OA533: Roe is Doomed. Contraceptives Could Be Next

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 533. I'm Thomas. That's Andrew. How are doing, my friend?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: I'm doing great. I am buckled up. I've got my... I've like a bib on, you know? You know like one of those lobster bibs when you're gonna eat a bunch of lobster? That old, that sitcom, whatever joke? I've go that, but it's a deep dive bib. And I'm ready to just consume an Opening Argument's legal deep dive. Can you help me out?

0:01:39 Andrew: All right. Well, I have the mother of all deep dives for you, Thomas, with SB8, with the Supreme Court hearing oral arguments in the Dobbs case on December 1st, We are going to break down and explain the utterly uncontroversial opinion that is Griswold versus Connecticut that guarantees the right to contraception in the Constitution. And we're going to show that there are zero arguments for overturning Planned Parenthood versus Casey, for overturing Roe versus Wade that do not immediately also suggest you should overturn Griswold versus Connecticut.

0:02:31 Andrew: I really, really think this is important for folks to be educated about and to equip you with respect to the coming legal arguments. Do not think that it is a hyperbole to say that there are elements in the no longer fringe of the right wing that are coming for individual access to contraception. And if you think maybe that's a terrible idea, up.

0:03:01 Thomas: Well, what an intro. I guess that means we better get to our deep dive on Griswold v. Connecticut.

0:03:07 Clip: Down the law, down the law.

0:03:10 Thomas: Alright, Andrew! You've long promised us a deep dive of Griswold v. Connecticut. I can't, I feel like we already did, did we do like a swipe, you know, like kind of a bruh, like a little dive? Like a shallow dive.

0:03:18 Andrew: Yeah, we did. I think we did a, you know, wading through the pond.

0:03:25 Thomas: Yeah.

0:03:26 Andrew: Yeah, shallow dive.

0:03:26 Thomas: Teaching your kid to jump off a diving board Dive. Um, so here's the big one, what's, let's go for the big deep dive. Oh.

0:03:27 Andrew: That would be the... Yeah. So first, at the outset, Griswold is a 1965 case. I'm going to talk about cases even earlier. I just want to give kind of the same disclaimer we gave before episode 522 in that, in particular, particular when I'm quoting from cases and statutes with archaic language that, you know, we strive for inclusive, gender inclusive language on the show. With that in mind, Griswold versus Connecticut is the Supreme Court decision in 1965, 7-2, that struck down a Connecticut law that made it illegal to use or to aid and abet anyone in the use of contraceptives. OK, I will.

0:04:18 Thomas: Do. They have bounty hunters go after you. Yeah.

0:04:20 Andrew: They didn't have bounty hunters, but they did have the aiding and abetting language. And and and that was by anyone. Right. It was illegal in Connecticut to use contraceptives. Since this is going to be a long, deep dive, multiple parter, I want to tell you the punchline up front. And that is that the dissent, and we're to focus on the dissent written by Potter Stewart, will be indistinguishable from the majority opinion, the coming 6-3 majority opinion likely to come this May of 2022 in a case called Dobbs v. Jackson Women's Health. That is the Mississippi 16 week abortion ban in which I think the Supreme Court has plainly telegraphed that it will overrule Roe v.

0:04:24 Thomas: Wow. Yeah.

0:05:14 Andrew: Wade and Planned Parenthood versus Casey. By the way, side note, that 16 week Mississippi abortion ban is, of course, stayed from going into effect because it's blatantly unconstitutional. But, you know, six, six weeks is fine.

0:05:27 Thomas: Just because they didn't have the sense to add in another thing, right?

0:05:31 Andrew: Right. They didn't add on top of it the equally unconstitutional vigilantes part. But we've already talked about that. So it

0:05:31 Thomas: Yeah. Well, just to clarify though, I thought you said that part probably wasn't unconstitutional, right?

0:05:45 Andrew: Not I'm I'm using that as the shorthand. I think that the vigilantes probably isn't inherently unconstitional. Uh, we, we've talked about that being kind of the intersection of, uh, states can craft standing and states can grant statutory damages. So in and of itself, I don't know that the private enforcement is inherently unconstitutional other than the thing that they're enforcing and, and the statute. But the additional thing layered on top of it that adds those complications are that in those civil lawsuits, it precludes you from relying on Roe or Casey as a defense if they're ever overturned, even if they are legal at the time, which seems to me pretty clearly to be ex post factum.

0:06:09 Thomas: The thing they're enforcing Yeah, yeah, gotcha. Okay.

0:06:32 Thomas: Geez.

0:06:32 Andrew: Right. So it you are 100 percent correct to correct me there, because I do not want to be imprecise in the language, even though it's pithier to say that you've crafted the vigilante stuff on top. But I think the unconstitutional stuff you've layered on top of an unconstitional law are the specific ex post facto prohibitions on how the pregnant person can plead affirmative defenses. But it doesn't matter. SB8 is unconstititutional. It should not be allowed to stay. All but right, as long as we're being, uh, alarmist, um, let me say something. And, and again, uh, I want to say this in a in a measured way, uh, because I, I, I think that it is the case. And that is, you have centrist Democrat or Republican friends who are not energized on the issue of reproductive freedom, want you to share these, these episodes with them.

0:07:31 Andrew: Right. If they are telling you, oh, yeah, you're being hyperbolic. Right. Like that. Republicans aren't really coming for contraceptives. Republicans are coming for contraceptives. Right? And and look, we've had notice of this back in 2014. Right, like the amicus briefs, the the briefs filed by the appellees in the Hobby Lobby decision, the Burwell versus Hobby Lobby. Right, back in 2014, were about birth control, Were about religious objections to birth control.

