciary from the U.S. judiciary. That's how bad things have gotten. It's requiring us to know and care about who might be in some sort of state government that I guess we all have. Yeah, yeah, no, that's good. We should be more civically engaged, which I'm entirely joking.

0:50:08 Thomas: Joking. We should be more civically engaged anyway, but good advice there. Hey, listeners, Opening Arguments is brought to you by The New Yorker, and we love The New Yorker because it represents the best writing in America today. It is good,

[0:50:20] Thoughtful, compelling storytelling.

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[0:50:48] Park Five.

0:50:49 Thomas: You know, you'll recall that Donald Trump took out a full page ad asking for the death penalty for the Central Park Five, who were then later found innocent. Jelani Cobb gives you the full breakdown down there and takes you back to what it was like experiencing that story. And especially with the paranoia about crime in New York, because there was a huge crime wave then. Anyway, interesting stuff like that day in, day out at the New Yorker. I highly encourage you to check it out. They've got a great offer for you. 12 weeks for just $6.

That's regularly $12, but it's $6 plus the New Yorker tote bag. You get home delivery of the print edition each week and unlimited access to newyorker.com with 10 to 15 exclusive site-only stories every day. You get access to the app, the online archive, the crossword puzzle, and more. Get 12 weeks of The New Yorker for just $6 plus that exclusive tote. Go to newyorker.com slash arguments. Listeners save 50% when they enter that code, arguments, newyorker.com slash arguments. Hop on over and gain access to some of the best journalism around. So, we, we in the remaining time, the short time we have, we've got

[0:51:58] to get to this listener question. Right? He who questions training only trains himself at asking questions.

[0:52:06] What? Yeah, we'll do it. I'll do it super quick. I wish I could do. Okay, fake lightning round. Stephen X. Davis asks, Caleb Stiegel went from being uh the governor's chief counsel to a state Supreme Court justice in just eight months with a short layover on the Kansas Court of Appeals. He's 47. Stiegel or Stigal, like Stephen Stigal. Stiegel is a hardcore originalist and worships Scalia. My question is this. What the clown horn is his dissent supposed to mean? His leap from individual rights to the state's police power makes no sense. And I'm not sure what, if anything, I'm missing. Wow. What an awesome question from a highly informed listener, Stephen Davis.

[0:52:53] Yeah. What do you say to all this?

[0:52:57] A, I love the background on Stiegel. His dissent begins at page 115,

0:53:04 Andrew: And is 84 pages long, um, so longer than the majority opinion, um, when once you've subtracted out the head notes and the introduction. I mean, significantly longer, um,

[0:53:17] here's the reason that the opinion seems weird, and that is the entirety of the case comes down to, as as we've mentioned, the distinction that, you know, the the distinction between the Kansas Constitution using the word natural rights and the 14th Amendment, uh, not using those terms. So then the question is, what do natural rights mean? Right? Um, by the way, this is something I can't tell if

[0:53:48] I don't know, know who this Carrie Severino is in the National Review, um, that, so I can't tell if this is uh disingenuous or just stupid, but it's one of those two, right? Um, because uh the the conservative sources you see uh pillaring the the state

[0:54:07] the Kansas Supreme Court are like, and why would uh you know state supreme court like go through this lengthy uh opinion. Me, and I'm gonna read uh from the National Review here, the opinion meandered from the historical and, quote, philosophical underpinnings of natural rights, to an exploration of bodily integrity, and sort of lampooning it as, you know, kind of judicial activism and navel gazing. You have to figure out what the words natural rights means in the Kansas Constitution in order to adjudicate whether it's different from the 14th Amendment.

[0:54:44] Um, and by the way, that's what you should be doing, uh, if you honestly believed in your originalist philosophy that you care to espouse. Now, what is Stiegel doing in his dissent and why is he talking about the police power? It is terrifyingly simple.

[0:55:04] And it is this.

