Legal AF by MeidasTouch - Renowned Civil Rights Attorney Robbie Kaplan on the Overturning of Roe v. Wade

Episode Date: May 5, 2022

In a Special Edition of LegalAF x MeidasTouch, the top-rated law and politics podcast, anchors Michael Popok and Karen Friedman Agnifilo are joined by special guest, Constitutional and Civil Rights Litigator, Roberta Kaplan, Esq., to analyze the disclosure this week that the Supreme Court voted in February to end a woman’s constitutional Right to Choose and overturn Roe v. Wade along with 50 years of legal precedent. We cover: 1. The leaked draft majority opinion draft by Justice Alito, and how it came to be. 2. Whether there is a chance that the draft opinion and individual Justice voting will change before the final decision is rendered. 3. If Alito’s draft is close to final, what happens next in State Houses and in Congress 4. Whether right-wing States can make criminals out of its residents who travel to Pro-Choice States for abortions. 5. Whether the Supreme Court has abdicated its duty to protect individual liberty and constitutional rights. (that’s rhetorical) Join the Legal AF Twitter Community: https://twitter.com/i/communities/151... Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to a special edition of Legal AF Midweek with host Michael Popok and Karen Friedman Agnifalo. We're joined by Powerhouse Constitutional litigator and winning Supreme Court advocate, Attorney Roberta Robbie Kaplan to discuss, of course, the leak yesterday of Justice Salitos proposed draft majority opinion dated February 22nd in the Mississippi 15 week abortion law case Dobbs versus Jackson that if adopted by the four other justices that we believe are out there. Kavanaugh, who are such Thomas and Amy Coney Barrett, will overturn the law of the land for 50 years that there is a federal constitutional right to a woman to exercise autonomy over her body and have a right to choose an abortion or carry to term

Turning it over instead to the states where at least 23 of them at last count are poised to ban abortion or severely limited outright the day that row is overturned We'll discuss what Alito's draft majority opinion is and what it isn't, and how it got out into the public, and what is its substance and reasoning and the implications for the rights of women and other constitutional rights that were also not around in the 1800s when the Constitution was framed,

and that are not found in the literal text of the Constitution like gay marriage, women's rights and other equal protection and privacy rights. And we'll talk about whether there are five votes since February means that there's five votes now and in the summer to actually overturn Roe vs. Wade. I can't think of any one finer to join our discussion today about what it all means and break it down to the legal AF audience than Robbie. She's the founding partner of a firm here in New York, Kaplan Hacker,

and Fink leading civil, constitutional and First Amendment boutique firm in the country. She's a newly anointed, I just saw it a day or so ago, 2022 trailblazer has plaintiffs attorney by the New York, by the National Law Journal. She has represented everything that matters to our audience involving gender equality, constitutional rights. She represents E. Jean Carroll, which the Midas Touch podcast, and this podcast have talked about concerning her defamation case against Donald Trump.

She represents Mary Trump and all things. Donald Trump. She and her firm successfully represented the plaintiffs in the Charlottesville case that we have covered on this podcast against 24 neo-Nazis for racial and religious-based violence. presented the plaintiffs in the Charlottesville case that we've covered on this podcast against 24 neo-Nazis for racial and religious based violence and of all of those many cases over a 30 year plus career. She's most identified and what helps us get to the heart of Alito's draft decision with

the case of United States versus Windsor, a 2013 landmark case in which the Supreme Court ruled that key provisions of the Defense of Marriage Act, known as DOMA, violated the U.S. Constitution, specifically the 14th Amendment's Equal Protection Clause and the Fifth Amendment to Process Clause, by barring legally married same-sex couples from enjoying federal benefits of marriage if their state recognized that marriage and she's the author of a book on that topic called Then comes marriage us versus Windsor and the defeat of Doma. That was an opinion that was joined by written by Justice Kennedy at the time joined by Justice Ginsburg, Briar, sootomayor, and Kagan Boy. So I wish that group was all back together again. And with Justice Roberts in descent, we'll talk more about that. Welcome to the podcast, Robbie Kaplan. Thank you. It's really a pleasure to be here. Thank you for inviting me.

