Advisory Opinions - Swinging for the Fences on Abortion

Episode Date: July 26, 2021

On today’s pod, the discussion is (almost) all about abortion jurisprudence. After a brief look at Taking Offense v. California—a California Court of Appeal for the Third Appellate District case striking down a California law criminalizing long-term care workers repeatedly misgendering their residents—David and Sarah dive into Mississippi’s challenge to Roe v. Wade, which directly asks the Supreme Court to overturn the almost 50-year-old precedent. How did the Mississippi attorney general frame the argument? How likely is it that the argument succeeds? What would American governance look like in a post-Roe world? Show Notes: -Taking Offense v. California -Dobbs v. Jackson Women’s Health Organization Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And today's podcast is going to be a lot about DOBS. DOBS is a case name that loyal Advisory Opinions listeners should know just right off the top of their head. But if you're parachuting in new, and I know we have a lot of new listeners because I've been running into you guys as I've been traveling again around the country, including a lot of new listeners who started listening during the Angry Cheerleader podcast, which was peak, peak podcasting. So if you're a new listener, Dobbs is the Mississippi abortion case. This is the case where Mississippi passed a ban on all abortions after 15 weeks, and it has gone up to the Supreme Court. And the reason why we are going to talk a lot about it is because Mississippi, the state of Mississippi, filed its brief last week. And how shall we put it?

week. And how shall we put it? They went there. They are swinging for the fences. I'm going to read the introduction. It says, on a sound understanding of the constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the constitution, may a state prohibit elective abortions before viability. Yes. Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws. So we're going to walk through this and we're going to ask whether Mississippi made the right call tactically. We're going to talk about these arguments. So buckle up. You're going to learn more about this case from this podcast than you ever knew you

wanted to know. But before then, let's just briefly talk about a different case that I found interesting. It is called Taking Offense v. California. It was decided last week in the California Court of Appeal, and it dealt with the constitutionality of a law that criminalizes misgendering, or the willful and repeated failure to use a resident's preferred name or pronouns after being clearly informed of the preferred name or pronouns. And the court concluded that portion of the law was unconstitutional. I sent it to Sarah. We talked about it a little bit in the green room. You had some interesting thoughts. Want to share them? bit in the green room? You had some interesting thoughts. Want to share them? First of all,

this is a weird little law, right? It's really narrow. It only applies to these long-term, you know, nursing home type workers. I didn't know that this was a problem we needed to solve. I was wondering the same thing. Nursing homes? Has there been some rash of... Anyway, but of course, the part here that matters is that it criminalizes the speech. So I was thinking, I start referring to David as sweet cheeks at the dispatch

for the purpose of sexually harassing him, belittling him, bullying him. So every time he says something, I say, sure thing, sweet cheeks. Which, bullying him. So every time he says something, I say, sure thing, sweet cheeks. Which by the way, kind of sounds fun and maybe I should do it. Here's the deal. There's no question that I could be fired for that. I don't have a First Amendment right to say that in my job. But the question that's presented here is, can you put me in jail for it or find me, give me a criminal record for doing that? And the reason I want to use that example instead of this one is the

transgender pronoun thing actually, I think, confuses more than clarifies in terms of the facts. So I want to use something that's a little clearer for everyone. Just imagine someone sexually harassing you at work. Could that person be arrested for doing that? Or do they have a first amendment right to sexually harass you, even if they don't have a first amendment right to like keep their job? David, what are your thoughts on that analogy? Um, I'm not so sure about it here. Here's, Um, I'm not so sure about it. Here, here's, here's why. I think that, um, if you could say, so, so for example, if you take anti-harassment law, which is, you know, Title VII is a law, so it is, it's not criminalizing, uh, sexual harassment, but it's certainly re, you know, um, it is certainly the state intervening into the workplace in a way that actually impacts speech. But see, the difference, I think, between sexual harassment is it's not aimed at specific type. If you're looking at hostile environment harassment or, you know, whether it's an educational like Title VI or Title IX or employment like Title VII, it's not aimed at particular content or viewpoint.

It is looking at, so you could call me almost anything, but if it's unwelcome, motivated by gender, and so severe pervasive that it creates a hostile environment, then you're in trouble and you're in trouble via federal law. But again, it's not aiming at particular content of the speech. Here, what they're doing is they're pulling back and they're saying this particular content always and forever is going to be unlawful and not just unlawful, but criminally unlawful. So I wonder, I think if you had the same, if you had a standard anti-harassment law, it would probably pass muster if a person was repeatedly misgendering someone in a way that

was designed to create a hostile environment, and the facts supported a campaign of aggressive misgendering, to use the term of art, then you probably are going to, that would probably be a valid harassment case under sort of the test of unwelcome, severe, or pervasive. You might have a real harassment issue. But instead, what they do here is they say, this language, just this language, period, as long as you know what the

person's preferred pronouns are, regardless of circumstances, are going to be unlawful. That's sort of more aiming at specific words themselves, which is why I think the California Court of Appeal got this correct because it's like singling out specific content as unlawful instead of singling out quote-unquote harassment as unlawful. Hmm.