0:55:07 Andrew: The second paragraph, and I get that there's a ton after it, but the second paragraph actually summarizes where his opinion goes. He says, the structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare. Now, that's a lot of fancy language for saying, hey, the majority passed a law. Who are we to tell the majority they can't pass a law? Um, I, I realized that sounds ridiculous, um, because the, the entire right, like the definition of a right is a right against the majority, right? Like you don't

[0:55:58] need a right if, unless until someone passes a law preventing you from doing a thing, um, but but that's literally what he says, and so. So the importance of the police power is to say, if he can prove that the state has the legitimate right to pass laws in that area, then by definition, you don't have a specific right as against the government that then can be the basis of a lawsuit, or in this case, can be the basis of a claim arising under the Kansas Bill of Rights. So the entirety of the dissent is meant to say, no, Lockean natural rights here were not meant to be rights, but were meant to curtail the power of the state in specific ways. They're not curtailed in this particular way when it comes to abortion. Therefore, you don't have this wide ranging individual right to autonomy. Um, that's

[0:57:01] the argument that they're trying to point together. If you're thinking, hey, wait a minute, I thought these were supposed to be libertarian, uh, pro small government, you know, drowned it in the bathtub, the answer to that is no. There's no, there's no consistent answer to uh how these uh small government. This is, this is explicitly a defense of wide-ranging government power to let the majority do uh whatever it is the majority wants when it comes to, you know, restricting women's bodies, uh,

[0:57:33] and and other stuff that, you know, conservatives care about, um, but uh, you know, the government has to be uh hands off when it when it comes to uh to taxes, um, that there is, it, it I don't recommend reading the dissent. I, I, I have read it, I don't, it, it is

[0:57:53] clown horn of a dissent. I mean, it includes, it, it, it feels like it was not cobbled together by a lawyer, um, it, it, it includes like the weird, you know, discussion of

0:58:05 Thomas: How is it snitty? Like it was written by one of the staffers? No, never mind, sorry, call back to bar

[0:58:12] testimony. Yeah, um, I, I, we're here, what do you make of this? Okay,

0:58:18 Andrew: Today's opinion does not disclose the inconvenient fact, fact that a majority of the 41 women serving in the Kansas legislature at the time of passage voted in favor of SB 95. In favor of is italicized, by the way. The majority does not grapple with the problem of sex selection abortions and the vicious misogyny inherent in

[0:58:36] that despicable practice.

[0:58:39] See Eberstadt, The Global War Against Baby Girls, from the New Atlantis. I mean, like, literally, if if this were a liberal judge who had written this opinion, everybody would be all over. Right. Oh, you're appealing to the votes in the legislature and you cite an opinion article in the New Atlantis. Are you Kidding me? Like, well, whatever happened to just umpires calling balls and strife? Yeah. You know, and

[0:59:04] then. Right. There's a long, you know, selection. There's a long bit. There's a citation to the U.N. Population Fund to talk about the worldwide rise of sex selective abortions. You know, despite the fact that this Scalia, I mean, Antonin Scalia, you

[0:59:23] know, once ridiculed Ruth Bader Ginsburg from the bench for citing to the United Nations in an opinion. Um, the majority does not mention the fact that more, quote, progressive nations in our global community

[0:59:35] tend to restrict abortion after the first trimester I I are you kidding me like these are the kinds of arguments that uh Scalia made a career out of lampooning.

[0:59:48] Um, and and, you know, he certainly would not uh sign on to this opinion. Um, it's it's it's astonishing to me. So it seems a little out there. It seems a little desperate. Yeah, it absolutely right, it seems politically motivated. Yeah, like have you guys considered something that might might be happening on

1:00:08 Thomas: An international scale that I read in this one magazine? Huh? Did you consider that in

[1:00:14] your opinion? Yep. Majority? Yep. So, but look, like, this is state Supreme Court. And again, you know, people who belong to the Federalist Society listen to this show. So, you know, maybe they're going to start trying to weaponize state Supreme Courts as well. That's what I'm saying. Just count down to this being used for evil. That'll happen. But right now, you know, this is where we need to be out in front. And look,

1:00:47 Andrew: You know, this goes to show you the landscape, at least here, you know, isn't maybe what you think it is. And, you know, I, I have said from the very literally from episode one of this show, you know, give me an honest political conservative on any court anywhere, you know, somebody with whom I can have a discussion and say, OK, you know, we, we disagree over X, but we at least agree on the facts. We at least agree on the line of precedent from 1789 to now. You know, I can talk to that person. I can deal with that person. And most importantly, I can construct an argument in front of that person. Right.