Yes, for sure. So let's talk about as, as, Kair, what did you refer to it in the pre-show, the elephant in the room? We get a disheartening leak of, well, the leak wasn't disheartening, thank God for the leak, but we get a leak of a majority proposed opinion penned by no other than Samuel Alito,

dated February 22nd of this year, leaked by someone, and we'll go over those nitty-dittails later, which over, which makes which makes no no way around this. Over turns, Roe versus Wade and Casey and rips away the constitutional right and set a law that gives the woman a right to an abortion. That's what we woke up to. Today, we just saw Justice Roberts trying to get to the bottom of the leak and charging the Marshall of the court. There's a person we don't normally talk about

to do a deep dive in an investigation. We've got the Republicans ringing their hands. Oh, let's get the Department of Justice and the FBI. Let's find out. They all think it was some like liberal progressive law clerk. I'm not sure it was that. Could easily have been other people on the bench. But be that

as it may, we have, let's talk about Ravi from your perspective, what is that majority opinion? What does it say and what is a draft majority opinion? I think our audience really wants to know all about that. Yeah, so the way that it works with the Supreme Court is cases get selected for arguments by the Supreme Court. Now, already there was an unusual circumstance here because while the Mississippi case, the Dodd's case was accepted by the Supreme Court and kind of went through the normal process

of briefing and arguments, the case involving the Texas statute, SBAs, that gave private citizens the right to somehow enforce this prohibition on abortion or anyone who was eating and abetting someone who wanted to get an abortion, that did not go through the normal process. There was an emergency request to stay that underdo because it clearly was inconsistent with the principle of doh, and the Supreme Court left that statute go into effect, which was not only a huge clue about what was coming, but wasn't really consistent to treat two cases like this so completely differently, isn't consistent with the way in the past,

at least, the Supreme Court has liked to do things. A TV example, in the case of I am going to the Supreme Court has liked to do things. I'll do an example. In the case of I argued at the Supreme Court United States who Windsor, that case was paired with a prop 8 case out of California from David Boyz and Ted Olson. And I think they had something like four or five conferences, the justices, in order to figure out how to put the two cases together in the best way and have it be orderly, et cetera.

That's not what happened here. Mississippi was argued according to the normal process. The Texas case was not. So already you have that irregularity. But when they set a briefing schedule for the Mississippi case, which was Bruce went in from a zillion different people, Amicus, Bruce, et cetera, there was an argument as you typically would expect. And then what the Justice

is doing is they have a conference after argument, where it's the first time they're all together and they vote on the case. And what seems to be clear from what we have now is that at that conference, there were five hard votes in favor of overruling Robi Wade. And that would have been in February, right, Robbie? That would have been shortly after the argument, correct. And those votes were Alito, Thomas, Gorsuch, Kavanaugh, Thomas. Well, Amy Coney Barrett.

And Barrett, excuse me, we're the five hard votes. It looks now we know from further leaks that came out that Rodberg's somewhere in the middle and then you have sort of my or prior and Kagan in dissent. Once that vote happens, the justice is to start drafting and someone is assigned to draft the majority opinion and then whoever wants to write a dissent gets to write a dissent. Typically, the most senior judge in the majority assigns the majority opinion and this quoted is typically until about a year ago, Ben Chief Justice Roberts. What makes it very clear that Roberts was not in the majority here is in a case like this, he almost certainly would have assigned the opinion to himself or had some vision about assigning

it to Amy Coney Barrett since she's a woman or something like that. But the fact that Alito is writing means that Chief Justice Roberts did not make that decision. The most senior next judge did and that was Justice Alito. So let me unpack that a little bit. So from a strategy, from a game strategy standpoint, do you think in retrospect, Robert's probably should have slid over to the majority once he saw the writing on the wall

to help shape a result like he did in Obamacare rather than stay on the sidelines and let it go to the most, one of the most rightist, the right wing conservative justices on the Supreme Court. I mean, he's just to the right of Attila the Hun in terms of the politics and letting Alito of all people, I guess the next worst would have been Clarence Thomas. What do you think about that was that a possibility? My best guess is what, not only did they vote, but they explained their rationale for the vote, and that all five of those justices we now see in the majority, mean it very clear not only that they were going to allow the Mississippi abortion law to go,

anti-abortion law to go to facts, but that they were intended to do so by explicitly overruling KC, another case subsequent to row, and row. And for someone like the Chief Justice who really believes so strongly in the legitimacy of the court, I don't think my best guess is he was unwilling to sign on to something like that. That's the kind of enterprise that I think he would find very, very destructive to the court in its legitimacy legitimacy and it's kind