0:07:41 Thomas: Right.

0:08:01 Thomas: But It didn't, they so wasn't the trick there that they just decide a thing is a thing it isn't? So, like, we've decided birth control is abortion for these certain things, wasn't that what that was

0:08:12 Andrew: It is, and let's kind of delve down into that. So of the top 10 Christian denominations in the United States, eight of them explicitly oppose some form of birth control for some classes of people, And right? Those oppositions fall into a number of categories, they begin with the largest single denomination in the United States, the Catholic Church, which according to papal encyclical, right, the Humanae Vitae, all birth control is quote, inherently evil, end of quote.

0:08:27 Thomas: Now look I'm not gonna be like the, uh, Pollyanna, whatever, uh, ray of sunshine, however, this one, I'm a little, little skeptical on this. I may, I'm just going to push back on you a little because I just feel like, on one hand, so there's two things. On one hand, I feel like most every Catholic, except for you, the very devout ones, don't really care about this and they probably use contraceptive, contraceptives. And I think your run of the mill Christians really don't want to to ban contraceptives, but on the other hand, the court does seem to be very, very disproportionately Catholic. So is that kind of what your main worry is here, that this, this disproportionately Catholic right-wing court may take things even further than probably most Americans want, would want, want them to go, or even most

0:08:57 Andrew: Good, good. Good.

0:09:37 Andrew: Oh,

0:09:38 Thomas: Conservatives really

0:09:38 Andrew: So. Let me be clear. I do not think it is the Catholic composition of the court inherently. Right. I think it is the I think the right wing evangelical Christian movement combining forces with right wing Catholicism. So, you make an excellent point and you make an excellent point about Catholics on the ground. So let's talk about the second largest Christian denomination in the United States. That is Southern Baptists and Southern Baptist from a creedal perspective. Right. You can go. I'll give you links in the show notes to Southern Baptist website. And, right, explicitly what Southern Baptists oppose are, quote, abortifacient, end quote, methods of contraception, which is what you were talking about, right? Which they define as including oral contraceptives, the pill, and IUDs. So, you know, that's an awful broad swath

0:09:47 Thomas: Okay hmm right yeah yeah yeah okay totally I was

0:10:41 Andrew: Of, yep,

0:10:41 Thomas: I was going to ask if you thought there was some limit, again, just speaking in like kind of real terms, what will happen, we know this is BS, and, so and much of the propaganda is about describing things as abortion pills when they're not. We absolutely taking that on board, I was still wondering if there would at least be a limiting factor there of, like, how far can these right-wing a-holes stretch the, the, like, well, this is actually abortion, you know, like, is there, they won't do that with condoms, you know, as an example, there's... there's no way they would go that far, right?

0:10:53 Andrew: Yep.

0:11:11 Andrew: Think that is correct. Of the major Christian denominations in the United States. Only the Catholic Church opposes condoms. But as if to contradict myself, I want to quote here, and I'll provide you the source. This is Al Mohler, the president of Southern Baptist Theological Seminary. He is an incredibly influential voice for Southern Baptists. He said, quote, "A good many evangelicals hope to do far more than sow seeds of doubt about the morality of birth control. Our concern is to raise an alarm about the entire edifice of modern sexual morality and to acknowledge that millions of evangelicals have unwittingly aided and abetted that moral revolution by an unreflective and unfaithful embrace of the contraceptive revolution." He said that in 2014.

0:11:18 Thomas: Sorry

0:12:03 Andrew: Yeah, yeah. 2014. Yeah.

0:12:03 Thomas: So he said that in 18... what? What? 1535? Yeah.

0:12:09 Andrew: So can I say that the Southern Baptist Convention opposes all birth control? I cannot say that. I can say they oppose most forms of birth control that women use and that they are highly politically aligned with the extreme Catholic view and that there are voices that sort of lump everything into the sexual morality position, which I'm going to show you in the next segment, is kind of how we got here. Right. The basis of what took us to the law that was at issue in Griswold in the first place. So if you ask me, as a flash forward to that, are the conditions right in the United States for recreating a 21st century analog to the Comstock Act?

0:12:57 Andrew: I would say that they're scarily closer than anyone would might believe kind of going through the rest of the religious denominations. I will tell you that other than the United Methodist Church and possibly the The Presbyterian Church USA, which are pro contraception. The United Methodist Church is as pro-choice as a church is going to get. So other than those two, even the churches that are pro-contraception are pro contraception for married couples. And again, prior to 1965, it was not uncommon in the United States to have laws that restricted the sale of contraceptives only to married couples. Now, how your drugstore went about proving that, I don't, I mean, you know, did you have to like, you know, find it, get a friend and like, put a ring on her finger and walk in and go, well, man, the missus, we're just hoping for a quick romp tonight.

0:13:52 Thomas: Yeah.

0:14:01 Thomas: All our Libertarian-leaning listeners, don't you feel like you have the right to go into a convenience store and not have to answer personal questions and provide proof that that you're married?

0:14:15 Andrew: So it, is a, it is a significant overlap and, you You know, it seems preposterous to think that you would pass a law that restricts the sale of contraceptives to married folks, except that it's happened in our nation's history. But the I Mormons are, contraceptives are the privilege of married couples and there are outspoken statements by their apostles and the first presidency.

0:14:31 Thomas: Yeah. Oh yeah. Utah. Jeez.

0:14:43 Andrew: Yeah.

0:14:44 Thomas: That could be.