[1:01:35] You know, Samuel Alito, I don't know how you construct an argument. I mean, this is the question we tried to ask Monica Miller. Right. How do you try and persuade Clarence Thomas? Answer, you don't. Right. Right. Like that's that that feels like a, you know, a bad, you know, bad Rodney Dangerfield routine. But like it's just true. Right. I mean, who on earth with a politically motivated, you know, or with with an opinion that has

[1:01:59] a potential political outcome. Why would you look at Clarence Thomas when you're when you're making your argument? Right. Like, you know how he's going to vote in advance.

[1:02:10] Lots of people. Right. Right. You know, we talked about this in Friday's episode.

[1:02:18] I clerked for a very conservative Supreme Court, state Supreme Court judge, justice, and those people did not get involved in the law to rubber stamp, you know, political outcomes, cubs right by and large, um, that they're, they're, they're not the same as the current wing of activists that are out there. And um, uh, and and I think it's time that we start understanding how to uh, how to pitch our arguments to

[1:02:59] the folks who might listen. So uh, so there you go. All right, well, a little little little bit encouraging, but we'll we'll leave it to the the listeners to decide, but it is time to thank

1:03:10 Thomas: Our new patrons over on patreon.com/law, and uh, hope you enjoyed the Q&A, hope you enjoyed the new intro quotes, all the good stuff, bonus episodes occasionally as well, and uh, a lot of movies coming at you soon. But here we go, we start with D4 takes the bar exam, 32 for 122, 26.2 percent, next answer is D. Oh, so someone's just rolling dice, right? D4? Yeah, there you go. Cranky Activist Coloring. Well, their prediction is next answer is D, so we'll see if that's right, because I think I guessed C, right? I don't know. We'll find out in a minute. Cranky Activist Coloring.

1:03:50 Thomas: Nathan Dickey. Chris Naylor. Jake Cox. Fox anton pop uh pop a vine pop sorry scott bell jeremy smith with hamberder

[1:04:01] Boss and Dan Bongino can eat a clown horn. Oh, Bongino. Yeah, yes he can. Bongino. Yeah, who is that? Oh, I I don't have enough time to go through it, but yeah. Oh, okay, well, your turn. Uh, thank you to Christopher C. Stotts,

1:04:21 Andrew: Tom Kane, Calder Cleavelin, Kristee,

[1:04:26] Johh Johns, J-O-H-H, Johh Johns, Niklas Starck Westerberg, Valerie Galloway, Jared Novack, Josh and Malleus Varmintum, uh, and then there's some symbols, Mr. Bible Pants. So thank you all so much, and if you'd like us to give you a shout out, head on

[1:04:45] over patreon.com/law, give us as little as a buck, come on, you can toss us a buck, and uh, and we'll read out your name even if it has clown clownhorns or Bible Pants or uh, I don't know, repeated letters in it. Thank you so much for helping us out. Hey, listeners, Opening Arguments is brought to you by The Great Courses Plus.

1:05:04 Thomas: Sometimes we all need a break from the constant news cycle and us especially on this show and the great courses plus can be a great escape and so empowering as well with the streaming service we can pick up a new hobby or build our knowledge on virtually any topic we want to know more about Like the Great Palaces of the Ancient World or Life Lessons from the Great Books. Even how-to courses on everything from cooking to stargazing. There are thousands of fascinating lectures to explore, all presented by award-winning experts who are so passionate about what they teach.