of strength within our American constitutional system. And so my guess is they were so clear that that's what they wanted to do. He was unwilling to sign on to that. That's my question. Then he just get out of the way. Yeah, there's no way, I think in history, there's no way to, unlike Obamacare, there's no way to kind of be in the middle between overruling Casey and Rowan, not overruling Casey versus Rowan. And there's no way to overrule those cases and kind of soften the

fact that you are overturning 50 years of established constitutional precedent. Although this says draft and they've come out and said it's draft, how close to the final result do you think this is? And is Alito going to be the author? I mean, does that ever change? Does, I mean, because someone put a lot of work into it, it's a very long, very detailed decision that talks about history. And I was surprised by the number you said,

a zillion briefs, the number of amicus briefs that, there's always amicus briefs that go to the Supreme Court. But this seemed to have a lot of interest from a lot of people. In fact, they said that expressly 26 states asked them to overturn Ro and give it the power back to them. So, it seems like there was just a lot of input in this.

And so, I'm just trying to get a sense. And I think a lot of people want to know that especially people who are outside protesting, can they still shape the decision, can they still sway votes, can they, how close to a final draft do we think this is? So, there is, in a normal case, when a draft like this is circulated, there would be changes that would be made. The judges wouldn't negotiate with each other. There are clearly things in this draft that are written to be attractive to Amy Coney Barrett. There are things in this draft that are written to be attractive to Amy Coney Barrett. There are things in this draft that are written to be attractive to Justice Thomas, the discussion

of eugenics and the footnote. That's what a majority judge does when they write a draft. They really want to bring everyone on their side together and say what they think the people on their side want them want to be set. And Robbie, when you say attractive, you mean language or concepts put in there to get their vote for the old. I think they already had their vote. I assume they already had their vote.

But I think when writing it, he wanted to, you know, everyone who was taking such a really a dramatic radical gigantic step, he wanted them all to be very happy about it. I assume anyone would be. And so there's an effort to kind of weave in the strongest points and the points that appeal to the justices and the majority. And in a normal case, that would change over time. There would be further discussion. They would write things in response to whatever is being said in the dissents. You often see an opinion as kind of an interchange between the dissenting opinion and the majority opinion

that could have happened here. And yes, I'm not a historian at Supreme Court and none of this is public, but I did clerk for the New York Court of Appeals about 700 years ago, which is similar, the highest court in New York. And I can tell you that votes change, that votes would be taken after argument,

and that votes change, including this is public, very, very, there's a big deal at the time, and the gay adoption case in New York, in which New York first allowed gay parents to adopt children as second parents, and I worked as a clerk for Judge Kaye, on that opinion back in 1996. No, yes, 1996.

So there's no doubt that all that happens. Here, however, something very different has happened. By leaking the draft, the way it has been leaked. Just as a matter of this, there's no legal, I'm no legal, junior genius here. I'm just talking about human nature. It makes it very hard, I think, for anything to change very much. And that may have been, no one knows, but that may have been the motive on the part of whoever leaked it.

Right. It's a leaker, partly for it. Oh, interesting. You're saying it could be a conservative person. Sorry, yeah. If the leaker is a conservative, not a junior clerk for like Kagan, but a conservative who wanted to lock in the votes, then you're right. It's now gone from wet cement to very hardening cement right before our eyes. Because they don't want to look political. It doesn't even need to necessarily

be the votes. It's the language. This is a maximalist radical opinion written in the phraseology of legal conservatives, but it is a radical step. He basically is wiping away 50 years of constitutional precedent that women have relied on in this country for many, many years that the justices in 1992 did not think could be wiped away, including conservative justices, justices O'Connor and Justice Kennedy. But he is calling into question a whole line of constitutional jurisprudence that gives Americans the right to use birth control, that gives whites the right to marry blacks, that gives gay people the right to have sex in the privacy of their homes and that ultimately led to marriage equality. So, if it's-

And why is- And Robbie stop right there for a minute. And why is that? That's because the framers, it's not part of the constitutional history going back to the 1800s. All of those things that you just identified under Alitos analysis? Hey, can I get at its highest level? Yes, what says in this draft is this concept of

substantive due process, which is what is called by lawyers, but it means certain rights that are inalienable in human beings about how they conduct their personal fares are not since they are not specified anywhere in the constitution. There is no constitutional right to them. Yeah, that is that is the scariest part when you're looking at some of the takeaways, key passages of the opinion which we've all scrambled to read, not just for this podcast, but just in life. When you see that, the reason that he so cavalierly with his textualist approach got rid of that settled law, is he said, the right to abortion is not deeply rooted

in our nation's history and traditions. Whatever happened when you and I, all three of us were in law school about the Constitution being a living, breathing document whose evolving social mores are supposed to be read onto it by the Justices sitting. That's gone. It's just if you got the numbers, you just take away rights. That's where we're at now. Well, especially because when they wrote the Bill of Rights, they used deliberately vague language, as well as the 13th, 14th, and the 15th of that. Right, it's not a code, it's not a code book.