I don't think I'm very satisfied with this answer, actually. I think my answer is exquisitely awesome. I don't think that you can criminalize sexual harassment, which you, I think it sounds like, kind of do. Oh, I think you could if a state wanted. So, you know, right now sexual harassment it would need to pass strict scrutiny and i think that the compelling government interest of uh severe pervasive workplace is just fundamentally different what's the police power compelling interest for the state

that is not on how sexual arrest but the narrow tailoring here is the like okay well yeah it's it's civil it's in your workplace that criminally I don't think would be nearly narrowly tailored enough to protect First Amendment rights. Yeah, I mean, it would depend on the precise language of the, but, you know, there is such a thing as criminal harassment. Well, sure, but that's a little, I mean, and there's a reason that's an extremely high bar. It's not you repeatedly use the wrong pronoun or I call you sweet cheeks at work. No, what I'm saying is that the reason why this didn't pass constitutional muster was not just because it's criminal. It's because it's content-based. I know, but I don't know that I think it is content-based.

Well, that's what the California Court of Appeals said. Oh, I know. I read it. But I'm curious why you think it's content-based when I get that the pronouns are a specific type of speech, but it's not like if you use the word she that you get fined. It's any incorrect pronoun. So it's a whole bunch of pronouns that fall under this. Why do you think that's content-based versus words that are intended to be sexually harassing in nature? How is that not content-based? So I think the difference difference is so when you're talking you're singling out these specific

pronouns which are your statement of assent or uh your statement of affirmation of a contested issue which is the contested issue is the sex of the person that you're referring to what about the contested issue of whether I think women should work outside the home? And so by calling her sweet cheeks, I'm making the point Wait, hold. Oh, that's a good, that's a good, that's a great segue because arguing that a woman shouldn't work outside the home or having a discussion about that isn't harassment. No, I agree. But the difference here is you could say, I do not believe that transgenderism exists. That's not being criminally punished here. It's the pronouns. So in this case, it's not that I'm

going around wearing a t-shirt or saying, I don't think women should work outside the home. Instead, I don't think women should work outside the home. Instead, what I'm doing is, you know, I don't know, calling a woman kitchen wench at the workplace repeatedly because my point is that she shouldn't be working outside the home. But no, that's not what I'm saying. Same with the person who's using the wrong pronouns. They're not saying, I don't think it exists to be transgendered. They're just using words that kind of convey that message but the difference is so in an anti-harassment statute what the anti-harassment statute the constitutional anti-harassment statutes don't do is they don't sort of provide you with a list of terms that are going to be prohibited under any and all circumstances as harassment okay, okay? Whereas in this circumstance, what they did is they pulled out specific terms, pronouns, specific words, pronouns, and pulled them out of generalized harassment law and said these words,

being even pulled out of generalized harassment law, are going to be criminalized. And so that's why this kind of legal regime is very different from an anti-harassment legal regime. Because what it's doing is it's pulling these words out and saying their repeated use is criminalized. And then they try to justify it by saying, well, then that's harassment. Just the use of these words at all is harassment, but that's not how anti-harassment law works under the First Amendment. Anti-harassment law under the First Amendment is highly contextual depending on the welcomeness or unwelcomeness of the speech,

depending on its severity or pervasiveness, and they just pull out these terms, these pronouns, and they say, nope, can't use. And then they're trying to pull that within harassment law, and it just doesn't work because that's not how harassment law works. So let's assume for a second that the federal government adopted the FAA's new words, where they say that you can't use the word cockpit anymore. And what if Congress... Cockpit, by the way, does not have the etymology that you may be thinking it has. But what the FAA said was that regardless of the fact that that's not the etymology, people use that word for the purpose of basically creating a hostile work environment. Even though, again, I just want to repeat, the word itself does not have anything to do with that. But nevertheless- With what, Sarah? Nothing.

Don't worry about it. This is a family program. Okay. Yeah, that would be unconstitutional. That'd be unconstitutional. To ban particular words without any finding of the condition, without any finding of harassment.

So I think that's my question is, okay, so obviously you can't ban using the word cockpit. I think that goes without saying. But can you instead say using the word cockpit for the purpose repeatedly, using the word cockpit repeatedly and intentionally for the purpose of creating a hostile work environment oh if you are so if you are using it in whatever you know basically whatever the word if it is unwelcome and it's motivated by desire it's severe or in the use of

the the terms or set of terms it's so severe pervasive that it is creating a hostile work environment on the basis of a protected category. But I could list the word. Yeah. I could list the word in that case. No, the statute can't list the word. I don't think that the statute could list the word. I do think that what ends up happening.

As long as it says all of those things, It needs to be severe and pervasive and blah, blah, blah, comma, such words that may be used for that purpose. And then my point here is, David, it seems to me, based on all of that, this would be pretty easy. They just need to rewrite this. And instead of saying the pronouns are what criminalizes it, it's actually the context. It's the repeated use of terms intended to harass, bully, etc. That could include misgendering pronouns. You might be right about that because essentially that's what court opinions do. So court opinions will look at fact situations regarding these words were used to as slurs for in and and the slurs were hostile you know so severe pervasive and they were unwelcome blah blah blah so yeah i you're you're probably right about that because that's what judicial precedent functionally does

it it creates a it highlights words in context as potentially harassing. So, yeah, I would say that if you're maintaining the hostile environment harassment standard, you might be right about that. But that's not what the statute did. So, once again, dear state legislature, you done it wrong. I don't even like this law, but we just rewrote it for you, and now it'll pass constitutional muster. You're welcome. Please give us credit. I'm sure you'll want to give David French and Sarah Isger specific credit in your super woke law when you rewrite it.

