OA280: Abortion Rights Under Assault

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 Thomas: Hello, and welcome to Opening Arguments. This is episode 280.

[0:01:21] I'm Thomas Smith. That over there is Andrew Torrez, Esquire. How are you doing, Andrew? I am fantastic, Thomas. How are you? Yeah, good, but this is gonna be one of those episodes. I feel like, maybe, uh, maybe Andrew will bring us around, maybe the power of Optimist Prime will, will save us, but I don't know. We got to talk about a really, really bad abortion law. You know, I, I, uh, I'm all dressed up in my Handmaid's Tale outfit, but then I realized this, as as a man, I guess I wouldn't,

[0:01:52] they probably wouldn't put me in the red outfit, now I think about it, but I, I hope the point still stands, okay? I hope the point, solidarity, yeah, is important, I think. Yeah, yeah, no, that, look, this is, this is not the A segment, right, is is going to validate what we said about there being some, um, some good news at the, the, the state level, uh, but, but look, um, this is the flip side of, uh, of, of what we talked about on

0:02:24 Andrew: Uh, on last week's show in, the is that, um, conservative activists in a number of states have passed extreme and outrageous abortion bills, and we are going to break down. There's... there's a lot of confusion, particularly over the Georgia bill. I'm going to tell you why, and I'm going to tell you exactly what that bill says, and

[0:02:43] then we're gonna talk about the Alabama bill. It's, uh, it's, yeah, this is, this is not gonna be, if you need to be uplifted, tune in for the first 10 minutes, and then, um, yeah, let, leave it playing in the background. So this show is about abortion, and probably due to our backgrounds as cis men, we use some gendered language. Um, women's rights are under attack right. But so are our trans friends and others. And on reflection, we thought that it was important to emphasize that abortion isn't

[0:03:14] just a women's rights and women's health issue. Trans men can get pregnant. Non-binary individuals can get pregnant. And as a community, we know how important visibility is, and we want to make sure that we're including everyone in this discussion.

[0:03:30] Thanks, and we hope you enjoy the show. But as unpleasant as it is, we live in an unpleasant time. So

0:03:36 Thomas: It's kind of, we need to be armed with the knowledge to move forward and try to make change. So here we go. We'll

[0:03:42] start with a listener question. He who questions training only trains himself at asking questions.

[0:03:50] What?

0:03:52 Thomas: Reed Henninger at RGH184 on Twitter asks, asks, if SCOTUS overturns Roe and Casey, I'd be curious how that, I didn't really think of that, if you, you ever turn one but not the other or both, anyway, couldn't a GOP Congress pass a law banning abortion federally, mooting all state-level constitutional rights to an abortion? Very interesting question. I think this is in response, like you've said, uh, in past weeks, you've talked about the state-level strategy to deal with this, so

[0:04:23] what say you, Mr. Torres? So here's what would, would have to happen, and, and the answer, this question, I am really confident, is no, no, they could not. So

0:04:35 Andrew: Like I said, we're going to start off with some good news. Here's what would have to happen, right? You would have to not only pass a federal law banning abortion, right, okay, that would not be hard with a Republican Congress and a Republican president and a Supreme Court that overturned rowan Casey, but that law would, number one, have to explicitly, preemptively occupy the field, right? And what that means is, maybe that the easiest way to explain preemption is to explain some things that are not preempted, right? So, for example, right, the, the federal Controlled Dangerous Substances Act, for example, does not occupy the field, it is not preempted. That's why you can have state laws in California, in Colorado, that legalize marijuana, even though marijuana is still prohibited by federal law, right? So you could very easily imagine a federal prohibition on abortion that is not meant to apply to in

[0:05:44] -state, which is all abortions, right? Right. Unless you have some kind of, like, mobile van at the border. Right. Right. If an abortion clinic is on the border between two states, where do you bury Exactly. So, in order to prevent the states from doing the kinds of things that we've talked about in Iowa and Kansas, the federal government would not have to, would have to do more than just pass a law banning abortion. They would have to specifically say, and we are preempting all state laws and state constitutional provisions to the contrary. That's a pretty dramatic step. But okay, suppose they do that as well. Then you would have to ask, is that constitutional? Constitutional, and here's where this is kind of continuing the theme that we've talked about a lot in recent weeks, and we talked about it extensively on Friday show, using

0:05:57 Thomas: The survivors? Exactly.

0:06:41 Andrew: The conservative principles outlined by the judiciary and by our right-wing activist Supreme Court against them, right? And one of the things that has developed, uh, very, very strongly over the past 15 years, is the body of law restricting the interpretation of the Commerce Clause, right? For most of the nation's history, when Congress wanted to regulate a purely local activity, they would say, oh, well, we think this likely affects interstate commerce, and therefore they could go ahead and do it. That would be what you would have to do in order to regulate abortion. You would have to say, oh, this, this is really an aspect of interstate commerce.

0:07:27 Andrew: But abortion is very clearly not an aspect of interstate commerce.

[0:07:32] Abortion is in-state, and it's dubious as to whether you would call it commerce, but you are exchanging money for services, so it would fall under the legal definition. But in order to make it interstate commerce, we look to—there's a case that is kind of the seminal case on this in the modern era. It's called U.S. v. Morrison. And we've talked about it before. That's the case that struck down the provision of the Violence Against Women Act. And again, it struck that down on the basis that those kinds of domestic violence crimes are

[0:08:16] not interstate commerce. They are occurring solely within the borders of a state, and any impact on interstate commerce is really incidental. And that, right, was a bad result for women. It struck down a really good part of a

[0:08:35] good law. Um, but, but the principle there is one that I think this conservative Supreme Court would, would want to continue, uh, to support, and and it is this, right, in

[0:08:48] order for Congress to pass legislation under the Commerce Clause, it has to it has to fit into one of three categories. Either one, Congress may regulate the use of the channels of interstate commerce, right? So banking, that's clearly not abortion. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from only in-trust state activities, right? So that is used, for example, uh, the, the case that I think

[0:09:25] is at the far edge of, uh, of, of the Commerce Clause is a case called Gonzalez versus Reich, which has to deal with regulating local

[0:09:38] growing of marijuana, even though there was no evidence that the marijuana that was being grown was actually placed

[0:09:52] into interstate commerce. The idea is this is the kind of thing that is used in interstate commerce, and if you're growing it locally, that can alter the markets for drugs that are interstate.

[0:10:10] But again, it's really tough to see how that fits with abortion. And then the third is Congress's Commerce Authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce. And it is items

[0:10:29] two and three where most of the debate is focused. And I don't see a really good cause to be able to say that in-state abortion clinics, particularly given the findings with respect to that, women are substantially deterred when they have to drive hundreds of miles. That's the whole game plan in states like Texas, is to force women to drive hundreds of miles in order to deter them from having abortions. Again, use that evidence against them. That is then pretty solid evidence that there is not a, quote, substantial relationship to interstate commerce. So I think a federal abortion ban would not survive this conservative Supreme Court. I think they would say, no, look, this is quintessentially a state matter, right? This is what happens to residents of the states. And we want states to be laboratories of democracy. And some states will protect abortion and some states will restrict it and some states will ban it in a post-Roe, post-Casey world.