Right. Right, which is why it's been interpreted over the years to apply to things like search warrants for cell phones. Those didn't exist at the time. I mean, there's plenty of things that aren't listed in the Constitution where the Constitution has been applied to. And it's interesting where in this particular instance,

as you said, just because it's not written in there, they're saying, therefore, it doesn't apply. And of course, everybody says, well, what's next? What's coming next? And there was sort of a, there was a one sentence towards the end, don't worry, we only apply this to the special circumstance of abortion. This doesn't apply to anything else, but I found that to be cold comfort. I did not buy that one bit given. So we just read in that, that's a page, hold on, third time. Right.

So you're like, he does do that, but the problem is before that, in page after page after page, he eviscerates the legal underpinnings that led to all those other decisions. So it's one thing to say, well, I'm not saying anything about it now, but when you've spent the last 20 pages explaining why that whole area of constitutional jurisprudence is dead wrong, it's hard to imagine for sure people will challenge it in cases.

No question about that. And it's hard to imagine that this report wouldn't be open to hearing those cases, have an open mind about the results, and very easily probably reach the same result there. Yeah, I mean, they were sorry, Kerry, good. No, I was just going to say, Alito does say, okay, okay, we've established it's not in there, and there's other things that aren't in there as well. So then the next thing we look to, you know, they sort of take the different things you can look to and one of the things they look to is this concept of of starry decisis or historical precedent. And, you know, and it makes you sort of think about

history in ways that certainly you wonder what is it about the, you know, this country was founded in a rebellion from England. And yet they look to common law England. And they're going back to, at one point, there are the 1300s and then the 1600s and the 1800s. And I'm thinking, what was so magical about those times in history? And at what point does something become history? I mean, Rose was decided 50 years ago.

Isn't that history at this point? But they talk about this magical date of the founding of this country and when these, you know, when, when sort of these rights were, were listed, but these were all written by men. Women didn't have rights at the time. I mean, so it just, it just doesn't make any sense. It's like they are, are talking about history when it suits them, and then when it doesn't suit them, they sort of, suit them, they sort of pull back on it. And at one point when they were talking about, okay, but it's okay to overrule bad decisions.

Roe was bad from the beginning. Roe was badly decided from the beginning. They list, I think it's two pages of footnotes of all the times that Supreme Court precedent has been overruled because of bad decisions, but they call out three of them. And one of them, they call out and they mention who the judge was in that decision. And it was Ruth Bader Ginsburg.

And they're like, see, even she agrees. But then they talk about all the other decisions they don't mention who authored them, but it almost seemed like this code for we for we're gonna throw it in your face, you know, all these people that you hold up and revere like Justice Ginsburg, even she agrees that these are the standards that apply. But it just seemed, the decision just seemed really, at least for me, just very,

like this is the result that they wanted and they're gonna figure out a way to fit history precedent and the law into the result that they wanted. Well, let me show you the story, the sizes intellectual dishonesty that he practiced. At one point he says the weakest claim of story, the sizes is on constitutional principles. He said when we're talking about interpreting the constitution, the weakest hold on storyry decisis is present. But then later on, when he, when he delivers the opinion, the draft opinion, which is, I agree with Robbie now, it's locking into wet into dry cement, he says, and it's based on starry decisis. I mean, which is it, man?

Are you doing what Karen just said? Are you reverse engineering? It's a result driven, which we all know it is. They have the numbers. And so they're clearing the shelves for as long as they can of everything that matters to them and was settled law for us from a progressive democratic standpoint. So let me say a few things.