And tweet that out because I could really use that kind of feedback. David, when I was clerking, there was a case at the Fifth Circuit about a Black employee. As you know, in these cases, you take the plaintiff, the employee's version of events as true at the stage that this litigation was in. And he claimed that his supervisor used the term Bubba to refer to him. And the question was, in context, is a single use of the word Bubba to refer to a Black employee racially discriminatory, pervasive, etc.? And, you know, it was actually kind of an interesting case in that sense, because on the one hand you have Forrest Gump, that guy is called Bubba and he is black. On the other hand, you have Bill Clinton, that guy also called Bubba.

He is white. And so it's like well in the context like i don't really know what the supervisor meant do you take the employee's word for it that he you know is it enough if he felt like the supervisor meant it well yeah that's the interesting case where then the reasonable person standard comes in because hostile environment harassment law, if it was entirely dependent upon the welcomeness or unwelcomeness of the speech, would be unconstitutional because it would be placing your free speech entirely in the hands of the subjective feelings

of the person receiving the speech, which, by the way, that's why 90% of college speech codes are unconstitutional, because they place your speech entirely. If your speech offends someone, if someone finds your speech offensive, then you would have violated the speech code. And there was no reasonable person standard.

There was no true severe pervasive standard tied to any kind of reasonableness. And then what that ends up doing is that's exactly the kind of case where that reasonable person standard comes into play, which reminds me of a funny graphic. Did you share it in, did I share it or did you share it in our little Slack channel of this leaning building that it was like all of American law and then these few boards holding it up and it was, the words were the reasonable man or the reasonable person. So true. By the way, in that case, the plaintiff employee lost and the court found that in fact

Bubba was not in and of itself a racially discriminatory term. Yeah, that seems like clearly the right decision. Okay, is it abortion time? Is it abortion time? Said no one ever. Yeah, okay. That was poor phrasing yeah so it's Dobbs time and I had a by the way

wait you said that everyone who listens to this podcast would know what Dobbs was and I just want to mention that I have a very weird thing I tried googling this to figure out if it's a thing. So if any listener knows whether it's a thing, it would be helpful. I mix up D words and M words. And particularly it's bad if they're five letters long. And so, and, but this is true for names, um, Michael and David, like I will not like, I'm surprised I've never called you Michael David, but I think part of it's like, I know you as David French. But in this case, super, it's like the perfect storm. I was calling this case Morse, as you know, for like weeks now, weeks and weeks and weeks.

And I think you were just confused, vaguely confused the whole time that there was some other case that I knew about called Morse that you didn't know about. And then I had this epiphany last night. I know the Morse case, the bong hits for Jesus case. Right. Yeah. Which I could talk about bong hits for Jesus case for four straight hours ranting nonstop. And when you said, let's really spend a lot of time on Morse, I was vaguely confused, but hey, I was up for it. So if anyone knows about people who confuse D words and M words, I'd be eternally grateful to understand why my brain always does this. But yes, I wanted to, after we read the briefs, so this is the topside brief in Dobbs

from the state of Mississippi who lost the lower court. That's referred to topside, meaning you're the first one to file your brief. You are on the top. After we read that, that we should run through. I mean, truly, they're asking to overturn Roe and Casey. What does that actually mean in practice? What would the world look like if the court like poofed its hands? And I don't mean, yes, obviously states could then regulate abortion. That's like more of the practical side. I mean, the legal side of where abortion would fit into the scheme of legal positioning. And really what I mean by that is standards of review, what the court's options are, and kind of how we see each of the justices wrestling with this. So I don't know, there's no one better to talk about the history of abortion law with than

the Michael French. Yeah. So boy, how far do we want to go back? But why don't we start first and let's start first with the brief itself. And because one of the things that I was very curious about, Sarah, and I don't think we necessarily need to go 500 years back on abortion law, but one thing I was very curious about, about, Sarah, was what did you think tactically, tactically, what did you think of the state of Mississippi's direct frontal attack on Roe and Casey? There is no mincing words here. This is courts overrule Roe and Casey. This was not something where they tried to thread a needle and say, here's another standard. It is overrule Roe and Casey. So from a tactical standpoint, first, I guess, tactical standpoint, and then more from a longer term, hey, wait a minute, from the state of this debate standpoint, what did you think about it?

So I thought they would do more. Obviously, they had to go into this saying you should revisit Roe and Casey. The question was whether that was their primary ask or their secondary ask. Do you go in and say, look, you don't have to touch Roe and Casey to uphold this law, and here's how you do it. On the other hand, Casey to uphold this law. And here's how you do it. On the other hand, if you want to overrule Roe and Casey, who are we to stop you? I think that's, um, that was the safer bet. It's how most advocates approach something where you're talking about precedent. Um, you, the court is unlikely to overturn precedent. And so you kind of go in saying, you don't have to overturn precedent to do this. Just, you know, twist the precedent in a pretzel, stick it in the closet, pretend it never happened, but you don't have to overturn it.

But in the alternative, feel free to overturn it. Not what they did here. They did not just the opposite then. They didn't just put overturning Roe and Casey as their first ask. Their second ask, I mean, to say it gets short shrift implies that you're getting shrift at all. There's like very, very little shrift. So in the intro, for instance, the intro is, I don't know, let's see, one, two, three, four, five pages long. Let me tell you how much that second ask gets. Let me tell you how much that second ask gets. In the last paragraph of the fifth page, middle of the paragraph,

literally three sentences into the paragraph, if this court does not overrule Roe and Casey's heightened scrutiny regime outright, it should at a minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi's law. That's it. One sentence. That's it.