As I say, they have an Andrew Torrez over there for every topic. It's perfect. And with the Great Courses Plus app, you can escape into this vast world of knowledge at any time. Watch or listen, whatever works best for you. You. And I got to recommend, here's this, you might not expect this, but I got to recommend this cooking course called The Everyday Gourmet Rediscovering the Lost Art of Cooking. I have been actually having to cook dinner since Lydia is tethered to a newborn. I've been having to cook dinner and you know, I'm kind of enjoying it and I want to get better at it.

I'm going to watch this Everyday Gourmet Rediscovering the Lost Art of Cooking course. And it's all kinds of stuff like that. I love that if you want to get into anything, whether it's cooking or or is it photography, whatever it is, you can learn from the best in the world at the touch of a few buttons here. So, empower

1:06:24 Thomas: Yourself with knowledge. Sign up for The Great Courses Plus today. Our listeners get an all-access trial for free. For free. Start your free trial now. Go to thegreatcoursesplus.com slash OA. That's OA, of course, for opening arguments. Remember, Remember, thegreatcoursesplus

[1:06:41] .com slash OA, free trial access to every course that you could possibly want. Go check it out. All right, it's time for TTTBE. I'm not happy with how this one went. We'll see. I'm not optimistic, though. And also, we get to check if the D4 answer of D, if the DICE answer of D is right. Maybe the DICE is doing better than I am on this one. We'll

[1:07:05] see. Oh, no associate of this firm has ever failed the bar exam. No kidding. Yeah, so this was someone bought a bottle of decomposing snail soda. It's incredibly addictive.

1:07:20 Thomas: Come and do an OA merch store near you.

[1:07:25] Decomposing snail cola. Oh, that's, I bet some of our listeners could. I feel like our proven innocent candles will sell better than that. Those are so good. And, you know,

1:07:38 Andrew: Got, got totally sick and and sued the store to recover

[1:07:44] damages from the injuries that she that she had from drinking decomposing snail soda. Important facts. The parties agreed that the snail had been put into the bottle during the bottling process, over which the store had no control. Parties also agreed that the snail would have been visible in the bottle before the consumer opened it. This is a super classic tort question, it is a question of strict liability, and so

[1:08:13] you need to know, uh, is this a strict liability offense, and if so, did any of those facts that I talk about matter? And um, you eliminate, you immediately eliminated D, which I have to tell you was a really excellent elimination, and I'm hoping that you eliminated D because of, you didn't say this, but I'm hoping because of a prior TTTBE where we talked about Ipsa Loquitur.

[1:08:40] D was yes, because the store had exclusive control over the bottle before selling it to the consumer. Exclusive control is one of the tests of Ipsa Loquitur, right? And Ipsa is the tort doctrine that allows you to sue somebody even when you can't directly prove it was them, right? Oh, that's right.

[1:08:59] Yeah, yeah. Yeah. So the barrel that says Thomas's Barrel Company falls off the truck and rolls around, you know, and what you have to do is show that the barrel says Thomas's Barrel Company, even

[1:09:12] though, you know, you don't know who had who was driving the truck or, you know, 12 surgeons are in and they leave the sponge that says, you know, this sponge, you

[1:09:25] know, comes from Sacramento General Hospital. Right. Yeah. You don't have to be able to prove which doctor did

1:09:31 Thomas: It. It's just like, all right, you guys did this.

[1:09:34] Exactly right. So this is not an Ipsa case. So that is a total non-attractive distractor. It did not attract you. It did not distract you. Good work. Then the question was, is this analyzable under ordinary negligence principles? So A was no, because the consumer could have seen the snail in the bottle before she drank out of it. That is the defense of contributory

1:10:03 Andrew: Negligence. Right. And in most states, contributory negligence is a common law doctrine. It is not followed in most states. It is followed in Maryland. It's kind of weird. But but contributory negligence says if you contributed to your negligence, then the defendant is alleviated from the responsibility. Right. Right. Like so if it's kind of your fault, then you can't pin it on the defendant. And so it breaks the chain of

[1:10:27] causation.