So first of all, for the last couple of years, since Justice Kennedy left the court, we have seen decision after decision where this court, and Chief Justice Roberts, you can see, growing increasingly uncomfortable with this, but in which the Supreme Court has shown a greater and greater disregard for precedent or starting decisives.

greater and greater disregard for precedent or starting to sizes. In statutory cases, in criminal cases, in the First Amendment context in particular, they have in recent years overruled cases at a faster pace than I think ever before, surely, every before in recent Supreme Court history. And so there were warning signs that this was coming and there's a good argument that all of that

was a building block to what happened here. But as my friend, Dali, Elizabeth, points out today in her piece, or yes, I think she wrote it late last night, or early this morning, in slates, you don't have a lead, if there's no such thing as stary decisis, if people can't depend on the fact that a decision of the court, much less the Supreme Court, can be relied upon and is binding in future

situations. It's hard to see the continued health and arguably even the continued legitimacy of our court system and certainly the Supreme Court. And I could not disagree more strenuously with Justice Alito about precedent in the context of constitutional cases when the Supreme Court interprets a clause of the Constitution to extend a right to a minority group for the first time, never before, never before, in the history of our country has that right ever been taken away. So it's not only radical in terms of its view of starry decisies, it's willingness to overturn precedent, it's willingness to overlook history. But never before in the history of

our country and our, and I believe our great constitution, has our system extended a right to someone and then said 50 years later, sorry, just kidding, didn't really mean it women. It's no longer a right. And ironically, in the Lawrence case, which overturned Bowers v. Hardwick, which gave gay people the right to have intimate relations in privacy in their own homes. Justice Kennedy wrote in that decision that Bowers was wrong when it was decided and it was wrong today. That's exactly the language pretty much, that Justice Alito uses in this draft, but

Justice Alito is expressing a willingness now to overturn Lawrence. So what is it, what is it, I'm gonna say now, sorry, actually Bowers was right when it was decided and is right today. And where it's an example, Karen, use of sticking it to us and sticking it to us by using the language from Bowers. We've talked about precedent and over a hundred podcasts here and and we're actually peers at Karen's close to it in terms of vintage from law school. When I left law school, I thought, all right, I'm gonna learn this body of law, especially constitutional doctrine. I'm gonna be pretty well set for a while. And now every two years or three years only because the paraphrase just

is so to my or only because they've got the numbers and it's politics. That's the only thing that's changed. It's not that the country has gotten more against abortion since it was ruled upon. Today in a poll, 57% are totally in favor of all levels of abortion. It's not that. It's the numbers have changed. Look at the key votes in Casey. Justice Kennedy, personally, I'm quite confident, does not like abortion. He's a religious Catholic, and I'm quite confident his personal views at abortion is a bad thing. But in 1992, given 20 years of precedent, he felt bound, duty bound, as a Justice Supreme Court to uphold row because so many women had relied on it for so long. Well, now they've

relied on it twice as long. I mean, look, nobody like nobody likes abortion. Nobody wakes up and says, guess what? I really am excited. I get to do today. You know, it's not something you want to do. It's not something you take lightly. People don't use it as a form of birth control. Anyone who's ever had to make the decision to have an abortion, whether it's because you are sexually assaulted, raped, you just don't want the child, you know, you're just not ready to have a child, whether the child has some sort of congenital issue that you are ill equipped to deal with whatever the issue is. That entire process, that is so emotional

and it's so personal and what you have to go through and the things that you go through to do it, but nobody's excited about it, nobody wants to do it. And it is such a personal choice that absolutely, I mean, it's amazing to me how this decision says, this has to be left up to the States. No, it has to be left up to the person. It has to be left up to the individual woman who is making this decision about her body, about her life, and about what she's going to do. And the case was, I haven't

been this upset professionally, I think ever. I can upset my personal life about things, you know, kids, whatever. I have, I have so upset by this in ways that I can't even express, you know, it's, and it's, it's, I just can't believe what this case means for future cases, for future rights, for women in this country in general. I mean, you know, the equal rights amendment was never passed. And so, you know, really the, the, the people who wrote the Constitution, they're all men, and they are all, you know, really the people who wrote the Constitution, they're all men, and they are all, and women didn't have the same rights at that time.