[0:11:41] And I think that that's likely to stand. And so, go forward and engage in grassroots civic activism at the state level, because I think you're safe.

[0:11:54] All right, I'm trying to find a way to rain on your parade, but I don't

0:12:00 Thomas: Know. I guess another thing, you know, just because my, if I have any area of knowledge, it would be more political than legal on this issue. I actually don't know that even as evil as Republicans are, that they would do something like, like that they would pass a law like this at the federal level. So, in addition to what you're saying, I actually don't think they would do that, just politically. Like, you know, we already know, as much as Susan Collins, you know, blew it with Kavanaugh, I think, and thinking that Roe was totally safe, I still don't think someone like her would vote for a an outright ban on abortion on a federal level, and I have to imagine there's going to be a couple other Republicans, uh, to where they would never have those numbers, but you never know, you never know. What do you think about that? I

[0:12:50] I I want to look like I what a weird reversal of our optimist

0:12:56 Andrew: Prime and negatron roles. Um, I, I'm gonna go, I'm gonna let the optimist in me win out, and and say that that is such an extreme position that, that I think it could be political suicide, particularly for, you know, a lot of folks who are, you know, pro life, but are not, you know, at the, you know, life begins a conception phase. So I can see that.

[0:13:22] And again, I think that dovetails with what I said at the beginning of the segment, which is this law would not just have to federally ban abortion, but would have to say, and we will tolerate no state laws to the contrary. We preempt all state laws and state constitutional provisions. It would be very, very extreme.

[0:13:40] So yeah, you know. And not to mention, if we just simply don't lose control of the House, this just can't happen. So yeah, that would be nice, wouldn't it? Yeah. Okay, well, interesting, uh worth asking though for, uh, you

0:13:52 Thomas: Know, in 2022, when I believe everything's going to turn to, uh, crap, even if we win 2020. So there

[0:13:59] we go. Once we lose the entirety of... Well, I guess maybe we'll still have a Democrat in there to veto it. We'll see, but that's just negatron speaking. Um, all right. All right. Let's move on to, so that was the, am I right that that was the high point of today's episode?

[0:14:16] That's the high point of today's episode. That's the high point. It's all downhill from here. Opening Arguments is brought to you by Harry's Razors.

0:14:23 Thomas: I love Harry's Razors. And you know what? Andrew and I, I've convinced Andrew to grow a beard and it was the best thing he ever did. So Andrew and I are both beard wearers. However, that doesn't mean we're not shaving. You got to keep that thing neat and tidy. You got to shave your neck. Otherwise you're going going to look real sloppy. You don't want to just have a neck beard. So we still have to shave and we shave with Harry's razors.

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[0:15:37] they're just $2 each. That's half the price of the Gillette Fusion Pro Shield. All Harry's blades come with a 100% quality guarantee. And if you don't love your shave, let them know and they'll give you a full refund. Right now, get a $13 value trial set that comes with everything you need for a close, comfortable shave. Weighted ergonomic handle, five blade razor with lubricating strip strip and trimmer blade, rich lathering shave gel, and a travel blade cover. Listeners of our show can redeem that trial set at harrys.com slash arguments. Make sure you go to harrys.com slash arguments to redeem your offer and let them know we sent you to help support the show. Do it right now. harrys.com slash arguments. Okay, Georgia's abortion law, Andrew

[0:16:20] Torres, here we go.

[0:16:25] yeah let's so let's clarify this georgia's existing abortion

0:16:31 Andrew: Law is already really really bad, right? Georgia outright bans all abortion services

[0:16:38] after 20 weeks um that's very early um and that's already quite restrictive. Um, and by the way, uh, doctors are required to distribute this misleading quote health information that talks about like how cute your little fetus is and how it can feel pain and you know it's, it, so look, Georgia's law is bad now, but it's about to get worse. It's about to get way worse. The bill that was just passed does not take effect until January 1st,

[0:17:15] 2020. So it's got a seven-month lag time because this bill, like many of the bills being passed right now, is intended to provide a vehicle to the Supreme Court to overturn Roe and Casey. There's been a lot of confusion and misinformation about this bill. I'm going to link two articles in the show notes that represent sort of two different polls about it. One is an article, and they're actually a series by Mark Joseph Stern in Slate, that the one I'm going to link has the headline, Georgia law, and this is HB 481, criminalizes abortion, subjects women to life in prison. I don't think that's correct.

0:18:02 Andrew: I'm gonna, I'm gonna

[0:18:03] tell you why. Um, but, but I don't think it's entirely, it, I don't think it's wrong to sound the alarm, but I think it is, it is wrong to say that this law definitely

[0:18:15] has that effect, for reasons that, that I'm going to discuss on the other side, is, uh, an article in the Washington Post from Deanna Paul and Emily Wax Tibideau that says flatly that Stern is wrong and that women are not prosecuted under HB 481. That is also incorrect. That is overly optimistic. So I don't endorse either

[0:18:41] of those two takes. And look, both articles are not, right? I mean, this is not an example of, you know, Jill Stein, right? Like this is not something that I truly believe everybody writing here is writing in good faith. The Georgia law is supremely complicated and confusing, um, and it, it, this is the answer to the question that you asked, uh,

[0:19:06] from a couple of episodes ago, which is, could the Supreme Court just define, uh, fetuses as persons under the 14th Amendment, uh, and thereby, you know, wreck the

[0:19:19] the whole landscape. The, that's what this Georgia bill does. It's being called a six-week abortion ban, and that's in there. Um, and, and I'm going to talk about everything that is in the law, but what's sort of weirdly flown beneath most people's radar is the first thing that this bill does is define a bunch of terms. So it defines an unborn child as any member of the species Homo sapiens at any stage of development who is carried in the womb. So I, I guess at least we're spared the fact that, you know, it doesn't apply to to frozen embryos, but that means, right, day one, a two-celled blastocyst is

[0:20:03] now a human being, or will be as of January. That also means if you were able

0:20:09 Thomas: To like do this in a scientific way and like grow a baby in the lab, then it's

[0:20:15] not a person or something? Yeah, that would not be a person, right, uh, if you, yeah, if you, if you take a frozen embryo and put it in some kind of artificial womb, right, which I

0:20:27 Andrew: Look, I don't know what the technology permits now, but but that doesn't strike me as difficult

[0:20:34] technology, if not existing, right? Yeah, all other sorts of things. And let's be clear here, calling a blastocyst a human being is crazy, right? And not just crazy from a scientific perspective.

[0:20:50] What if you have a pregnant woman in prison, right? Are you now saying that the blastocyst has habeas corpus rights? Yeah, right, like it would have to, it's being, it is being held in prison despite the fact that it hasn't committed a crime, right? I mean, it's, there are an an almost infinite number of absurd deep dive, uh, idea, Siamese twin law. Yeah, let's put it on the whiteboard. Yeah, so that's what it defines.