0:14:45 Andrew: The largest denomination, the Church of God in Christ, which is a holiness Pentecostal denomination has paired with the explicitly Catholic Human Coalition for their pro-life work. So again, you know, if the folks you are working with on pro-life messages are also anti-contraception, when you win, right, they don't go home, right? They don't declare victory and withdraw, right. They keep going. So I think that we are right to be concerned about the availability of contraceptives. And I think that it's going to start with laws in particular states. Look at SB8 in Texas and look at the way anti-abortion activists have tried to hang their hook on any particular argument that they think resonates, right?

0:14:45 Thomas: Yeah.

0:15:40 Andrew: So we had a couple of years ago, the rage was mandatory transvaginal ultrasounds, right? Because all of a sudden, if you're looking at an ultrasound picture, we noticed that that would persuade a certain number of pregnant individuals not to proceed with an abortion. In the past couple of ears, we have redefined, you know, one pulsating blood pumping tube as a fetal heart so you know, could I see a bill that banned, uh, taking oral contraceptives as, you the Abortifacient Prohibition Act of 2022, that that doesn't strike me as implausible. To get there, let's time travel back to 1873.

0:16:25 Thomas: As the as the Republicans already have. Okay, we'll go.

0:16:26 Andrew: Yeah, right. I mean, right To understand these people, we have to go into a 19th century mindset. But, but, as always, right, with these, it is, I think we do people a disservice to not let them know how much the things that feel like they are a longstanding enshrined part of the Constitution have been around since the 60s and 70s. You know, 1960s, 1970s, that much of what you recognize as good on the left in America you is 50 to 60 years old at the oldest at the outset. So in 1873, Anthony Comstock was the inspiration for Section 211 of the federal criminal code, which was colloquially known as the Comstock Act. And it said, and I want you to understand the agglomeration of these things together.

0:16:28 Thomas: Yeah. Yeah.

0:17:20 Andrew: It prohibited distribution via mail, right, because it's got to be a federal law, so we have to have some connection to interstate commerce. So distribution via mail of obscene, lewd or lascivious and every filthy book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character, and every article or thing designed, adapted or intended for preventing contraception or producing abortion or for any indecent or immoral use. That meant sex toys. And every article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing contraception or producing abortion, and then all sorts of other stuff. And then whoever shall knowingly deposit or cause to be deposited for mailing or delivery, or whoever shall aid in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years or both. And by the way, $5,000 in 1873 is, yeah, $114,000.

0:17:26 Thomas: Yeah yeah Wow, holy moly.

0:18:26 Andrew: In today's dollars. Yeah, yeah.

0:18:26 Thomas: So they were going after big dildo, they're going after they're gonna have to Adam and Eve at the time, I guess I look I I know, you know, this is an old timey thing, but I'm just curious, at the time, how would it have worked if someone was like, definitely mailed that dildo, but the thing is, the person who was using it, it wasn't any immoral or obscene thing they were doing, they were just masturbating, so is this fine, right? Because the language of the law is like, no immoral, indecent purpose, and it's like, like couldn't you, could, could anyone, could, could some like very liberal-minded person of 1870 whatever be like, yeah, no, it was, they were just masturbating, it's not immoral, there's nothing wrong

0:18:28 Andrew: Yeah. That's it, yeah. That is exactly right. It.

0:19:08 Andrew: It You The opposite was the case. In other words, you could ask the court to take judicial notice that masturbation is an indecent or immoral use, right, like it, it was, was.

0:19:20 Thomas: With it. Everyone would have been like, oh, god, of course, you don't need to say it yeah we know that. Oh, but like, legally speaking, what's interesting there is that just relies on a bunch of people going, oh, like, it's nothing codified into that, it's just like, yeah, I know that's gross, and we all, everybody in this chamber agrees it's gross, right?

0:19:22 Andrew: Everybody would have been like, oh, yeah. Oh, yeah, exactly.

0:19:42 Thomas: Weird.

0:19:32 Andrew: Yeah. Yes. Yes, that is that is correct. And notice, by the way, that it is that combination of of those three things which are designed to produce that it's gross feeling of 1873. Right. Right. So pornography, contraception, abortion. Three Right. Very distinct from a legal perspective. Right. Course

0:20:03 Thomas: Yeah. Yeah, regardless of how you feel, those are very different things.

0:20:08 Andrew: They are. And three different legal standards ought to apply.

0:20:10 Thomas: It's just, it's all, they wrapped it into one, this is called the patriarchy bill of 1875.

0:20:16 Andrew: Yeah. It's it's called the Everything Below the Belt Is Something You Should Be Afraid Of Act of 1873. Right. And and and that that fundamental idea is right. They didn't have the term sexual liberation, but that's absolutely the mindset. That is the notion that sex is for pleasure and not something that God watches you to make sure that you're doing it in the right way is the common thread. Right, like that's the only three things that can hold those those three threads together is they're all about sex. So I want to tell you, and we're going to quote later from an incredibly famous Margaret Sanger article in The New Republic. But Comstock Act was not one of these symbolic things. After Congress passed the bill, it designated Anthony Comstock as a special agent in the U.S. post office. And as you know, from past opening arguments, the U.S. post office has an investigative arm, it has a prosecutorial arm. Yeah.

0:21:13 Thomas: Oh yeah, that's right. They busted, who did they bust?

0:21:16 Andrew: Uh, I want to say a Roger Stone confidant.

0:21:17 Thomas: Roger Yeah.

0:21:18 Andrew: Yeah. Could

0:21:18 Thomas: Or I thought it was Roger Stone. Oh no, it wasn't. When I might have been Roger.

0:21:21 Andrew: Have been Roger Stone. I don't You know.