And for a long, long time, the equal rights amendment was proposed and it was never passed. So what's going to happen? Are we now going to start losing other rights as well? But even if we don't lose any other rights, and even if Justice Alito is correct that this is just about abortion, that's bad enough. I mean, it's not like women are going to stop having abortions and I have a

couple of logistical questions for you. So one, there's a couple of questions that people have asked and that people are curious about. One in particular, and I'll ask these two questions together. One is, does this have to be reg, does this decision say that only the states can legislate it? Because it's unclear whether the federal government, whether they leave open the possibility, assuming the Senate has the 60 votes and, you know, whatever, assuming they can get it passed and signed, can this be legislated federally or does this have to be with the state? And I think the, I think the decision personally is unclear as to that. They make it seem like the state,

but people also elect their federal, the federal legislatures too. So I wasn't sure, and I'd love to get your thoughts on that. And the other question I have legislatively is like, I'm not even going to ask that. I'm saying, these are easy questions for you.

I was very going to take notes in long term. It's like a press conference. Two questions. Two questions. No, because I cannot tell you when this came, the only thing that gave me comfort when this came down was the fact that you were coming on the show. And I was going to get, we were going to get to ask you all these questions because I'm so, I have so many of them. So another question is, is, let's say, half the states give or take, will outlaw or ban abortion and half the states will continue to allow abortion. Can women, can those states that outlaw, outlaw it,

can they also prevent women from traveling, from citizens and residents of a particular state, from traveling to other states, you know, the way some people are fearing, that they'll get stopped at the border of California going into Nevada or wherever, and where are you going? Are you pregnant asking questions, et cetera? Can you legislate that?

Can you stop that? Okay, let me take one. Let me take one from Goethe Ronnie. Let me try to take these. I'm actually gonna go back to. So one, I, I too, like I remember I found about this, I found out about this last night. I was just about to go to sleep and I made the mistake of looking on my iPad to see what was going on and I saw this and like a lot of great tragedies. Honestly, I think I always remember where I was. I remember obviously

where I was on 9 11. I'm sure I will always remember where I was. I remember obviously where I was on 9-11. I'm sure I will always remember where I was and how I was when I first heard this news. I think a lot of Americans, particularly American women, are gonna feel that way. To the degree of intrusion that governments are now allowed to have into the personal health and decisions of women is so inconsistent with traditional federalist society views about limited government, right?

So I mean, I think a lot of the conservatives had been moving away from libertarianism for quite some time. But if you look at decision, it's not a libertarian, it's not a limited government decision. It's a decision that government, you know, someone saying very like Margaret Atwood handmade in any ways, has the right to regulate the reproductive health and the reproductive decisions of women. And that is not what you would hear from people in this part, in this part of kind of the legal structure, legal jurisprudence, legal law schools, et cetera, in any other context.

Only when it comes to women is radical intrusion into personal decisions, okay. With respect to whether the state or federal government could pass a law abortion. That's gonna depend, believe it or not, on what the conservative majority on this court believes is the limits of the power of the federal government. Remember in Obamacare, there was great debate about this,

and most of the conservatives believe that there was not authority for the federal government to pass Obam Obama care either under the Commerce Clause or ultimately as Chief Justice Roberts came in to save it under the taxing clause. Here, while I think a lot of them would agree to it, they are going to need to find some federal basis of power to legislate a law that would prohibit abortionation. Why? They may well do that. They may think that the Commerce Clause gives them that right here. So, Robbie, let me interrupt for one second just so we can bring our audience up to speed.

If the federal government doesn't have a hook, the Congress doesn't have a hook within federal power reserved to it or given to it by the Constitution. Otherwise, it's reserved to the states. Then they're not able to legislate. Oftentimes, they try to use, let's say, the Commerce Clause to try to get in on regulating something. I'm not sure that fits here. Although, if people are trying to go cross-border to exercise their right to an abortion in another state,

maybe that does implicate interstate something. But you're right. If they don't find that, or if they think they found it past the law, somehow get enough votes and they've been short already, they were out. They were only at a 50 mark and they need 60. I know that a Schumer is going to try to do it again, but he's never going to get to 60 right now, especially maybe maybe it's a few more. Yeah, but you know what? Put them on record. No, no, no, that's what they're going to do that. They're going to do that. They're going to go on the record. But my point is, even if they were to pass that, your point, Rob, is just as an Obamacare,

there will be a suit challenging the federal government. And then Supreme Court justices, the same group we're dealing with here are gonna have to decide whether the federal government, the Congress properly exercised its power or not, and or not, and if not, then it's gonna be left as Alito has suggested to the individual, you know, state houses to make this decision. Well, let me put it this way. I'm gonna go out on a limb here.