0:21:24 Andrew: It then defines a natural person as including an unborn child, and it defines abortion as the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that the termination will, with reasonable likelihood, cause the death of an unborn child. And again, unborn child being defined as clump of, you know,

[0:21:49] literally two-celled blastocyst.

0:21:52 Andrew: That definition, and this is an area where Stern is 100% correct, that definition is meant to get around a 1998 case in Georgia called Hillman

[0:22:04] v. State. This is a Supreme Court decision, and it involved a woman, 18 years old, desperate, who was eight months pregnant, and shot herself in the stomach in order to terminate her pregnancy. Oh, jeez. Yeah. And the state of Georgia decided to prosecute that woman. Um, I, I, cannot begin to imagine under what circumstances a prosecutor would say, "Yeah, that's the kind

[0:22:35] of person that needs to be locked up," um, somebody who's, who's desperate and, uh, and and in as bad a circumstances I could possibly imagine, but, uh, nevertheless, they prosecuted her for, uh, and charged her with performing

[0:22:48] a criminal abortion on herself, and the argument That went, and, and by the way, trial court convicted, appellate court upheld the conviction, Georgia Supreme Court reversed, and the Georgia Supreme Court looked at the language of the statute and said, under the language of the statute, it is very clear there's... There's the words, the statute is written in the third person, clearly indicating that at least two actors must be involved, right. And then, that meaning, you, you could not charge somebody with performing a criminal abortion on themselves. And the reason is the statute, as it is presently written in the Georgia law, says a person commits the offense of criminal abortion when he administers any medicine, drugs, or other substance whatsoever to any woman, or when he uses any instrument or other means whatsoever upon any woman with intent to produce a miscarriage or an abortion. Yeah, that

[0:23:49] seems pretty clear. Yeah. So the language that says "to any woman" or "upon any woman" has now been deleted, and that means, under

[0:24:02] the definition of abortion. Okay, the definition. And so that's where it's almost like they're

0:24:08 Thomas: Denying, uh, women's agency came back to bite them. They're like, they couldn't imagine women would have agency in this process at all. They're like, well, wait a minute, we need to, we need to acknowledge they have a little bit of agency so that way we can punish

[0:24:20] them more. Yeah. And so, so Stern is correct to point out that the definition of abortion deliberately

0:24:28 Andrew: Deletes that third party language. That was, you, what was the basis for that decision? Where he's wrong is that Georgia law does not change that particular definition of criminal abortion. So in other words, right, while abortion is now defined in such a way that you can commit an abortion against yourself, the statute defining that is 16-12-141. The immediately prior section is 16-12-140, 40 which covers criminal abortion, and this law does not change that. So my reading of the Georgia law, you cannot charge a woman with performing a criminal abortion

[0:25:12] on herself, because the law only changes the definition of abortion. Now, where Stern is correct is that in changing the definition of person,

[0:25:25] you now run afoul of the problem that, uh, terminating that blastocyst, terminating that fetus is murder. And here's the language of the Georgia murder statute, uh, the, the homicide statute, 16-5-1. A person commits the offense of murder when he unlawfully and was malice of forethought either express

[0:25:52] or implied, causes the death of another human being. So if a natural person means any human being, including an unborn child, it seems pretty clear to me that this statute means that when you undertake

[0:26:11] to have an abortion in the state of Georgia, you have now murdered a human according to the law. And if that wasn't clear enough, Section 6 of the bill, that amends a different section of the code, 19-7-1C, which governs the recovery for homicide of a child. Okay. And it adds a specific section and says, for the homicide of an unborn child. Right. And says you can get civil recovery going back to, that begins with the date at which a fetal heartbeat or fetal cardiac activity is detected. Right. So let's unpack that a little bit. Right. Under Georgia law, if somebody kills your

[0:26:55] baby, you can, an actual baby to whom you have given birth, right, uh, you can recover civil damages from them, right, um, you, and so, like, in addition to they're guilty of a crime, you're saying, right, yeah, yeah, you can also sue them because they've deprived you of your child. Yeah. Um, the law says you may now also

[0:27:20] sue if they have deprived you of your unborn child. Okay. The language there in the statute is the homicide of a child, including the homicide of an unborn child. Well, that implies that it is possible to

[0:27:39] commit homicide on an unborn child, right. Um, as of right now, it is not possible to commit homicide on an unborn child, child, because an unborn child is not a person. Um, this law would change that. And so, where Stern says you could charge a woman

[0:27:58] who gets an abortion with murder, I think he's right. I, I, I think the way in which it goes to... Oh, sorry. Yeah, go ahead. No, no, go ahead and ask. Well, I, you know, thinking

0:28:11 Thomas: About it a different way, how would this, all this interact with, like, if you are, maybe you're a pregnant woman who, like, wants to have a child, but somebody involuntarily aborts your child in some way, either, who knows, I don't know if it's car acts or an actual, uh, forcing you to have an abortion somehow, that should still be punishable right, so how does the law deal with that? It's not as though that's like a free, you know, under the liberal paradise that's, that's fine, because there's no, yeah, and keep in mind,

[0:28:43] right, this is consistent with being pro-choice, right? Yeah, yeah, of course, yeah, we're, we're just curious legally how it defines, how it accomplishes, and the answer. Right, and the answer is that the specific statutes will say, right, that, you know, and they vary, but in many states

0:29:01 Andrew: It will say, you know, killing a pregnant woman is considered a double homicide, right? But that's just because they've written that into the law. And it's, in my view, again, perfectly reasonable to do that because, again, pro-choice. The woman was choosing to have a child, and then the bad actor took that choice away from her. So the answer is that you don't have to navigate this minefield of is the fetus ever considered a person for the application of the statutes, because, again,

[0:29:42] it's unworkably crazy. Let me give you a super, super easy example, right, under the existing laws in every state if you were to discover that a mom was feeding her three-year-old nothing but cheetos right

[0:30:00] like, you would then say, okay, that, that is right. The thank

0:30:06 Thomas: You for saying Cheetos and not McDonald's because... Because that would have definitely implications for me.

[0:30:13] I'm just picturing Arlo drinking like little pureed quarter pounders right now.