And by the way, there's a sentence that comes after that. So like it is really sandwiched in there. I think that is, um, let me tell you why it's a good strategy and let me tell you why it's a bad strategy. Okay. a good strategy and let me tell you why it's a bad strategy. Okay. It's a good strategy because you have a quote unquote six, three court. You have the eyes of every pro-life advocate watching and saying, this is the vehicle. If they don't overturn it on this, it's not going to happen. Let's take the vehicle. They've taken the case. That was a surprise.

And so take your shot when you got it. You're sitting there. You finally got called up to the big leagues. Mississippi, by the way, doesn't have a whole lot of Supreme Court cases also. Scott Stewart is the current Solicitor General of the state of Mississippi. David, I know it will stun you, but I've known Scott since law school. Oh, wow. Really? Yeah, stunning, right? We also work together at the Department of Justice. Scott has some of the best hair that you're ever going to see on an attorney. I'm just going to throw that out there. Just really impressive hair. Sorry, Scott. I feel like Scott's like, please stop talking about me. Uh, he's great. So you have that, I think not just pressure is the wrong term, but like opportunity that's

presented itself. Once they took the case, those are all the reasons to do it. I think they make the best case you could possibly make for overturning Rowan Casey. It's succinct. I don't think it's too overwrought. It's why, you know, on, on starry decisis has certain factors for when starry decisis applies. They really walk through that and say, therefore starry decisis, this idea of upholding precedent shouldn't apply to Rowan Casey. Uh, I thought it was a, a very nicely executed version of that. Um, let me tell you why it's bad strategy. It's not going to happen because for a variety of reasons, we can talk about- You're laying down the marker now. You're

laying down the marker. It's not going to happen. Roe and Casey are not going to get overturned because they don't need to be. So in that little sentence that I read that they kind of shoved into here, if this court does not overrule Roe and Casey's heightened scrutiny regime outright, it should at a minimum hold that there is no pre-viability barrier to state prohibitions on abortion. So let me skip ahead here, David, to the punchline of this whole case. Roe and Casey set up this weird thing in standards of review that doesn't exist for anything else. Now, mind you, abortion is different than everything else you could argue, but weirdly, side note, Rod Rosenstein has said a few things to me in my life and like, maybe they're stickier than

like multiple sticky things than what anyone else has said to me. And one of the things that he has said is basically, if you have to make an exception, those are the very times when you shouldn't. The rules are the rules for a reason. And I think when it comes to standards of review, this is part of the problem with the abortion jurisprudence line is they're like, well, abortion's different. Nope. That's when you really want to stick to the rules. When something is harder, like the hardest, like that's where the rules help you and keep you focused. So what happened with abortion is that you're in this weird standard of review. In addition, there's a viability line. Post viability, it's this undue burden standard, but pre viability, there's no standard. It's basically just no. You can have no restrictions on abortion

that could pass constitutional muster pre-viability. And so the easy way to deal with this Mississippi case without having to touch the heartland of Roe and Casey is to say, look, viability was this thing that maybe existed back in 1973. Maybe it even still existed in the 90s. But at this point, viability is a mess of a standard. So we're just going to remove the viability part of this. And instead now the undue burden standard from Casey, just like you just do that whenever. And we don't look at viability first. Therefore, we remand this back to the lower court because they spent all their time determining whether 15 weeks

was pre-viability or post-viability. That line, no longer relevant. Now just go back and determine whether this is an undue burden on the right to an abortion, which, spoiler alert, they will find that it is. And the Mississippi law will still fall. That's where I think their strategy is maybe less good, because they don't spend nearly enough time

for me arguing on that point, on how if you just remove viability, which is technically all you need to correct this lower court opinion, how they would ever still win. So anyway, that's like the punchline, but it answers your question, David. But I have thoughts on viability. I have thoughts on how we got here and standards of review in abortion and all sorts of things that I think we should discuss. Yeah. Let me go to the strategic question real quick, quickly. Wait, real quick, quickly, just quickly. And then we'll move into these other issues. So, you know, one of the things that has been sort of a continual frustration is that if you look at the Supreme Court of the United States, we really only know

where one of the Republican-nominated justices stands on Roe and Casey. And that's Justice Thomas, who has articulated his view repeatedly that Roe and Casey are illegitimate. All of the other Republican nominees, to the extent that they've weighed in at all or on the court, because not everyone has,

Justice Barrett hasn't decided an abortion case, is they've been dealing with the Roe-slash-Casey precedent regime, and they have not been confronting a direct request to overturn Roe and Casey. So there's a big mystery. We know where the three justices that have been nominated by Democrats stand. We know where Clarence Thomas stands, but we don't know where a critical mass of the court stands on Roean Casey. So in a very real way, what Mississippi has done is sort of, it's done us all a favor by going ahead and just making the ask, just flat out making the ask.

I think that's something that is, it's a public service from the standpoint of where does the court stand? Number two, I think by just flat out making the ask, the state of Mississippi is doing what good lawyers do, which is, in my view, just go ahead and lead and circle your wagons around your best argument. Doesn't mean that you don't make an alternative argument, but circle your wagons around your best argument. And I think the best argument for upholding the Mississippi abortion law is getting rid of Roe and Casey entirely. They do a really good job of, I think, showing, particularly for this court, which is to greater and lesser degrees originalist, that showing this court that really Roe and Casey have been made up out of whole cloth. Yeah, they are their precedents.

That's basically the only thing they have going for them as a matter of originalist analysis of the Constitution. And so you're making a very strong originalist argument to a predominantly originalist court. And I think that that is a good strategic, that's a good tactical move. Now, then the question is, how much of an escape hatch do you give the court? And that's what you're talking about. They don't really spend a lot of time on an old escape hatch here. They really are swinging. But I think the, and maybe the reason is, and I think the reason is, is that the escape hatch is exactly, is obvious to everyone.