I think it is hard to reconcile a vote in Obamacare that the federal government did not have power under the Commerce Clause or the Taxing Clause to create Obamacare. And at the same time, take the position that the federal government does have the power to outlaw, to prohibit, especially criminally prohibit, abortion nationwide. I'm not telling you that someone won't be able to reconcile those two things, but at least at the surface, the logic seems inconsistent. And so that will be the big issue. And, you know, they've just said they changed their minds all the time.

So maybe they can, started to say, it doesn't matter that much, and they can change their minds on that. You know what this this one of the, there were so many sad comments that will be used against progressive rights going forward if Alito's majority becomes the majority opinion of the court. One of them was we, it's just this cavalier,

we live in an ivory tower. We're just here calling balls and strikes. It doesn't matter. It doesn't concern us, he said, I'm paraphrasing what happens after we issue this opinion. That is not our concern. What happens in America based on the ruling. We're just here to say what the Constitution allows. Are you basically saying we don't live in the real world? Is what they're saying? I don't think that over what their homes would have agreed with that statement. I think that would be exactly the opposite.

Right. The final question you asked is about travel. And there you have 13th Amendment issues. Believe it or not, the 13th Amendment which freed this lays has been interpreted as creating a constitutional right to travel across state lines. And if something is legal in one state and illegal another, you are still allowed to cross the state line and do something in the state words legal.

IE, let's use an obvious example, smoke pot in Colorado, even if you can't smoke pot in Texas. And that's a pretty established legal principle. Even though it's not enumerated. Even though it's not enumerated. Even though it's not enumerated. But that principle is going to be put very much to the test. When states like Texas start passing laws that say, you cannot go to New York or California

or wherever and get an abortion. If you do, we will criminally prosecute you. Either when you get back or we may even try to extra write you to Texas. So we're going to have a claim that your unborn fetus is a Texas citizen. And if you murder this Texas citizen, we have a right to prosecute you. So we're going to have New York versus Texas, actually, states against each other before this Supreme Court at some point on this kind of issue. I think no question. Yep. For sure. So the decision talked a little bit about kind of is this a right of privacy or is this sort of a right to liberty? I mean, what

difference do those does that matter? whether this is one versus the other? And why was there so much talk about those sorts of distinctions and the types of scrutiny, for example, that this might, that having a right to an abortion would have? Look, that is all discussion about, I think intended to establish that there is no clear cogent explicit right in the Constitution to have the kind of, to be able to make the decision to have an abortion.

And so there's a lot of, and they are right, and Justice Ginsburg said this herself, that if you go back to the original row decision, I think a lot of people would have written it in a different way. We actually submitted an amicus brief in this case, on behalf of some law professors, that he talks about in the draft opinion, he doesn't like it very much,

in which we talked about the equal protection rights of women to be able to order their lives and decide whether or not to have children and one to have children. That almost doesn't matter. There's almost beside the point though, when you think about the concept of stary decisives again, that might have been an argument in a case brought two years after row or even in a case brought five years before Casey. But once Casey was decided in 1992, and the justices said that in this context, Stary decided this is incredibly

important, and these rights are now woven into the fabric of our constitutional system. To then go back and kind of have these almost law school type debates about what's the best grounding for the liberty interested state, or what would have been a better analytical or theoretical basis or lack of basis to discuss these rights, honestly, as a law school exercise,

because what has happened is 50 years of reliance and expectation and rights that women had that are now again for the very first time in our nation's history, at least to my knowledge being taken away. Robbie, let me, let's, let's leave on this note. I want to be respectful of your time. Let's leave on this note. Let's assume for the purposes of the last few minutes that this opinion by Alito becomes the majority opinion without without many changes, concurrences and descends some sort of flying around, but this is it. What do you think it means? We touched on it earlier. What do you think? What do you think? What do you think it means for the future of rights? Where does it go from here? And what can our audience do about it in terms of their own state houses or at the ballot box?

Is it, you know, marching is great. And I'm into participatory democracy, but what can people do about it who don't agree with the decision made by nine people wearing black robes sitting at the Supreme Court? So if this decision are something substantially like it is issued by the Supreme Court and I think it's fair to assume that that's what will happen. I think essentially you answered your question

in asking the question, which is we cannot look to the Supreme Court at least as it's currently constituted as a force that will protect constitutional rights in our society. And the only institutions we have to look to are the executive and the legislative branches, which means the only thing you could do and I agree rallies are great, but what's far more important than rallies are is voting and that the only way to enforce those rights and protect those rights going forward is to vote and to get the numbers out to vote both at the state level, at the local level and certainly at the federal level.