[0:30:19] Yeah. But seriously, like classic criminal neglect of a child. Right. You are not giving a child a nutritious meal. Well, in Georgia, if this law goes into

0:30:31 Andrew: Effect, you could now prosecute a woman who eats nothing but Cheetos during her pregnancy. Right. And

[0:30:37] that's madness. It's insane. No one would do that, but you could, right? So the issue that I take with Stern is not that under the law you could not prosecute women for committing a homicide against their blastocyst or fetus. Um, you could. The

[0:31:03] issue I take is the idea that the text of this bill makes that clear. I do not think that it makes it clear. I think it will be up to zealous prosecutors to decide. They're going to do that. Now, if you're on the Stern side, you would say, uh, the Hiller case kind of seems to, like, if they

[0:31:21] prosecuted the poor woman who shot herself in the stomach, I'm pretty sure they're going to prosecute a woman who gets an abortion. And, and, and that would be a good argument. Right. I, I, I wouldn't be able to, I, I do want to take a tiny, it's not even a rabbit trail, uh, to, to talk about the, the standards and why I think it would be murder, right, because you might say, sorry, why you think, specifically, what would be murder? Uh, getting an abortion? Getting, okay, yeah, you, just, yeah, you're going fast through a lot of stuff, so I just want to make sure which particular thing you're talking about. Right, I'm glad, I'm glad you did. Um, so, yeah, yeah, getting an abortion would be murder

[0:32:01] in Georgia. And you might say, well, are you sure that it would be malice aforethought, right? And, and the reason... Because, you know, you're not doing something maliciously. And the answer is how malice is defined in the statute, right? So again, 16-5-1, express malice is the deliberate intention unlawfully to take the life of another human being. And again, remember, human being is now defined as including blastocyst, which is manifested by external circumstances capable of proof. So all you have to prove to get express malice is I intended to take the life of this

[0:32:41] blastocyst. How did you intend to take the life of this blastocyst? Well, I took a morning after pill that, you know, right, I mean, literally anything where the intent is to terminate the blastocyst or fetus is now murder, right, like that seems very clear to me that that is now expressed malice under the Georgia statute. So, and case you were wondering, subsection E, a person convicted of the offensive murder shall be punished by death, by imprisonment

[0:33:13] for life without parole, or by imprisonment for life. Those are your options for the punishment for murder in the state of Georgia. Um, and now, again, right, is Is the extreme harshness of the punishment maybe a deterrent from a zealous prosecutor

[0:33:32] wanting to go after a woman who gets an abortion. Uh, maybe. Yeah. Do you work a plea deal on your... Oh my god, yeah, yeah, you could, that's exactly right. Um, that, that that you could force women to plead to lesser included offenses. I

0:33:51 Thomas: Think you can plead down to being a handmaiden in a... important, important, uh, man's house. And I'm

[0:33:57] sorry, I might be confusing Handmaid's Tale with... I, I don't know, I don't know, you might be, I'm not actually sure. So there are other sections of this bill, uh, that clearly

0:34:10 Andrew: Contemplate, even though So nothing in this bill, like I said, nothing in this bill changes the definition of criminal abortion.

[0:34:17] Nothing in this bill explicitly makes any new crimes, but there's a provision of the bill that turns over medical records relating to abortions, because we're going to talk about the

[0:34:29] abortions that are permitted, they're not a lot, under this bill, that require those medical records to be turned over to local prosecutors. I can't imagine why you would do that unless

[0:34:42] you were envisioning those prosecutors bringing charges. There are affirmative defenses that are outlined in the bill, and an affirmative defense is exactly what it sounds like. It is when you are a criminal defendant and you say, I am guilty under this law, but I then can bear the burden of proof. Right? You, usually the government bears the burden of proving you, uh, guilty beyond a reasonable doubt, right, you're innocent until proven guilty. An affirmative defense switches

[0:35:13] the burden around and you say, okay, um, I, I might be guilty under the facts of the law, but if I can prove that this particular affirmative defense applies, then the law doesn't apply to me. And, and the classic example of that, right, is self-defense in the case of murder, right? Um, you

[0:35:32] you're, you're guilty under the statute of having killed somebody, right, but the excuse is he was going to kill me first, right? So, uh, the, the way in which that plays out is you

[0:35:46] as the defendant have the affirmative duty to show that you were acting in self-defense, and if so, that excuses your murder of the person who was attacking you. So the, the bill sets out a number of affirmative defenses. This is another area where I think, the, where I think Stern gets it wrong, uh,

[0:36:12] but, but, you know, I'm, I still, I think it was clever for him to read all the way through. Um, the affirmative defenses by their nature. So what Stern says, I guess, I guess I should start with that. Stern says, okay, look, the fifth affirmative defense that this law establishes is, uh, it's an affirmative, that a woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency. And that shall be an affirmative defense to prosecution, quote, under this article, end of quote. And Stern says, well, look, you wouldn't need an affirmative defense on the woman unless you were planning on charging women. And I don't think that is correct here.

I don't think it's correct because this amends Title 16, Chapter 12, Article 5, right? It specifically says under this article, this is not the article that applies to the homicide statute. This only applies to criminal abortion. And so you might still have as an affirmative defense for a doctor who was charged to say, oh, my affirmative defense is that my patient came in and she told me that the abortion was, she reasonably believed that the abortion was the only way to prevent a medical emergency. Um, so Stern says he thinks that this, that that affirmative defense means that they intend to charge women under that section, and I don't think the text of the bill bears that out. Now

0:37:38 Andrew: That is small comfort, we've talked about the rest of it, but, um, but I think it's important, uh, to

[0:37:44] be, yeah, I, I agree, I, I don't know what you're playing, like, if we need to talk about the Alabama law first. But part of

0:37:50 Thomas: This feels like picking out the minor differences, uh, in like how the law is, is going to work under President Sauron and, like, I'm just, just a weird guys, this isn't gonna happen, right, like, isn't the whole point of this to get the Supreme Court to change that, like, this, so I don't want to mess up your order, but

[0:38:09] like, this isn't gonna be the law, is it, it, this is

0:38:16 Andrew: Correct, like right now this very obviously is prohibited by Roe and Casey. The factual findings in, in both the Georgia and the Alabama bill that we're going to talk about next explicitly acknowledge that, right, and say, hey, this is a vehicle to challenge rowan Casey. The reason I am going through all of the implications is because if I can go through these, then I promise you the litigants before the Supreme Court will go through these, right? Um, and the path to the Supreme Court, just to, just to refresh everybody, we've, we've talked about this in a number of cases, um, these, these laws will be challenged in federal court, uh, they will be enjoined from going into effect by the district court. That injunction will be upheld by the circuit court of appeal, even the most conservative circuits, right, even the Fifth Circuit, the 11th Circuit, the, the, the most conservative circuits in the country, because those courts are bound by vertical precedent, right?