It's exactly what you outlined, which is, well, this viability stuff is a mess. We're going to take viability out of the equation and we're going to remand for undue burden. And that's that. And which then keeps the abortion issue, the constitutional abortion issue alive for, oh, a very long time, as opposed to whether or not you're going to unequivocally affirm Roe slash Casey or you're going to overrule Roe slash Casey. So, yeah, that's my, I like the move. I like the move. I think it's not an obvious call to go like this, but I like it. I think it's the right call to go like this. All right. Let's start from

the very beginning. When you read, you begin with ABC. When you sing, you begin with Do, Re, Mi. And when you talk abortion, you begin with the right to privacy. Do you like that? I may have just spent 18 hours in the car with a 13 month old singing a lot of show tunes in the back seat. My poor husband, he's yeah, I feel like he sees me in a totally different light now. Weirdly, my son does not like Hamilton, by the way. It really bothers me that he doesn't. He's much more into Sound of Music, for instance. And I even tried Annie. He wasn't very into Annie. We did a lot of Disney. He loves Moana. Anyway, a lot of singing in the car. Okay, so you begin with Roe. What Roe sets up is the right to privacy that they find

in the Constitution. And that's what I think you'll hear a lot of people talk about when they sort of attack the abortion line of jurisprudence. But actually, that doesn't live that long. It moves into a liberty right under substantive due process in the 14th Amendment pretty quickly, right? That's already in Casey. 14th Amendment pretty quickly, right? That's already in Casey. And so forget the right to privacy thing. We're not even arguing over that anymore. That's been gone for 30 years. It's this 14th Amendment thing. And what they talk about here, to your point about originalism in this brief, is that in order for it to be a liberty right that was part of the 14th Amendment, it needs to have been a right that was contemplated at the passing of the 14th Amendment.

So let me run through their brief real quick and how they make this argument. At the end of 1849, 18 of the 30 states had statutes restricting abortion. 1864, 27 of 36 states had them. And at the end of 1868, the year the 14th Amendment was ratified, 30 of the 37 states had such laws as did six territories. So that's pretty persuasive. And then as they put it, the public would have understood that consistent with the 14th Amendment, states could restrict abortion to pursue legitimate interests and could do so throughout pregnancy. And when Roe was decided, most states, so like fast forward 100 years, when Roe was decided in 1973, most states had restricted abortion for at least a century.

had restricted abortion for at least a century. Woof. 21 states' abortion laws in 1868 were in effect 100 years later. I think that is, like, that paragraph is by far the strongest originalist attack that they make, that anyone could make, against the current regime of the liberty interest in the right to an abortion.

I agree with it. We are the unimind once again, Sarah, because as you were reading that, I'm looking and on my tabs, I have that entire paragraph highlighted. And what's important about that paragraph is this is not the kind of thing where you're talking about the Civil War amendments that were enacted for the purpose of obliterating state laws, for example, that had violated the 14th Amendment, in other words, or the 13th Amendment. laws of the South ratifying slavery. There is no indication whatsoever at all anywhere historically that the 14th Amendment was intended in any way, shape, or form to sweep away state abortion restrictions. There's just no evidence of that at all. And so I think that's one of the things that has made the argument that the 14th Amendment is the source of the abortion right, I think particularly specious because it's just rewriting the obvious intent.

First, there's on the actual text of it, the actual text of it. You can read that thing 5,000 times, and it does not imply that a right of abortion exists within that text. And then you can dive as much as you want into the intent, the original understanding of it, and you're not going to find any evidence. So this is something when pro-life folks say, this was just made up. I mean, it's hard to sort of find any argument that it wasn't just made up. And indeed, even most people who support a right to an abortion would say that Roe v. Wade was maybe not the most helpful way to establish that right and really to establish that precedent, as we've seen 40 plus 50 years later. You know, Ruth Bader Ginsburg criticized Roe plenty. But here's why this is all important, row plenty. But here's why this is all important, by the way. The question of whether there is a fundamental right guaranteed somewhere in the Constitution to an abortion is how you have to

enter the conversation about the standard of review. Because if there is a protected right specifically to abortion, you're going to get either strict scrutiny, remember, strict in theory, fatal in fact, or maybe intermediate scrutiny. And we can talk about whether that's what Justice O'Connor was trying to do with undue burden standard, what the undue burden standard is, how is that a level of scrutiny? Whereas if there is not a specific mention or penumbra, uh, of a right to an abortion in the constitution, whether it's in the 14th amendment or anywhere else, then you're going to end up in rational basis review where the government just has to have a reasonable reason for having this law, something, it can't be totally arbitrary. But pretty much anything at this

point that a state legislature does passes rational basis review because they have lawyers, frankly. That's why. Yeah, exactly. And I think that, so, you know, if you're talking about, So if you're talking about the 14th Amendment basis here, as the brief points out, is really, really lacking. Then if you're moving towards rational basis review, which would be left over once this 14th Amendment basis is stripped away, rational basis review is basically the state saying I win. It's, it's this, this is, that's the most favorable ground for the state. And so, you know, what's interesting to me, Sarah, so let's suppose, let's suppose the court overturns Roe and Casey. Um, what happens? What happens? Well, wait, before we get to that, I just want to talk about the story to say this argument. So as they put in their case, you know, they walk through all of this and like, obviously the 14th amendment didn't contemplate abortion.