1:10:28 Andrew: Almost every state has moved to a comparative negligence standard, which is exactly what it sounds like. It's like, OK, well, how much of this was your fault? OK, you were 20 percent at fault. The defendant was 80 percent at fault. So you get 80 percent of your injuries recovered. And how could that happen? Right. That is like somebody T-bones you, but you weren't wearing your seatbelt. Right. Right. So your injuries are worse than they would have been if you had been wearing your seatbelt.

[1:10:53] But the guy still slammed into you. Right. Right. This is going for a contributory or comparative negligence with respect to, hey, you could see that there's a snail and you drank it, you dummy. Doesn't matter. Not a defense in a strict liability case. And then B, no, because the store was not responsible for the bottling process. I kind of felt like that was the most intuitively attractive distractor. And that really gets down to the whole philosophy behind strict liability in the first place. So what does strict liability mean? It means what it says, right? If

[1:11:28] You do a thing and somebody is injured and the tort is strict liability, then it does not matter whether you exercised care or whether the plaintiff failed to exercise care. Nothing matters. We think that that kind of tort is something where, from a social perspective, we value making the victim whole more than we value properly apportioning the fault, right? And so, in other words, if you think about—and manufacturing defects, right? And that's what this

[1:12:00] Uh, would, would fall under, right? That's that's the significance of the snail gets into the bottle during the bottling process, right? So it's a manufacturing defect, albeit a weird one, you know. Usually it's something like, um, you know, the the teeth on this chainsaw are offset, right? Like, there was a, there was a problem on the line, and now the chainsaw, when you start it up, it throws the chain into your

[1:12:24] face, right? Um, and so, yeah, real case. Andrew's school of gruesome, uh, strict Strict liability cases, yeah. Right. But so you could imagine, if you're just using ordinary negligence principles, right, now you have to figure out, well, who was negligent here, right? Like, did I use the chainsaw the wrong way? Did I put on the chain the wrong way? Did the

[1:12:49] store fail to label it? Did the distributor fail to box it up? Did the manufacturer fail? It's the famous legal test of, did I do that? Exactly right. To give you a nice current reference by your… Yeah, yeah, no, it's a current reference. No, so in strict liability cases, we say, you know what, there's some kinds of torts that we don't want the plaintiff, we don't want the burden to be on the plaintiff

[1:13:17] you had to figure out where in the supply chain this went wrong. We want, we want the plaintiff to be made whole first. Let him recover from whoever, and then let the defendant sort it out, right? So that, and and that, by the way, is kind of the answer to the fairness question. So, um, you have you have discovered by process of elimination, your answer C. Yes, because the consumer was injured by a defective product sold to her by the store, uh, that is indeed the correct answer. Wow. Um, and and the reason

[1:13:48] that you were a little bit uncomfortable, I I suspect, is, is you're thinking, well, what if the start, what if the store didn't know

1:13:54 Thomas: Right I mean yeah like it doesn't quite seem It's interesting. I'm glad I ended up the right answer. But yeah, it's like I felt uncomfortable because it doesn't seem entirely fair, but it sounds like it's kind of where we've landed socially, like this is what we want to be. It's the best option in the series

[1:14:13] of options. And there's a really, really important second half of this that doesn't show up in the question that is nevertheless important in the law. And that is the question doesn't ask, what cause of action does the store have against the manufacturer? Right. Yeah. Right. So the store, and look, realistically, all of this is likely all have a decomposed snail insurance policy. I hope. I hope you definitely take snail insurance policy from a podcast. Advice from that.

[1:14:47] I'm sorry. This policy has a rider that specifically excludes decomposing snails. I forgot, our new advertiser, snail insurance. If it had been a live walrus, then you would have been okay. But decomposing snail is on the exclusions. No, um, it, what what strict liability does is it, it doesn't leave the last person holding the bag. It shifts the risk of litigation from the plaintiff to among the defendants, which makes sense. Okay, so it's, so it's

1:14:32 Andrew: To be covered by insurance in a real world. But yeah, but even a common law. Right. What this does is we

1:15:21 Thomas: Kind of, it's more, it's not based on like, a, okay, what's the absolute fair thing to happen. It's kind of based on, like, all right, who's gonna tend to have the the power in the situation, and who do we want to, whose life do we want to make whole easiest and first? And that, the answer would be the poor snail consumer. Yeah.