[0:39:18] No matter how much the 11th Circuit hates Roe v. Wade and Planned Parenthood versus Casey, right, they don't get to change that law, they don't get to change that law. That's exactly right. So easy entry of an injunction at the district court level, easy upholding of that decision at the, at the circuit court of appeals level, and then, uh, it will go to the Supreme Court again on a, because these are going to show up in an injunctive posture, they're going to get to the Supreme Court very, very quickly. I'm going through all of this because I think, as again, as bad as the Supreme Court

[0:39:55] is, this Georgia law is so terrible and so ill-conceived that I, I can see the Supreme Court, right, I can see it being a good vehicle if you think that That the Supreme Court is going to do what I predict it will do, which is John Roberts is going to craft a, quote, compromise that will be spun in the media as reaffirming Casey and preserving the central holding of Roe, that will, in fact, mostly gut Casey and

[0:40:27] Roe and will expand the undue burden test in some way that permits horrible stuff. Stuff. So what else does the Georgia bill do, because defining a fetus as a person is just one of many, many things that, that this bill does. Um, and in that, in the case that, that I've talked about, I can see parts of the Georgia bill being struck down and parts of it being upheld. So first, defines a fetus as a person. There's no restriction on that, I'm about to talk about the heartbeat beat thing in a minute, but, uh, but for purposes of charging somebody with murder, um, there's no, right, any, an unborn person is a member of the homo, speed, of the, of the species Homo sapiens, of any age, that's implanted in

[0:41:19] a womb. Um, so that includes, now even if, even if it's totally not viable too, like, even if it's, you know, so, like, if medically your, your, your fetus

0:41:31 Thomas: Is just not viable and you're, you know, that you're getting, I guess what's, I don't know if it's technically still an abortion, but it's like, it's not happening, you're clearing it out, a doctor's doing it, is that still murder? So

0:41:44 Andrew: The exceptions that are provided in the law, this is a great transition to the next point, are removing a dead fetus caused by a spontaneous abortion, okay, right, so that is miscarriage, the fetus is dead, uh, or removing an ectopic pregnancy, or if a doctor certifies that the pregnancy is medically futile, and again, that is very, very narrowly, in, in terms of, of how it's defined, but, but yes, if, if the fetus is dead or dying, there

[0:42:23] is at least that exception. So I guess if you're I just wasn't sure because you said there was no restriction, and the way it was defined, it didn't sound like it, but okay. Okay. Yep. No, no, no. Good, good, good, good point.

0:42:34 Andrew: So the second section of the law bans abortion after a detectable

[0:42:40] human heartbeat. And again, you might ask yourself, well, if we've defined a fetus as a person, what's the whole point of having the heartbeat section? And the answer is because the Supreme Court can strike down parts of the law. And so, this has numerous severable provisions. So, if the Supreme Court strikes down the fetus as a person, but leaves intact the fetal heartbeat, that

[0:43:08] would effectively make no difference, right? So, they're throwing a bunch of stuff at the wall to see what sticks, basically. Exactly right, okay. And so, "detectable human heartbeat" is defined in the statute as "embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac." Um, I have reached out to Dr. Jen Gunter, um, who has

[0:43:33] uh, expressed an interest in coming on the show, and we're going to try and really, all right, get her on. Yeah, I love her. I'm not a medical professional, yeah, uh, but but I went everywhere says you get fetal cardiac activity at six weeks of pregnancy. I'm gonna talk about that in a second, but um, I'm going to link a 2005 journal article from the Journal of Fertility and Sterility. Um, as far as I can tell, again, I'm not a medical doctor, I'm not competent to be adjudicating it.

[0:44:05] The title of the article is, uh, involving fetal cardiac activity, uh, in four weeks following IVF,

[0:44:18] in vitro fertilization. Okay, um, now that may be, that that may be because of what I'm about to describe next, which is how fetal age is is calculated. Um, my understanding is that fetal age is calculated dating back to the last period, right? So in other words, a woman's cycle, right,

[0:44:43] becomes fertile several weeks after their last period, right, in the middle of of the cycle. And so at that moment, right, you you're officially two

[0:44:55] weeks pregnant. And it seems a little weird, but but when we're talking about numbers that are this small, right, when you're talking about detecting fetal cardiac activity at six weeks, you're

[0:45:08] really talking about four weeks after you've had sex. And if four weeks sounds familiar, um, it's probably because 50% of our audience is going, yeah, that's about

[0:45:20] how long my cycle lasts. Um, so, so yes, right, it it is at the moment in which you have a missed period, which again,

[0:45:33] for is routine, commonplace, all the time, right. Um, it could be too late, that could be past the moment of of fetal cardiac activity. Um, the earliest possible period in which a woman might even even potentially know that she was pregnant in an unintended way, right? The only way in which you would, you would know is if, you know, it's the the reverse side, right, that that, um, you know, we're we're

[0:46:04] both parents, like when, when, uh, when your wife goes through, you know, charting and keeping a calendar and saying, okay, right, like, that's that's when you know at that earliest stage. But

[0:46:17] if you don't, right, if you're in the kind of situation where the pregnancy is unexpected, it's almost impossible for you to know as a woman under the… uh, yeah, if you're not like dialed into it, and even, you know, a lot of the pregnancy tests aren't even accurate, that that

0:46:38 Thomas: Early. I mean, it really is just so outrageous to think that this is at all reasonable, that that women would even know they're pregnant oftentimes this early. Yep.

0:46:50 Andrew: Those abortions are banned with two exceptions, okay? The exceptions are

[0:46:56] uh, and we're going to go into them, uh, exceptions for rape and incest, uh, defined in the statute as, uh, "the probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape

[0:47:18] or incest." Um, I, I don't think I need to speak to that. The idea that you would have to put, to put the onerous burden on a young woman, on a girl who's been the victim of incest in her family, to have to go file a police report is just unconscionable.

[0:47:40] Nothing need more to be said about that. It also gives lie to their entire worldview, because there's absolutely no reason under their worldview that there would be an exception for rape or incest. Right. And the Alabama law?

0:47:52 Thomas: Rape and incest, then murder is okay? That's not how philosophy works, like that, but it

[0:47:59] just shows that their whole philosophy is just not right. Yeah, no, that's right. And the Alabama law does not contain that exception. Yeah, for that reason, um, well, you know, know we'll we'll get to that. Um, medical emergency is defined incredibly narrowly, and this must be the result

0:48:17 Andrew: Of a group like ALEC, because, um, this definition is repeated in the Alabama law. Here's how both cases, both laws define medical emergency. Alabama,

[0:48:30] there was a, there was a an amendment, so it adds some stuff on the end of it, but, but, uh, but the core definition of medical emergency, quote, "means a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.

0:48:53 Andrew: No such greater risk shall be deemed to exist if it is based on a diagnosis or claim of mental or emotional condition of the pregnant woman or that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial or irreversible physical impairment of a major bodily function." So that's saying like

[0:49:11] she can't threaten like, "I'm suicidal if you make me keep this." Wow. Yeah, postpartum depression doesn't count, gestational diabetes doesn't count, preeclampsia doesn't. Well, the woman saying, "I mentally do not want this child and I'm not, uh, emotionally ready for that," any any amount

0:49:30 Thomas: Of of the woman's, uh, uh, choice and and view of her own state doesn't

[0:49:36] count under this law. Yep, yep. Wow. So that's that

0:49:42 Andrew: Is the abortion restrictions. Uh, I'm going to go quickly through the rest of the bill, again,

[0:49:48] because of the the severability parts. Um, there is the same restrictions as the Texas abortion law that that we've talked about, uh, that require an abortion to be performed, uh, in a licensed hospital, licensed ambulatory surgical center, or health facility licensed as an abortion facility by the Department of Community Health and by a physician who is so licensed and has admitting privileges. Um, we know the effects of those, the Supreme Court has been very, very clear that that constitutes an undue burden under Casey. But again, another thing to throw at the wall, the bill provides

[0:50:25] for civil liability of the doctor to the woman. Um, here's what that is meant to do. That is meant to encourage these guerrilla pro-life tactics of going in and saying, "Come on, I need you to to perform an abortion," and you do not know if that is going to be a pregnant prayer warrior

[0:50:50] who the moment you perform the abortion then says, "Oh, great, well, you're now civilly liable to me for having killed my baby." Um, yeah, nobody's talking about that. That is deliberately but there's no other way, there's no other reason to for that to be in there. Um, the strangest part of this, which, which is, deadbeat dad protection.