And pretty much everyone agrees that Roe was poorly reasoned. Casey has some far more defenders, but they're making the case that like, no, look, there's no originalist argument for this. And here's their argument. So this case is made hard only because Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey hold that the Constitution protects a right to an abortion and they're precedent. And they're not just precedent, right? They're probably the most famous

cases that the Supreme Court has decided in a hundred years or more. I mean, do you think Roe is more famous than Dred Scott at this point, David? I mean, I think it's, if you say the word Roe to an average person, they are far more likely to know

what it's about generally than if you say Dred Scott. I think it's not even a close call. And so what makes this case hard is that it's not any precedent, it's this precedent. And, you know, Lena Kagan has been this uber precedent person. And she said

during oral arguments in a case this term, we don't overturn precedent just because it's wrong. I mean, that's true. It's a harsh way to put it, but it's true. So they lay out why stare decisis, this idea of you uphold precedent because it's precedent, shouldn't apply to Roe and Casey. One, they're egregiously wrong. Two, they're unworkable. Three, they've inflicted severe damage. Four, legal and factual progress have overtaken this court's abortion precedent. I think that one's interesting, David, because that's not going to change. I want to talk about viability a little bit on that. And reliance interests do not support retaining this court. So part of the reason behind stare decisis, of course, is that

everyone knows it's the law. If you suddenly rip it out from under them, everyone's been basing their life choices on this. I thought their argument under this was pretty good. Nobody thinks Roe is on solid ground. That's why we debate it every single election cycle. And that's why it's a talking point for both sides to say that there's been any reliance interest on Roe is a joke. I was like, actually, I guess that's totally correct on the reliance interest part. On the legal and factual progress one, David, I have always felt deeply uncomfortable with the viability line. Not only do we know that line will move, it will always move

as medical progress continues. But isn't there something about that which implies that the reason that you can't have an abortion after the viability line is because then you're not being forced to carry the child. You could just have the child and then medical science could keep the child alive, even though that's actually not what the viability line is. We would never, it would be so inhumane to intentionally deliver a child at, let's say, 20 weeks, hope that medical science could keep it alive with what would almost certainly be severe physical problems, if not permanent physical and mental disabilities. And so therefore, if it's not actually a choice after the viability line, then why is the viability line relevant at all?

You know, I think the bottom line on this is because once again, we're talking about a body of law that's just been kind of made up out of whole cloth is that I think a lot of people's response to abortion, quite frankly, is far more psychological and emotional. I mean, it's far more emotional than it is, uh, scientific or philosophical. And I think the reality is that when you're talking about viability, there is an emotional barrier that somebody has. The baby seems more real. That's not a legal standard. No, I know. I know it's not a legal standard. But I think that if you're going to talk about why is it that the public is sort of overwhelmingly supports abortion bans after 15 weeks or 20 weeks, as opposed to three weeks before that or four weeks before that, when it's exactly the unborn child becomes, the more squeamish people are with abortion. The more cell-like the unborn child is,

the more comfortable people are with abortion. And I don't think it's, I think it's not, there's not something that's sort of like, there isn't a real line there that you can look at scientifically or philosophically. It's an emotional line. It's an emotional line. And that's why I think you see these big swings in public opinion about early abortion early versus abortion later. That's just my own thought about it.

later. That's just my own thought about it. So elephants carry their babies for 24 months, and they come out pretty fragile, but able to keep up with the herd. And then they stay with their families and on their mother's milk for years and years, which is why the Sheldrick Wildlife Trust that raises those baby elephants. And if you're not following them on Instagram, you are missing out on, I think the best social media account in the world. Just happy baby, happy, totally anthropomorphized baby elephants every day. If, David, we were used to having human babies come out at 18 months of gestation,

so what we would now call a nine-month-old, that's, I think we would be like, ah, yes, a human. It's almost about to walk. It can do things and move its hands and kind of control stuff. It can see. And then if we were so used to that, and then I handed you a nine-month gestated baby, so used to that and then I handed you a nine-month gestated baby, I think you'd be like, WTF? This is not human. I mean, this idea that I understand the warm fuzzies have a legal significance because as we've said, justices are human too. But again, legally, the only legal standard to me is if viability then presents the actual choice, you can simply deliver the baby at that point. So no, we don't let you kill the baby at that point.

But that's not what the viability line is. And frankly, again, if it were like some line, I mean, I think a nine month old baby is probably the first point at which you're like, Oh, okay. That's like, that's really doing things that humans do. Um, and the reason we do that by the way, is because our baby's heads are so large to hold these giant brain cavities that we have to deliver our babies way before other, even primates do, um,

because women's hips can only get so big y'all. Uh, so anyway, I think the viability line is definitely going to go in this case, David, to skip ahead to where you think, where this can come out. So things that can happen, a change to the viability line,

a change to the standard of review, which is currently something like a heightened intermediate scrutiny that we call undue burden. So it's not strict scrutiny. We could lower that, change it, etc. Or three, overturn Roe and Casey and create a new regime entirely. I think those are the three options. What do you think of those buckets? Yeah, I think those are the options. I mean, I'm going to place, you know, the more I think about this case

and after reading the brief, I'm going to be very interested to read the brief in opposition, respondent's brief. I'm going to be very interested to read that. But the more I read the, the, um, the brief and opposition respondents brief. I'm going to be very interested to read that, but the more I read it and maybe this is just, you know, my, uh, my, my optimism taking over hope and optimism taking over the more, the more I look at that brief, the more I think the likelihood of overturning row grows. I'm still not to where you are. I'm still not to where I think it's probable. Okay.