0:21:22 Thomas: So I don't but anyway, those post office uh, yeah, grappling hooks, I assume, tossing mail like, uh, like throwing stars, you know, has be, they put a big mail sack over his head to capture him. Says U.S. mail on the side and they just drag it like post and And then all the onlookers, they're like, sorry, postal business. The mailman always, whatever, I don't know, rain, shine, or slab.

0:21:25 Andrew: Yeah. That is that is exactly how I imagine it. I I, am the mailman. Yeah.

0:21:49 Thomas: I'm trying to think of a good punchline. We'll work on it. Or tagline.

0:21:51 Andrew: Uh We could, we could definitely do this, make, make an anti-hero, uh, gritty reboot. We'll get Brian Cranston to play the lead, it'll be great. Um, Anthony Comstock, uh, had also Also, I to call them an army. He had, it was called the New York Society for the Suppression of Vice. But, yeah, he had a bunch of vigilante do-gooder.

0:22:11 Thomas: Boy, I bet that's a party.

0:22:13 Andrew: Yeah. And he went around and arrested people under the Comstock Act. Typically doctors who and again, think about the status of the practice of medicine in 1873. Right. And so often what doctors were getting were devices produced in Europe and around the world. And in fact, we're going to talk about one of those in a case in a minute. But, yeah, doctors were arrested under the act for mailing advice about birth control as well as birth control devices. And the archaic word here is the

0:22:25 Thomas: Yeah. Yeah, I going to say, I didn't even want to know what these were.

0:22:52 Andrew: Archaic word is pessaries. And basically today, I think that is we would call cervical caps. Right. And they also seem to have something in common with with IUDs. But yeah, if that gives you a sense of the the kind of of these early devices. And that continued until the second women's rights movement in the 1920s. And in particular, the singular voice of the 20th century that led in opposition to the Comstock Act was Margaret Sanger. Sanger. Without Margaret Sanger, history of the country would be very, very different. She litigated all of these state and federal laws for decades and ultimately began the birth control movement in the United States in 1914. Ultimately won a victory in a 1936 case, Second Circuit case, never went up to the Supreme Court, which is important, called

0:22:56 Thomas: What? Oh, yeah. Okay. God.

0:23:55 Thomas: Oh, interesting. Interesting, I

0:23:56 Andrew: United States versus one package. And that was the enforcement of Section 305A of the Tariff Act of 1930, which made it illegal. It said, quote, all persons are prohibited from importing into the United States from any foreign country, any article whatsoever for for the intervention of conception or for causing unlawful abortion. So what happened here? We had a doctor, Dr. Stone, who ordered 120 vaginal pessaries, more or less, because, again, this is this is one of these in REM proceedings.

0:24:30 Thomas: Hope, 120. Vaginal. Pessaries is a patron name. Soon. Yeah.

0:24:35 Andrew: I hear pessary and I think like giant flightless bird. No, that's, I don't know why.

0:24:38 Thomas: Like Joe. Pessary. Oh. I Think it's a little. Joe Pesci in there, and he's just, he just stops all the sperm, bam, bam, bam, you know, like he just hits. Him. With. A bat.

0:24:48 Andrew: You'll come after Nicky with the sperm, he would come after you with the knife. Yeah.

0:24:49 Thomas: Yeah. Did.

0:24:53 Andrew: The States seized this package of 120 pessaries, and then they litigated that all the way up to the Second Circuit. And the Second Circuit said the law lacks a valid purpose. And so we are not going to allow the government to to interdict and seize birth control being shipped from Japan into the United States. And that really marked, from an individual use, a turning point in state restrictions on contraception. So 1936, the U.S. declined, this is FDR, the US declined to appeal the ruling up to the Supreme Court. That does not have Margaret Sanger said, you know, that makes it the law of the land. It doesn't make it the law of the land, as, as we know, failure to apply for certiorari or even the Supreme Court not granting certiorari does not pass on the propriety of the opinion below.

0:24:59 Thomas: Oh.

0:25:52 Andrew: But, you know, it often signals kind of where things are going. And state anti-contraception laws began to wither away. But as always, there was public backlash. We're going to talk a little bit about that. But after victory in the one package decision, Margaret Sanger penned an incredibly influential essay in the New Republic. It's been cited in numerous Supreme Court opinions called The Status of Birth Control. 1938, May 19th, 1938. The New Republic. And she writes, last, birth control is legal in the United States. The right to provide contraceptive information and service under medical direction is finally recognized under the federal law as now interpreted. And it is legal under state laws in all but a handful of states, including Mississippi, Massachusetts.

0:26:41 Andrew: She also talks about the Connecticut law and opines that the Massachusetts law is vulnerable on constitutional grounds. Um, and then she describes the, the working of the Comstock Act. So we'll sort of pull that pin out. Um, it is one of the anomalies of modern civilization that the forces of bigotry, reaction, and legalism could so long have kept on the federal statute books a law that classified contraceptive information with obscenity and was interpreted to prevent physicians from prescribing contraceptives. Year after year, this vicious law legally tied the hands of reputable physicians, while quacks and purveyors of bootleg contraceptives and, quote, "feminine hygiene," and, unquote, articles and formulas flourished. I left in this quote because it's such an excellent point.

0:27:28 Andrew: And again, it just goes to show, you know, the more things change, the more they stay the same. I mean, this was 82 years, 83 years ago. And she pointed out that when you restrict the dissemination of legal information, you open up a space for nuttery to prevail, right, for quacks and snake oil salesmen and, you know, what whatever the equivalent, that the 1938 equivalent of of Goop was, right?

0:28:00 Thomas: Yeah. Well. The sad thing is we have Goop now, so. I guess that didn't stop it.