[0:51:13] You might be asking, "What the hell is that doing in an abortion bill?" And the answer is, right, if a blastocyst is a baby, is a child, then you now owe child support for your blastocyst, right? So, "as used in this chapter, the term 'child' means child or children, including any unborn child with a detectable human heartbeat.

[0:51:36] And then they have to add to the bill, because obviously, the uh, the entirely male, uh, Georgia State Senate that voted for this, by the way, that is, that is true, every person who voted for this was was male. Uh "Notwithstanding any provision of this code section to the contrary, the maximum amount of support which the court may impose on the father of an unborn child under this code section shall be the amount of direct medical and pregnancy related expenses of the mother of the unborn child after birth. The provisions of this code section shall apply in full." Um, so, you know, we, that this is just another indication that we've

[0:52:14] said a blastocyst is a child, but but we don't mean that with our wallets. I mean, you know, come on. Yeah, and finally, um, and this is something I have never seen in a law before, there is a a provision to let zealots try and hijack the courts. Here's

[0:52:34] what it says: "Any citizen of the state shall have standing and the right to intervene and defend in any action challenging the constitutionality of any portion of this

[0:52:46] act." That's mind-boggling to me, right? Because the standards for intervention in Court, we've talked about this before, you have to have a distinct interest that is not represented by the existing parties. Wow.

[0:52:59] This bill says you get standing to intervene by virtue of being a citizen of the state. The only reason to do that is to encourage mega churches to come in, drum up and add thousands of people in, with separate requests to intervene when

[0:53:17] the lawsuit comes down challenging this bill. But, like, that's the only reason. Have you ever heard of that at

0:53:24 Thomas: All? I mean, can a law just grant anyone standing, at anywhere? How would that even I feel like standing should be a question kind of separate from the law, you know. It just seems weird

[0:53:36] that it It is. And And Article Three courts are a creation of the U.S. Constitution, right? So if this

0:53:42 Andrew: Is challenged in the U.S. District Court for, uh, you know, the the I, I don't, I don't know, know how many

[0:53:48] uh, districts are in Georgia, but, you know, say Eastern District of Georgia, right? Like, if I don't know how Right, because the, the court is going to defer to substantive

[0:54:02] Georgia law. Um, but I I, the question of standing is a, is a, is a constitutional judicial question, right? Like, you You can't—the state of Georgia cannot confer standing upon a federal Article III court. They just can't. So, yeah,

[0:54:20] but that—look, that's what people are going to try and do, right? Like, they are going to—and they're going to flood the court with requests to intervene. And when you intervene, you become a party, right? Like, that means you have to—I have two active litigation matters right now, right? And I have to, everybody who was a party to those cases, I have to give them copies of everything I file, right? Like they get all the pleadings. They get included on, you know, the email chains when we have settlement discussions and

[0:54:52] stuff like that, right? This would add thousands of people as parties to the litigation challenging the constitutionality of the statute. And it's something that we can't exploit the other way around, right? Because the whole point of this is to make life difficult on the judge. And so, you know, having thousands more abortion rights activists join into

[0:55:17] the case, right, that you're just compounding the damage, right? It's not that the court wants to hear from these people. The sole point is just to virtual mob and probably try and crash the online CME CF filing. Um, I've never seen anything like this before. I don't think that it's constitutional for the reasons we described, but yeah, um, but they're gonna try. Bizarre. So,

[0:55:42] so there's the Georgia law, and it, it notice that lots of the things that are being reported on the right, like, so they're things that are being reported are, well, you could travel outside the state and come back, and, right, and we got a, we got a question from, uh, from Dan Lindau about that, about the service members. Um, all of, of those things that you see in articles are extrapolations of the fact that, uh, the Georgia bill defines a blastocyst as a human being, right? Because, in the same way that, like, I can charge you with murder in the state, if you, know, you, uh, kidnap somebody and take them out of the jurisdiction and, you know, murder them in Kentucky and then drive back to Georgia, right,

[0:56:27] so that, that's the, the, the, the status under which So you're still under

0:56:33 Thomas: This law, you're there's no, I mean, if you go somewhere else to get an abortion, you're still under this law, you would still be a murderer. It

[0:56:39] it, again, it would be subject to how the prosecutors interpret that, right. You could

0:56:45 Andrew: Make an argument, right, that there's no nexus to the state because the actions occurred outside of the jurisdiction of the state

[0:56:52] of Georgia. That's what I imagine people would make, right? Right, I, I don't I want to be clear that the law is not clear. Hold on, yeah, I agree, but, like, isn't the fetus a citizen of that state, that you know, it's a person now? So, it's a person, but not a citizen. I actually looked this up, Georgia differentiates between persons, citizens, minors, non-citizens, citizens of other states, right? Because, yeah, at the first place I went to was, uh, whether, you know, now declaring the fetus to be a person meant that, you know, it had the right to bear arms, uh, under the Constitution

[0:57:29] you know, um, and, and it doesn't, right? Like, that, that interpretation How close are Republicans to issuing them a tiny little gun that they can have? Close. Yeah, pretty close. Okay. But yeah, so the only acceptable

0:57:41 Thomas: Medical procedure will be gun implantation, uh, agreeing that okay, we are low on

[0:57:48] time, uh, and I guess we need to talk about the Alabama law, right? Yeah, well, uh, let's do this super

0:57:54 Andrew: Quickly, because also, as, as of when we record this, the Missouri Senate has passed a law banning abortion after eight weeks, right? The Alabama law, HB 314, has passed the Senate. It is headed to anti-abortion Governor

[0:58:13] Kay Ivey, who, she will clearly sign this into law.

0:58:18 Andrew: Like the Georgia legislation, it does not take effect for six months because they recognize that it's going to be enjoined. It's going to follow the exact same proceeding. The Alabama law is 100% straightforward. It's terrible, but it's straightforward. It bans abortion outright from

[0:58:37] day one, from the moment of conception.