I'm, I'm still not to where I think is probable. Let me just say it feels more possible. Now that you've like held it in your hand, seen the brief, you know, put it in your mouth a little chewed on it. Exactly.

It feels more possible. It doesn't feel probable yet. Because the relentless logic of the honing in on, there's just no, this thing is Roe-Casey, it's just so outside and so far removed from the judicial philosophy of a large majority of the court that, and I thought the reliance interest argument, just like you were saying, Sarah, is very well made. I mean, if you're sitting there saying every single justice for 30 years is going to be nominated by Republicans, is going to be the end of Roe, and that Roe is going to end, you predict, every four years, then there isn't a huge reliance interest. And then there's this other thing that is, and this is something that is a negative for the pro-life movement. So this

is something that is interesting. So under the justices are human to thesis, the best research indicates that overturning Roe doesn't actually change that much in the United States of America. basis. Therefore, states can make whatever laws they want with really no court-based restrictions on which laws they can pass. And so each state now does their entirely own thing. Okay, so that's bucket three. So bucket three, Roe and Casey are gone, totally up to the states. The court literally blows up abortion jurisprudence and says, deuces, we out of this business. Yep, we're out of it. Now, what happens if that happens? Now, everyone says, well, that goes back to the states. Well, the states all have existing laws that cover abortion.

Now, some of them have been blocked by courts, but those would come, they would lock into effect. So, for example, in Tennessee, you have a heartbeat bill. Georgia, you have a heartbeat bill. Much of the South, you have heartbeat bills that prohibit abortion after a heartbeat is detected. So that means you're prohibiting the vast majority of abortions in those states, almost all of them. Now, would that mean that would this suddenly change abortion in the United States? Now, the best evidence is that about 90% of abortions

would still take place in the U.S. if Roe is overturned and all existing laws lock in. Why is that? Why is that if you overturn Roe and all of these states that have heartbeat bills, those come into effect, why is it that 90% of abortions in America would be unaffected? Well, because the places where heartbeat bills are in effect either have often low populations or more often both low populations and very low pre-existing abortion rates. The states where their abortion is most robustly protected often have much larger populations and much higher abortion rates. Think California, think New York.

And so what's interesting about this is that the reality of life on the ground in the United States, and I wonder how much this would be sort of made as an argument, maybe in an amicus brief, is that overturning Roe is much less disruptive than the political media would have you believe. That overturning Roe actually doesn't touch the superstructure of the way in which people live in the United States very much at all. And I wonder, so that's both from a standpoint of overturning Roe, that's a good argument that diminishes the reliance interest. From the standpoint of

being pro-life, like I'm pro-life, it shows you that dealing with abortion in the United States, Roe actually is only a small piece of it. Dealing with Roe is actually only a small piece of dealing with abortion in the United States of America. Whereas I think that it's taken on this outsized influence in our minds because the reality is even if Roe goes, 90% of abortions remain. And so I don't know how that cuts, but I think it's something interesting on their reliance interest, but it's also something sobering for the pro-life movement. So an argument that they also make that I think is worth mentioning in their brief, not even amicus, is the factual change of reality, certainly since Roe, in terms of

alternative contraception choices, and even since Casey. So as they point out, by 2013, most women had no out-of-pocket costs for their contraception, as median expenses for most contraceptive methods, including the IUD and the pill, dropped to zero. And the failure rate for all major contraceptive categories has declined since Casey. I just think that's a good point that they're making, that the right to choose, so to speak, certainly has changed when you can make the choice ahead of time through a variety of means. Okay. So that's the third bucket, David. That's the Roe and Casey are gone tomorrow. The court blows it up. They get out of the abortion business and it's left to the states. And I still put the chance of that happening as close to zero as is not actual zero.

I think it is so wildly low on the choices. Even if, by the way, well, let me tell you why. Because even if Roe and Casey do get overturned as precedent, the court is not going to blow them up in 2021. They're going to cut away at it and cut away at it. And then in 10 or 20 years, someone will say, ugh, you know what? Roe and Casey are basically zombie precedents. Consider them overturned. That's how the Supreme Court works. That's how precedent works. Even if these are weirdo precedents, even if stare decisis is weakly holding on here, the fact that they are so famous, frankly, makes the stare decisis interest stronger. So I want to talk about buckets one and two. Okay. So essentially what you're saying is the Supreme Court is more likely to just

bite Roe and Casey and inject the zombie virus into the bloodstream. Yes. Yes. Okay. So that's bucket number two. And that is changing what the, keeping the undue burden standard, but changing its definition a little bit like what Roberts was starting to do in June medical.

So you have the Heller stat case coming out of Texas in 2015. It strikes down Texas's ambulatory center and admitting privileges thing. And it has like all this new stuff that's like undue burden times undue burden plus some briar factors. Roberts is in the dissent on that. Fast forward to June medical, which was the last, last term. And Roberts then switches his vote also now striking down the Louisiana statute and says, look, I'm not switching my vote because I now think that these are constitutional, but precedent, we just did Heller stat, you know, four years ago. I'm not going to flip up a precedent just because the court has changed. Um, and here's what I understand Heller stat to mean. It's the Casey test. And he basically strips out all of the new Heller stat undue burden plus.