[1:15:39] Who is, who is barfing. Yeah. And and and look, um, this was, this was

1:15:45 Andrew: The battleground on which I litigated insurance coverage cases

[1:15:52] For. Right. And that is, there there there are two ways in in the corporate insurance world to view how a an insured can make a claim for a long-term liability.

1:16:11 Andrew: Reliability. Right. And and and so these are things like pollution cases or health hazards, asbestos. Right. Like, OK, people working at our plant were in the boiler room were exposed to asbestos over a 30 year period. We had 50 different insurance policies over that 30 year

[1:16:30] period. And the threshold question was, could that insurance policy holder, could they pick any one person, any one insurer, and say, hey, guess what, Lloyd's of London? I had a Lloyd's policy and I want you to pay for all of it. Uh, or did they have to pro rata split it up over every single insurer over those 30 years? Um, and that, uh, and that approach, right, obviously the the insurer, you know, I represented the insurance company, um, we argued for the pro rata approach for for obvious reasons. Um, but even when we had, it's called all sums, is the first one, even when one insurer gets stuck

[1:17:13] with all of the losses um And it's not the end of the day, right? It just means that shifts the responsibility from the policyholder to, okay, now you insure. I got mine. I was made whole. Now you insurers go figure it out amongst yourselves. And so it's still a common doctrine in the law in terms of trying to figure out who bears the ultimate risk of loss. And that risk, right, I suppose I should add this

[1:17:53] last bit here.

1:17:55 Andrew: The real risk is what happens when somebody goes

[1:18:01] bankrupt, right? So that's part of what that's all about. This is the longest explanation of an answer that I even got right. You got right. I know. I'm sorry. We're all in pari materia here that I got it right. You got it right. We're done. We'll do more later. I'm sorry. How foolish does that die feel that it rolled a D, idiot? Went for the attractive distractor. What a dummy. Yep. All right.

1:18:26 Thomas: Back on top. Here we go. Hop in your time machine and give us a 45-minute

[1:18:32] explanation of which listener got this question right. Meanwhile, at the Hall of Justice. All right.

1:18:38 Andrew: This was a great question for social media. A lot of folks had fun playing along, and there were a lot of really perceptive right and wrong answers. So, Tom Pandolfo, for example, writes, "C, the store can then sue the bottling company to cover its losses, as they are in a better position to do so than the poor besnailed

[1:18:57] customer," which is exactly right. Um, Dan S adds, "I'm with Thomas on C. The key is that the bottle was transparent. The store had an opportunity to examine the snail infusion prior to sale." Uh, actually not relevant, uh, but it does sort of go to the fairness question, uh, as as we just talked about. Uh, but the first person out of the gate with the right answer, uh, is Action Toast, I believe, a now a two-time TTTBE winner. Who writes, "The answer is C, as Thomas discerned, stores that sell food are liable for damages for faulty or inedible products sold to consumers, and they then have the ability to go after the manufacturer to recoup those damages, because the customer does not have a direct relationship."

[1:19:44] Succinct, dead on correct on the law, and congratulations for being this week's winner, Action Toast. And everyone give it a follow at Action underscore Toast on

[1:19:57] Twitter. And congratulations on being this week's winner. All right, thanks so much for listening. Uh, thanks for everything, patrons. We love you. Thanks for for making the show happen. Patreon.com/law. Go support. Get access to goodies.

1:20:09 Thomas: And we will see you on Friday for another rapid response.

[1:20:13] Yep. Stay fresh, cheese bags.

[1:20:17] You betrayed the law! Law!

[1:20:24] 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.

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[1:21:46] I never dreamed that you would be so in love with my new saying that I got from an online meme. Stay fresh, cheese bags.