0:58:42 Andrew: It has no exemptions for rape or incest. It only has an exception for the health of the mother, again defined supremely narrowly. There's an amendment on

[0:58:54] that says if you get two doctors to certify that you have a medical, uh, uh, a mental condition that, you know, that, that, that, that they added that sort of back in. But, uh, and the other thing is the Alabama bill definitely exempts women. So this is another example, I think, of the, of the hypocrisy and and failure to, uh, be philosophically consistent. It says no woman upon whom an abortion is performed or attempted to be performed shall be civilly or criminally liable. Furthermore,

[0:59:25] no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions. Um, again, that makes no sense if you think a blastocyst is a baby, right? If, if a clump of cells

[0:59:38] is a human being, then, then the woman who goes in for an abortion is, right, she's hired a hitman to kill a human being.

0:59:47 Andrew: You know, the fact that pro-life advocates are uncomfortable with punishing

[0:59:53] women indicates, you know, the intellectual inconsistency. We know that. The Alabama law makes it a Class A felony to perform an abortion. That is a minimum 10 years in prison, maximum life imprisonment. It makes it a Class C felony to attempt to perform an abortion, that's a minimum year and a day, maximum 10 years, so

[1:00:20] these are not, um, these are very, very serious criminal offenses, and, um, and some version of, of this is, uh, is very likely to be upheld by our right-wing activist Supreme Court. So, I promised a good depressing episode and I've delivered. So, there you go.

1:01:04 Thomas: Something more low profile. They'd rather pretend, you know, have some facade of Roe and Casey still sort of around, but effectively allow states to eliminate abortion. So, what do you think's going to happen? I mean, it almost seems to me that these laws are too evil for the Supreme Court to even want to have them be the poster fetus for this issue, right? I mean, what do you think's going to happen, or, or is it that they can grant cert and then pick them apart in a

[1:01:35] way that, that will give them what they want? Yeah, um, I, it, it what it, what it does is it creates the Overton window

1:01:47 Andrew: Around the discussion, right? So if all of these bills are coming up to the Supreme Court at around the same time, right, which they will, uh, they will all be consolidated into a series of omnibus

[1:02:00] cases, and it will give, uh, somebody like Roberts the opportunity to say, well, look, like, we struck down the Alabama bill that barred all abortions, you know, but we permitted

[1:02:13] you know, the yeah, we get oh, uh, Kavanaugh sides with the liberals on, right, right, you know, yeah, yeah, exactly right, and, um, and, and, and, and you are correct, it's why I, I wanted to go through this, that like,

[1:02:28] think about where the, the, the current status of the law, right, is, is bad right, we, we described it in Georgia, right, uh, banned after 20 weeks, and you disseminate this pamphlet that lies about, you know, uh, the, the medical risks. Um, we've seen states, you know, try to, to varying degrees, to pass, you know, uh, requirements that, uh, uh,

[1:02:53] you know, imposed unnecessary ultrasounds and the like, right? So all of that's really, really bad, right?

1:02:59 Andrew: Now, the difference between 20 weeks and, and zero, four, six, eight

[1:03:05] weeks, is very seismic. Yeah, it is. It we are, we are looking at a situation where the, the quote, best case scenario at the federal level is still going to drastically change the landscape and curtail women's ability to but do

[1:03:23] you think they're going to grant cert on these horrible they absolutely will grant cert on all of them, because, because the alternative will be to let the lower circuit court opinion stand, right? They're

[1:03:36] not going to want that.

1:03:38 Thomas: Well I'm saying wouldn't they use a different law like I guess I'm wondering if they're going to shop around you know like wait for a law that's not so horrible or you're saying they are going to grant cert and just uh you know use some of them for some of these horrible laws for cover to say oh yeah that's that's bad we side with the liberals and then you know somehow eke out um parts of it to to restrict abortion in

[1:04:03] less visible ways? As do I have that? Yeah, they'll grant, they'll grant can't start on all of them and consolidate them into one. Oh, I don't even know, realize I could do that. Okay, yeah, yeah, interesting. So they will be able to pick and choose from among all of the laws in a, in a single ruling, and then it's, isn't it kind of a mess to see, like, okay, they've ruled a certain way, which inevitably because they're evil is going to be horrible, and because we didn't vote, vote in 2014, which would have saved all this, uh, it's going to be horrible, um, and then from there it's like they're gonna have to pick apart, I guess, on a state level, all

[1:04:42] right, what survived from this law. Yeah, so, so that's exactly right, like they will, they will, they will

1:04:48 Andrew: Describe the new ruling, right, and then they will apply that to each of the four

[1:04:54] or five or six states, or however many cases have been consolidated, and say, thus applying the undo undo burden test, or, you know, what the the coercively undo burden, or, you know, whatever they call it, right, uh, applying that we hold the following. And then, you know, they will strike out either laws in their entirety or various provisions of those laws. So it's going to be a massive, you know, 300 page opinion, right, that goes through, pronounces what the rule is, uh, applies that to each of their various statutes, and then, of course, you know, you'll have, uh, the concurrences from

[1:05:39] you know, the the super evil wing, uh, saying, I don't see any problem with, you know, just allowing Alabama to ban all abortions all the time. And And, you know, and then, you know, obviously you'll have the vigorous and impassioned dissent from the sane contingent of the court that, you know, will at least preserve for posterity at a time in which the Supreme Court is not dominated by right wing political hacks. And

[1:06:11] I hope you and I live to see that time, Thomas. Oh, God, that's a depressing thought. Hey,

1:06:17 Thomas: Just FYI, it is actually enough to just not be a Republican that qualifies you as the better choice and worthy of a vote in a binary choice, and a binary choice. Hey, in the primaries, we can argue all we want, who's the best, who's the best, sure. Once you get to that binary choice, not being a Republican, it does actually

[1:06:35] matter quite a bit. Quite a bit. All right. Could not agree more. Okay well yeah depressing, as promised. And, uh, again, go back, to refer back to a couple episodes ago, where you talked about the state by state strategy, because it sounds like optimist prime Andrew still thinks that's a viable thing in this day and age. I do. Okay, all right, and, you know, what, you make a strong case, so I'll, I'll go with you on that one, uh, it's negatron, can agree on that one, uh, all right, uh, thanks for listening, I know this was a depressing one, we've got to thank our new, new patrons, let's cheer everybody up, you've got a lot of awful movies to go listen to, if you haven't already, patrons, check it out, and we've got to thank our new patrons at patreon.com/law. And we begin with...

1:07:39 Thomas: Earl Jones, Prescription of Innocence, Precious Little Cinnamon Bun.

[1:07:45] Nice.

[1:07:47] Nathan Bodnar and Liam Skoda. Your turn.