So what I think you could have here and what certainly it looks like Roberts would be in favor of is continuing to polish the undue burden standard that has been inherited from Casey. And I think you can look back on some of what the initial undue burden standard was supposed to be and say that actually they could have said it was strict scrutiny. It's obviously not. And they could have said it was intermediate scrutiny and they didn't. What they intended to do, what Justice O'Connor wanted with the undue burden standard was something just north of rational basis review. Look, you can't just ban abortions outright, but yeah, if you want to say 15 weeks, that's not an undue burden because you have 15 weeks to go get an abortion. We can argue over whether that's an undue burden guys, but you get my point

that you can basically take the term undue burden and ratchet down where that falls between rational basis and strict scrutiny. I think that's bucket two. I think that there is, I still think that's hard to get, but I think it is the best outcome for the pro-life community in this case. And then you have bucket one, which I hinted at at the beginning, which is for this case, when really the Supreme Court only likes to do one thing at a time, you get rid of the viability line in this case. And Kavanaugh and Roberts, one of the two of them basically writes that. Everyone else says, that's the only thing we needed to decide here because that's how this case was decided. We're sending it back to now look at it under Casey without the viability test.

They will strike it down again. It will go back up on cert again. And then we'll see whether you've got four votes to take it. I put that at like 80%, David. Really? Really? Interesting. Interesting. With a very strongly worded concurrence dissent from Alito Thomas Gorsuch saying, the hell, guys, we took this case and all we're going to do is get rid of the viability standard. We know what's going to happen when it goes back to the lower court. The district court was incredibly uncharitable. And it's going to come back up. So why are we wasting our time? And the answer from the majority is

because this is how we waste our time all the time. Yeah. Well, you know, the thing that I think is interesting about and why I think that that sort of 80% bucket and the sort of the development

of Roe as a zombie precedent, there's historical precedent for a long wind-up to an inevitable pitch. So even if you're looking at Roe and you go back and you look at Griswold v. Connecticut, where this was the case that was striking down Connecticut's contraception prohibitions, you could see Roe being forecast. I mean, this was something that was coming. And similarly, when you look at Justice Kennedy's jurisprudence running up to Obergefell, this was something that you could see coming. One of the things I think that if Roe and Casey are overturned, contra my sort of increased my hope that it might be more possible than I thought, but contra that hope that it's more possible than I thought, there isn't a line of precedent where you can see this coming. It is a line of precedent reaffirming Casey by and large.

And in fact, you know, Hellerstedt even expanding Casey a bit and then all of a sudden eradicating Roe, that would not even be in the sort of the pattern of forecasting Roe or the pattern of forecasting Obergefell. pattern of forecasting Roe or the pattern of forecasting Obergefell. So if the Supreme Court sort of holds form to creating a line of precedent where you can see the conclusion on years and sometimes even years out, your approach to it is entirely consistent with that kind of development of precedent. All right. I feel like abortion day has been a success, David. Well, man said no one ever again. So, you know, it's interesting. Yeah. This case, this case is something that we're going to be talking about it more because we've got an oral

argument coming up and not imminently, of course, but it's now been scheduled. So we have the oral argument coming up and that is going to be absolutely fascinating as we think through these possibilities. So we're going to have the oral argument and then there's going to be a lot of discussion. And this could be an interesting conversation because I have a theory, Sarah, putting on your political cap. Okay. I even fleshed this out into a full essay someday. After the initial shock of overruling Roe, I think overruling Roe could have a depolarizing effect on the United States of America. And that it would make national politics less fraught. And it would make state politics more salient.

So that's my... you're just grimacing. You're not. Well, because I think that I also want that to be true, I guess. But I think that something else will fill the void. It will just be a different thing for people to fight over. Because, you know, you've said this before that there are at least some of those in the pro-life community who this is more of a cultural signal than it is an actual passion of theirs. And I think that's absolutely true on the left or else you would see this get

less salient as birth control becomes more effective, more prevalent, less expensive, but it hasn't gotten less salient. It's gotten more salient, the opposite of what facts would predict. Why? Because people want to have something to whack each other with. So even if that happened, A, I think something else would fill that void at the national level. And B, I actually think people then wouldn't care at the state level, except those who it turns out actually cared the whole time. And we would find out that that is a real percentage, but a very small minority of the overall percentage who said they cared.

You know what? I think you're right about that. And the first thing I thought of when you started talking was like, wait a minute, you read my book. I did read your book, David. What's the line from Patton? I read your book, you beautiful bastard. Sorry. No, yeah. This is something that I think, you know, what we have found is that people will beat each other up with extreme prejudice over issues that are far less morally consequential than abortion.

And sometimes with greater vehemence than they beat each other up over abortion. So that's the level of the cultural divide in this country. So that's the level of the cultural divide in this country. I think it's still worth it. I think the conventional wisdom that says that Roe is the most salient divide, I think that we've moved beyond that, perhaps, in our divisions. Yeah. I agree.

Well, there you have it. Also, just A, I'm figuring this is not a family podcast today, given the topic. And so, B, I want to correct. I got the line slightly wrong. The line from Patton is, you magnificent bastard. I read your book. Correct. All right. Well, this has been, boy, I tell you, I bet when you started listening to the Advisory Opinions podcast today, you did not think I'm going to get maybe more talk about abortion than I've ever listened to in my entire life.

But hey, we go there in this podcast. We go there and we appreciate you guys going there with us. We go there and we appreciate you guys going there with us. And please, as I said, always follow us on Apple Podcasts, rate us on Apple Podcasts. You guys do a great job of that. We really do appreciate it. And check us out on thedispatch.com. And we will talk a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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