0:28:04 Andrew: Like. It. Right, yeah. Yeah, um, but it's true, right? As you, as you restrict information, it, voices will come to fill, fill that void. And by definition, it will be not the science. So it was an absurd situation in which the federal law, in effect, nullified the laws of practically every state. And the laws had teeth. Many supplies and much literature were confiscated and destroyed. Although no outstanding, distinguished physicians were actually prosecuted for violating the Comstock Act, this was mainly, mainly because they did not openly violated it. They were intimidated and kept in fear of prosecution. With federal and state laws in conflict and confusion, a physician might legally dispense information under state statutes, but it was illegal for him, under a literal interpretation of the federal law, to send or receive the necessary technical information and medical supplies.

0:28:57 Andrew: The laws hampered the progressive physician, eager to adopt preventive health measures and willing to advise his patients privately, But reluctant to take a similar stand in public practice because of the confusion as to his legal rights in this field of medicine. And she doesn't mention because, again, she's not partaking in the scientific literature. But but the chilling effect that that has on the necessary discourse in academic journals at the time, I I think would be similar. So

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0:33:09 Andrew: She gets to the law in the state of Connecticut, I'll quote Margaret Sanger's words, there then remain three states. In one, Connecticut, the use of contraceptives is forbidden. This statute, incapable of enforcement, has long subjected Connecticut to ridicule, but this blue law relic has remained part of the code, despite earnest and repeated efforts to amend it. But nevertheless, seven birth control clinics are in operation in Connecticut. So Margaret Sanger felt in 1938, all right, well, you know, this is the laws on the books, but it's impossible to enforce. And, you Know, we've opened up birth control clinics. So, you Now, we're making progress. It's one of those like and and that is has real significance. Yeah. So I'm glad you noticed that. Put a pin in that one. I think in 1938, it's fair to say that Margaret Sanger looked at the Connecticut law the way some of us today, you know, might look at the, you now.

0:33:38 Thomas: It's. Interesting. Well.

0:33:48 Thomas: But that point about, like, it's, we've tried to just get rid of it but we. Can't, kind of. Thing.

0:34:06 Thomas: Yeah. Atheist. Office stuff.

0:34:09 Andrew: Right. Yeah. I was going to say you get those like Facebook memes that are like, did you know in Arizona it's illegal to walk by a horse on the left hand side on a Tuesday or whatever?

0:34:10 Thomas: Yeah. But. But. I think I guess what I was picking up on is it seems different than that because she's saying, like, well, we've trying to stop this and we can't, whereas I think if you, maybe if you had the energy to stop the walking on the left of of a horse on a Tuesday, whatever thing you're coming up with, you know, does this suggest that, like, this wasn't really enforced, but there was enough people who basically agreed with it that they couldn't get rid of it? I

0:34:43 Andrew: Yeah. And in fact, that legislative history will and subsequent efforts to repeal that failed on multiple occasions will come into play at the Supreme Court. So what are those laws? Those laws were 53-32 and 54-196 of the general statutes of Connecticut. So first one says any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than $50 or imprisoned not less than 60 days, nor more than one year, or be both fined and imprisoned. Right. So misdemeanor to use any contraceptive 54 dash 196 says any person who assists, abets, counsels, causes, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.

0:35:32 Andrew: Connecticut prosecuted somebody for this in 1940. And it went all the way up to the Connecticut State Supreme Court, which said, yep, you can do that. So, in 1959, different plaintiffs tried to challenge that law. The first was a married couple, Paul and Pauline Poe, which if I ever pick a.

0:35:52 Thomas: Was gonna say that would be the fake married couple name I'd make up too. If I wanted. To have some extramarital sex and then sue the state for not letting me. I'm.

0:35:55 Andrew: Yeah, yeah. Yeah, exactly. This is my wife, Pauline.

0:36:04 Thomas: Yeah. I'm.

0:36:04 Andrew: I'm Paul.

0:36:04 Thomas: Paul, what's your wife's name? Pauline. Pauline.

0:36:07 Andrew: Paul hat. Yeah. Are a husband and wife, 30 and 26 years old, respectively, who live together and have no children. And Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities, from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence. And this is true. Put a put a pin in him. And it is Dr. Buxton's opinion that the cause of the infant's abnormalities is genetic. Plaintiffs know that it is Dr. Buxton opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing contraception. Medically, the use of these devices is indicated as the best and safest preventative measure necessary for the protection of plaintiff's health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the state's attorney to constitute offenses against Connecticut law.

0:36:09 Thomas: Okay.

0:37:03 Andrew: The state's attorney intends to prosecute offenses against the state laws and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by the laws that I just described.

0:37:14 Thomas: I know. I'm probably going to sound like a wet blanket all the time, but I do want, I think we should at least note that this rationale here is completely unnecessary. Like, this is already setting, I know it's dated and it's, you know, whatever, but it's already setting up that paradigm that still exists today and should not exist, which is, well, did you know some girls use birth control for acne? It's Like, no, it doesn't matter. Like, it doesn't matter that this particular couple, they needed, you know, birth controls because they had trouble praying. None of that matters. I get that I guess it had to matter then in the courts, but, like, that if the only difference is, oh, we've now realized there there are some medical emergencies that would mean people should be able to use this, that isn't actually that much of an upgrade.

0:37:38 Andrew: Yeah.