1:07:52 Andrew: All right. And thank you to Bar is my least favorite pilot. Rosenstein is a close second. Merlin

[1:07:58] Storm, Wobbles, Julia Farnsworth, Ty Wheeland, Johan Falcon, Jack, the Ask and Tell Project at askandtell.com, LGBT service member stories. Oh, that is a fantastic idea, I'm gonna head on over, askandtell.com, love that, uh, increasing

[1:08:17] my knowledge, law skill, to pass the bard exam, good, Dnd cross, uh, over there, tacos are a sandwich, change my mind. Oh, I don't, I, we need you, and I need to, need to debate that, I don't, I, I don't think tacos are a silly, though, but, uh, is that a pressing question? Is it? No, we can talk, we can talk. And Nathan Dickey. All right, thank you, folks. Opening Arguments is brought to you by Zip Recruiter. Folks, I don't know if you've ever had to hire anyone. I have. It's, it's

1:08:48 Thomas: Kind of sucks, I'll be honest, hiring is not fun. I remember there was one particular round of interviews I went through for a position that was, that I was hiring for at the state, that was, it was murder. I mean, there were no good candidates, and the day just crawled by as I sat in there interviewing these people that just were not qualified for the job. Don't let that happen to you. The best way to avoid that is ZipRecruiter

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[1:10:16] time for the thrilling conclusion of TTTBE number 126. Oh, I don't know about this one, how do I, do oh, no associate this firm has ever failed the bar exam, no kidding. Okay, so this was a criminal trial in which the evidence shows that, um, a

1:10:36 Andrew: Uh, neighbor entered into the defendant's home, uh, that neighbor had a knife and said, hey, I'm gonna kill you, uh, defendant runs up to his bedroom, gets his gun, comes down and says, hey, back off buddy. Uh, but, but she doesn't stop, she's, she stabs him in the arm, and then he shoots

[1:10:54] twice.

1:10:55 Andrew: She then falls to the floor and, and, quote, lay quietly moaning, end of quote. After a few seconds, then the defendant fires a third shot into the neighbor. And the jury found that the neighbor died from the third shot, died instantly from the third shot, and that the defendant was no longer in fear of being attacked by her when he fired that third shot, right, whimpering on the floor. Um, what degrees of criminal homicide, if any, can the jury properly convict the defendant, uh, you eliminated a, attempted murder only, which, I, that was a gimme elimination, good

[1:11:33] I would hope so, right, uh, because the person's dead, so it's, right, the crime is either murder or manslaughter or nothing, it couldn't possibly be attempted murder, uh, and and you eliminated no degree of criminal homicide, also a good elimination, because, as you anticipated, once that imminent fear of being attacked goes away, right, and that's stipulated

[1:11:58] as a finding in the, uh, in the factual particular question, um, then you cannot assert the affirmative defense of self-defense, which, you know, we talked about earlier in this episode, um, so, uh, it's definitely a crime, um, and the question is, is it manslaughter only, or is it murder or manslaughter, you chose C, murder or manslaughter, and I am pleased to tell you, you got this

[1:12:23] one correct, what a weird question, yeah, whether defendant is guilty of murder or manslaughter depends upon whether the jury finds that he fired the third shot in the heat of passion, uh, as provoked by the earlier attack, that would make it manslaughter, or whether that was premeditated, right, um, and the fact is up

[1:12:41] for grabs, right, it's capable of being read either way, um, you know, you've got, you make a case like the person

1:12:47 Thomas: Stopped and ate just like a delicious sandwich and was like, "Oh, I'm very passionate about this sandwich," and then like fired a celebratory shot, and then but it was still the heat of passion, but it's just over the sandwich. Maybe I'm too hungry for this right now. It might be that I'm, I'm too hungry for this question. Sorry. I withdraw the question.

[1:13:06] Withdrawn. Okay. No, is the answer to your question. It has to be heat of passion provoked by the other person. This was a very weird question because I, you know, if it had been murder only or manslaughter only, you know, that would have been of interest, you know, if it was, no, if C was murder or manslaughter, which it was, and D was murder only, then I would have had a really hard problem with it because I wouldn't have known whether or not manslaughter is necessarily necessarily even still a possibility once you once you know that they just killed somebody who was not even a danger to them. It wouldn't have surprised me to learn that manslaughter was off the table, but like, they gave me a break, I guess, and we're like, we're not even gonna entertain that. What was the heck, I just feel, I, I feel like, too, this is, you know, I

[1:13:49] feel like they handed me a freebie. I don't know, I don't, don't you think? I think that's, I think that's right. Look, like, like, the question was designed to see if you recognized that the circumstances surrounding

1:14:09 Andrew: The affirmative defense of self-defense don't interplay, don't affect the underlying mens rea of manslaughter versus murder, right? Right. Like in other words, you know, obviously anybody taking the bar exam, I couldn't imagine anybody taking the bar exam going missing out on the fact that, you know, the question says he was no longer in fear. Yeah, exactly. You know, at the moment where he's

1:14:40 Thomas: No longer in fear. I feel like the test booklet just felt really bad about some sort of real property question that it already asked and was like, "Well, we'll go easy, and we'll go easy." So, all right, I got it right. But hey, they all count the same.

[1:14:52] They all, even the ones that I just guessed. Lawyers are going to miss this because really, um, you know, probably not. Can we find one to miss it and make me feel better? All right, we'll do that. Let's, let's, uh, hop in the time machine. Yeah, yeah. Oh, I'll hop in the time machine and maybe pick a losing answer. I don't know, we'll see, we'll see what the Andrew decides once he time travels uh but uh yeah thanks for playing uh and andrew who is this week's winner

[1:15:17] Meanwhile, at the Hall of Justice. So Thomas, we had a lot of folks play along, long this week.

1:15:23 Andrew: And a lot of people gave answers kind of across the spectrum. A lot of folks joined you on C, but as promised, we're going to go with somebody who did exactly what I predicted would

[1:15:35] happen. This is Frank Jimenez, at F-R-A-N-J-I-M-E-S-E-C-S-C-O, who says, going with B, in this week's TTTBE, it seems like classic heat of passion for manslaughter, not murder. Would have argued for D if he had still feared for his life before firing the last

[1:15:53] shot. Well, Frank is right on the last part of that, that last sentence, um, but the factual inference that he draws before that, that it is necessarily heat of passion is

[1:16:06] why he goes for B, B, and not the correct answer, C. A jury could find that it was heat of passion, which is why the manslaughter is a permissible option, but they could also find that the heat of passion had cooled, that standing over the body and firing that third shot means that he was no longer responding to the heat of

[1:16:31] passion. And because the jury is free to draw that factual inference, that's why we go with C, Rather than be It was a really, really good thought process And it's why I wanted to highlight this It just happened to come up with the wrong answer. So congratulations to Frank on being this week's winner. And everyone give him a follow on

[1:16:49] Twitter That is at F-R-A-N-J-I-M-E-C-S-C-O Frank Jimenez. And congratulations on winning this week's TTTB.

1:17:00 Thomas: Alright, thanks for listening And it's like that old patron name That I think has changed now But was don't let this let this radicalize you, not lead you to despair, I think was the patron name. And I think that qualifies for these horrendous abortion laws. We've got to get power back and keep power and get the Supreme Court back. I mean, it's just it's so vital this way. We would not be here but for 2014 and 2016. We just wouldn't. We just wouldn't be here. And we we got complacent. So so that's all I have to say.

[1:17:37] see you we'll try to cheer up and see you on Friday you betrayed the law law

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