0:38:01 Andrew: No, that's right. And I want to illustrate just how extreme these situations were. First couple, multiple pregnancies that resulted in catastrophic catastrophic live birth of children who died immediately thereafter. Medical advice is don't get pregnant. Second plaintiff is Jane Doe. And it's the reverse situation. Recently underwent a pregnancy which induced in her critical physical illness, two weeks unconsciousness, nine weeks acute sickness, which left her with partial paralysis, impairment of speech, Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is a contraceptive device. And plaintiff number three was Dr. Dr. Buxton. So, right, those were the three groups challenging the law. A couple that said our medical advice is don't get pregnant. A woman who had life threatening pregnancy whose medical advice was don't get pregnant. And the doctor who wants to give the advice of don't get pregnant that is prohibited by the law. This case ruled that three of those plaintiffs lacked standing.

0:38:21 Thomas: Oh.

0:39:17 Thomas: How?

0:39:18 Andrew: And if you're sitting there thinking, wait how is that? Yeah.

0:39:21 Thomas: Yeah. Who.

0:39:22 Andrew: Remotely possible.

0:39:24 Thomas: Would.

0:39:24 Andrew: Did.

0:39:24 Thomas: Have standing?

0:39:25 Andrew: The what the majority opinion said was years of Connecticut history demonstrate a tacit agreement. The fact that Connecticut has not chosen to press the enforcement of the statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This court cannot be umpire to debates concerning harmless, empty shadows. To Find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes to reality.

0:39:49 Thomas: What?

0:39:59 Thomas: Yeah.

0:39:59 Andrew: So, yeah, they said, look, unless you've actually been fined under the statute, you have no standing. You can't say it's not enough to say I'm about to render the medical advice that the statute says. Says, if I render that advice, I can be found guilty. The Supreme Court said, yeah, that's that's not good enough. And then the plaintiffs said, well, what if we also get testimony, which they got? I read to you from the Connecticut attorney general that said, yes, he gives them the medical advice. We absolutely will prosecute that. And the Supreme Court is like, no, we're still going to take a pass.

0:40:31 Thomas: I, it's, like you're already here, Supreme Court. I Mean, we're already, they've come all this way. Like, I, you get, you know, come on. Yeah.

0:40:33 Andrew: Yeah, yeah. So this case was called Poe versus Allman. Don't know if I gave the name. I'll give the link in the show notes. 367 US 497 from 1961. Uh, and drew a dissent, right? And, and the dissent, uh, basically said, uh, what you just said, right, which is, um, here, these cases are dismissed because the majority of the members of this court conclude that the controversy does not present a justiciable question. That conclusion is too transparent to require an extended reply. The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to cases or controversies. The question must be appropriate for judicial determination, not hypothetical, abstract, academic, or moot.

If there is a case for this remedy in the shadow of the shadow of a criminal prosecution is shown, it is this one. So, yeah, at least one Supreme Court justice was like, come on, we're here. This is a real law. They are entitled to a judicial determination. Let's not make them break the law and have to pay the fine or serve the time in jail first. As usual, the concurrence in this case written by the Supreme Court justice I have described as, I think, the most influential liberal in Supreme Court history, my

0:40:53 Thomas: Why?

0:41:47 Andrew: Hero of jurisprudence, William Brennan, he sided with the majority in not deciding the case and wrote a concurrence that through to the heart of the issue, said, I am not convinced on this skimpy record that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth control clinics on a large scale. It is that which the state has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy Flairs up again, until it does, or until the state makes a definite and concrete threat to enforce these laws against individual married couples, a threat which it has never made in the past, except under the provocation of litigation.

0:42:34 Andrew: That's him referring to that 1940 case. This court may not be compelled to exercise its most delicate power of constitutional adjudication. And so that's a little bit of 1961 hardball, right? That is Justice Brennan going, all right, I'm going to let this skate for now. But if you try and use this law to block birth control clinics from coming into Connecticut, I am a vote for granting standing and for reviewing the law. Finally, that takes us to 1965. I

0:43:10 Thomas: Is that principle important that seems to come up a lot where they're like, we don't issue advisory opinions? Like, if a state has written a law that's plainly unconstitutional, why is it such an imposition on the Supreme Court to just be like, yeah, no, that's definitely unconstitutional, don't do that?

0:43:29 Andrew: Position that you're articulating is a really, really good argument. Right. I think the net effect of our doctrines of standing have probably been on the whole have operated to bar individual litigants asserting individual rights claims more so than than any other class. And I think probably, yeah.

0:43:52 Thomas: Because Doesn't It just Completely doesn't allow for intimidation by not, but but, like, as long as you don't actually prosecute anyone, one you can have a very intimidating law on the books. But to most normal people, everyday people, they're going to be like, oh, well, the law says I can't do this, crap, I don't want to get in trouble, you Know, like, even if

0:44:11 Andrew: Yeah. And that is exactly right. And again, look at Brennan's concurrence. If you're about to start a business, right, that is going to violate that law a hundred times on a daily basis, you know, you might look at it and go, yeah, all right. Like, you from an individual perspective, this is never enforced. But like, you know, can we really count on as part of our daily operations? Oh, by the way. Yeah. Come work for Planned Parenthood of Connecticut. Break the law a hundred times a day. That's not a great, you ad to place in the want ads. So. So, yeah, that's that. I think I think that Absolutely. I agree with you on on on both points. You know, as a lawyer, I still look at and evaluate the standing doctrine. I still do it on a case by case basis. I still think there are reasons in in cases to to want to to sort of construe that narrowly.

0:44:12 Thomas: Right Yeah Yeah Sure Yeah, I I get The limits of it. You know, there's like a lot of states, something like 40 or 50 of them, somewhere in that number. Can't remember exactly how many, should be 52, anyway, there's lots of states, you know? Now there's a lot of places that pass laws, you know, and it would be, tough it if it was like every single time there's, but I don't know. I still think you could find a reasonable there between a bunch of, you stuff like you can't walk your horse on a Tuesday and whatever, and like not bothering with that and stuff that's pretty major and has a chilling effect on people.

0:45:06 Andrew: Yeah, 40 Yeah, I think I think that's right. And I think we're due for a deep dive on standing at some point. So let's make sure we we line that one up.

0:45:40 Thomas: But And we're going to have to go with a part two on this, Andrew. This was such a deep dive. There's not a bib large enough.

0:45:47 Andrew: Sorry.

0:45:52 Thomas: It's all messy. I've got deep dive all over myself. We're going have to take a break here, and you're going to have to, uh, listen next Tuesday for part two. It was that big of a deep dive, so sorry, but it's a cliffhanger.

0:46:06 Clip: And thank you, Let's go!

0:46:08 Thomas: And now it's time to thank one-fifth of our Hall of Fame patrons. We're on the, is

0:46:13 Andrew: I like you know, I'm gonna drink a fifth, and it is a quintile?

0:46:18 Thomas: Is it A quintile? Is that a fifth? What's a quintile? So,

0:46:22 Andrew: Yeah, all right, thank you to the Smiths, do take DNS advice from our live streams, please. Two praise be Underhammerton, please don't elect an O'Toole wisely. Move to Florida in the teeth of the pandemic's fourth wave. Three appointees by an imbecile were enough. This is crazy dog, horse, goat, chicken lady, introducing you to the crew. We'll resume with horse two. All right, rest in peace, Brandon Bernard. We must abolish the death penalty. Budget botanist on Fiverr. There are 400,000 species of plants, but only one opening arguments. We love you, budget botnist. PSA, contact your financial advisor if the duration of your Patreon list reading lasts longer than four hours. Fred Gruthius, Sparkle Donkey, will

0:46:22 Thomas: We're on quintile number two. And, Andrew, I believe it's your turn first.

0:47:12 Andrew: Host a fully stocked patron pre- or post-show event for charity at our tequila lab for a Seattle live show. Oh man one mediocre straight guy slowly coming out as a fabulous lesbian. All right, a gender fluent multi-class dual wielding blade lock fighter. All 2RR enchantment leyline text. Players can't gain life, damage can't be prevented, nail the blue and black ones, and we'll move on. So

0:47:19 Thomas: Oh, my gosh.

0:47:29 Thomas: Yeah, I think it's Leyline of the Void. I don't know, they never told me if I got that right, but anyway.

0:47:38 Andrew: Yeah, Just get the clown horning vaccine, you clown horny clown horns, Air Bud attorney at Paw. The presence of attorneys general implies the existence of attorneys specific. Where are they, and why have they been hunted to extinction? I like my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer. Well, we can have one and Lee sharp. Take it away, Thomas.

0:47:46 Thomas: GDT.

0:48:03 Thomas: Again, everyone knows that the police can't arrest you without, page two of two, your consent, maritime laws, freedom menu, huh, Thomas Gleberg, Benghazi and the buttery males storm the fort, teaser for Hall of Fame shout outs, Adam Borchoff, Supreme Court Justices should have an 18-year term limit, and so should Conrad Michaels, had enough of the end of the real world, indulge in the end of another, with Um Tum Alum podcast, U-M-T-U-M-U-L-U-U-N, one more voter suppression bill, and I swear to god I will pull this country over, les deux les biens fabuleuse, uh, Edgy Veggie, Jennifer Chukowski, Sassy Italy Tours doesn't know if touring is ever going to be a thing again, but we banned MTG just in case, Brian K, DND minus cameo question mark, we have legal advice, if you have coin do not take legal advice from a coin, mutually supported communities are harder to oppress, join or create a local mutual aid group, Mike Hall, Evie Huntington, Harvard alum, no hood.

I would also like to congratulate Angus the Corgi. I watched him win in 2019 and cheered on his 2021 title defense. I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability. I guess I am a fort teaser.

0:48:36 Andrew: Oh,

0:49:23 Thomas: And that's it. Thank you so much to To our our second quintile of Hall of Famers. I think you're the best quintile, but we'll see. We'll see as we go. I say that to all the quintiles, if I'm being honest.

0:49:35 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:49:41 Thomas: Right, now it's time for T3B answer time. Ah, was this as fiendish as I thought, or was I making something out of nothing here?

0:49:48 Andrew: This No, this is, this was a very, very difficult question, Thomas. Okay, so, uh, this was, man goes to the store to buy a snowmobile, uh, goes during the sale in July, that, that fact actually is salient, uh, says to the salesperson, show me the best one you got, uh, the sales person shows him one, uh, that, that advertises on the box can carry up to 200 pounds, presumably in addition to the driver, right? As you pointed out. And then it buys it on the spot, begins using it in November when there's actually snow. And on the way back from the store, with just 100 pounds of cargo, the snowmobile kept stalling. He called the store, and the store said, oh yeah, that one's got, guy, it's all in the ball bearings, that's, that's, that's problem. Um, uh, and said, but you know, look, it works, works, you know, uh, fine as a snowmobile the rest of the time. So, um, uh, no, you may not have your money back. Um, and then the question was, is the man likely to recover the full purchase price of the snowmobil?

0:50:36 Thomas: Well, I don't know if it matters, but the store guy never said no, you couldn't have your money back. Yeah. I

0:50:51 Andrew: No, that's True, that's true, that is, it is not stated, uh, that anything happened there, so, uh, uh, you, um, narrowed it down Well, for purposes of scorekeeping, you went with A, and the coin went with C, uh, and I have to tell you, neither you nor the coin got this one correct, um, it It, it is, in fact, B, um, that the man properly revoked his acceptance of the snowmobile? And this is an incredible corner case for the UCC. It's really, really hard question. I want to tell you that in picking, this is one of those that because I will take the test sometimes when I have to and punch in an answer. And this is one OF those where I punched in the wrong answer too, right? I also went with A. I

0:51:01 Thomas: Was between a b, c, and d. Uh-huh. Yep. Yeah, Wow, yeah, that's a tough one. Oh, really? Huh. Yeah, Wow.

0:51:48 Thomas: Yeah,

0:51:48 Andrew: Didn't think A was a great fit for the reasons that you've said. But thought I knew the law of revocation of acceptance under the UCC. And I'm like, well, it obviously doesn't fit that. And it's got to be a yes answer. So, you know, that sort of leaves you with a bad one by default. Fault. The reason that it's not implied warranty of fitness really is you give a much better explanation than the bar book, and that is that this is express warranty, right, on the box.

0:51:50 Thomas: Yeah, Yeah, It's not really implied, yeah. It was so

0:52:23 Andrew: It implied warranty.

0:52:24 Thomas: Interesting that you and I picked the same answer there. I guess I'm in good company, at least, yeah.

0:52:27 Andrew: Yeah. Implied warranty of Fitness requires that the buyer is relying relying on the representations of the seller. And if you go back and look here, the seller doesn't do anything wrong.

0:52:37 Thomas: That's I had all that It was, what's frustrating, I, because I said, like, well, you know, that A is more like, if it just didn't work as a snowmobile at all, kind of, right? Like, because the seller is like, yeah, it'll work for you.

0:52:40 Andrew: Yeah. Yep.

0:52:51 Andrew: Yep, yep. That's right. So now here's why, and again, gosh, this is such a corner case. The classic UCC definition of revocation of acceptance is, number one, One, there must be a nonconformity that substantially impairs the value of the goods. Well, here there is. It says it can carry 200 pounds. It can only carry less than 100, Two, you must accept, because you had a reasonable belief that the nonconnormity would be cured, and it was not, or, and I'm not kidding, this is the or, And I've never seen a case like this in my litigating career, and I certainly didn't remember this off the cuff, or that you did not discover the nonconformity because the nonconiformity was difficult to discover or because of the seller's assurances. Then three, you must revoke within a reasonable time after discovering or should have discovering the nonkonformity. And four, you most revoke before any substantial change in the condition of the goods, which is not caused by your own defect. And the idea here is buying the snowmobile in July. You can't test it out until there's any snow.

0:53:11 Thomas: Okay. Yep. Hmm. Ah, oh man.

0:54:04 Thomas: Yeah.

0:54:05 Andrew: The minute there's snow, you test it Out. You discovered it in a reasonable time. It was difficult to discover the nonconformity. Man, I got to tell you, this is this is just one of those where you take the L and say, all right, you know, the bar is tough.

0:54:13 Thomas: That's a tough one. Yeah, yeah. This even stumped Thomas's second chance law firm, which is, you know, hard to do. You don't often stump Thomas's second chance law from. Yeah wow. I mean, yeah, that's just a tough one. I, I had elements of it, but yeah, no, that, uh, whoo. I it's so funny. There was a, there's a short period of time in my thinking where I almost picked B and it was because of what you said, where I was like, well, it's not really an implied warranty. And I almost was like and I pretty sure this has to be a yes answer. So maybe I'll just go with B because it's like, oh, yeah, he revoked it. And then I moved on from that. But there's... there's a chance, you know, one of the universes Thomas picked that that answer. And I don't this Thomas Thomas doesn't live in that universe.

0:54:21 Andrew: Yeah.

0:54:59 Andrew: Well I thought you did a great job breaking it down. It, it, I, can I tell you, it's it's a hard question depending on it. Yeah.

0:55:07 Thomas: So to go forward in answering universal commercial code answers, am I right that in their normal circumstances, you can't keep something for like a million years, you know, a bunch of months, but it's just the fact that it's like you couldn't have discovered, which, you know, that makes sense. If it's something that you couldn'T have easily discovered until a certain time, it would be pretty crappy if it's, like, nope, you're stuck with it, even though there's no way you could have known.

0:55:09 Andrew: Yep. Yep. Exactly.

0:55:33 Thomas: Yeah. All right. Well, that was fiendish. I can't wait for future Thomas to discover who actually got this right. This is going to be a really fun one to see. So, yeah, future Thomas, take it away. All right, well, as predicted, lots of people all over this place with these answers. I think most people actually agreed with me. We had a lot of answer Ds, though. I would say that was another popular answer. Some answer Bs, a couple here, some not very well explained, but here's one who got it and has a funny explanation. So, congratulations to Two, Matthew Tye at Matthew T-I-E on Twitter, who says, OK, I called the ultimate snowmobile expert Todd Palin. He said, you betcha with a capital B when I asked him if the guy would get his money back. When his wife lost the election, he found out there's never a warranty implied. So capital B it is.

0:55:32 Andrew: Right, me too.

0:56:26 Thomas: I don't know how you got there, but, you know, not going to question the process. Somehow you got it. B was the right answer. I didn't get it. Not even close. Second chance didn't even get it. This was a bad week for me, but I think that was a hard question, so, you know, sometimes they're just that hard. But congratulations to at Matthew Tie, T-I-E, on Twitter for being this week's big winner. Thank you so much for listening. That's our show. And again, make sure to tune in next week for part two of the deep dive that was too much. The All-You-Can-Eat Deep Dive. I finally tapped out. I have to come back another day for round two of The All-You-Can-Eat Deep Dive. Can't wait. See you then.

0:57:07 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:57:41 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.