That statement, which just, I mean, literally took my breath away that you just made, which is so right on and right, is that we can no longer look to the US Supreme Court to protect our constitutional rights. I mean, they keep talking about the framers and the founding fathers. I am sure, justices that we all admired in law school are spinning in their graves, as maybe even John Marshall is about what is just transpired. I couldn't ask for and Karen and I couldn't ask for a better guess today than you.

It happened by happenstance. We were supposed to be talking about and I'll extend an invitation to you to come back on the show. I'll come back and talk about the Florida case. Yeah, it's a great case. So, so, Rob. Can you just give us like just a procedural, what to expect next in the, in the, don't say gay, in the case that you brought it, it's a fascinating case that,

that just is amazing. And the stories that you put in there of the plaintiffs and their individual stories and how they're affected, I had chills when I was reading that. I just couldn't believe what they go through and what you're doing there is so important. So can you just give us a little bit

sort of what's next in that? So right now that we don't have much agreed to with the state, you'll be shocked to learn that we're not having a lot of agreement on schedule. So right now all that's agreed to is that we are going to amend our complaint by May 27th and that the state will then move to dismiss 30 days after that. We take the position, and this has all been said to the court,

so it's public, that at the same time, the motion to dismisses decided the judge should also entertain our arguments for preliminary injunction since there's a great overlap between those two arguments. It's kind of silly. I've never done this in a preliminary injunction context before where you first litigate a motion to dismiss and've never done this in a preliminary injunction context before, where you first litigate emotions to dismiss, and then you litigate the preliminary injunction. So the judge is going to have to decide that issue.

But we take the position that the court should entertain in preliminary injunction. He's going to have, the judge will have lots of expert affidavits from a lot of experts, including nation, nationally renowned psychologists, both for adolescent psychology and for early childhood psychology. And we are going to make the case that this law is unconstitutional. And again, I hate to be overly dramatic.

I'm not really being overly dramatic here, that children will be harmed and probably sadly, adolescents will commit suicide if this law as enacted and as broadly as it's enacted goes into effect and kids are bullied and written out and not acknowledged and not even helped by school guidance counselors if they have issues about being gay. If that's the state of affairs in the state of Florida. So for our audience, you know, who don't necessarily read civil or criminal complaints regularly, this particular complaint is really worth reading. It doesn't read like, you know, it's written in a way that people can really understand

not just the law, but also just the heart and soul of what's at stake here. And the real world examples that you give about, what does this mean that two parents, gay parents, can't come to school for a parent-teacher conference or they can't refer to them as my two dads. Or just all the ways, this isn't just about textbooks. And it's just all the ways this isn't just about textbooks and it's just

all of the implications that that this has for real world real life people who are living their lives and just the stories that that you put in this complaint about about these young kids and what they went through and and how they've had to, you know, I can't wait to live in a place in a society where you don't have to come out. Where it's just, it's not a thing. You're just you and you get to be you and you don't have to live in the shadows and you don't have to whisper. And your complaint, I think, is worth people.

And I think we should, if we can, if we can link to it. Yeah, we're going to post. We're going to post. Yeah, for people to read. It's just so beautifully written as something that really frames the issue of why this is so important and why this case is so consequential. I was talking recently to one of the experts in the case and she was, she's an expert in early childhood psychology. And she was explained to me, it makes sense if you think about it, that the whole point of K-3, which is one of the sectors at the SLAWS Target Act, the whole point of K-3 education is to really kind of socialize kids.

It's to teach kids to stand in line, to share, to be part of a community, to socialize them. That's kind of what kindergarten first grade, second grade are all about. And she said, if you have a kid who's sitting in a first grade class, and he says to his teacher, why does Jimmy over there have two moms? And the teacher can't answer the question or looks anxious and not answer the question, or does anything else like that. She said, look, kids are smart. They will get that there's an issue and you are acting in a way that is completely counter to the whole point of the education in the first place, which is to teach the kids to be part of a community and to be nice to each other and to share

yada yada. She says, that's, it's exactly opposite to what you're trying to achieve. There's no way to have this law be consistent with a good early childhood education for anyone. And the only thing that kids should be reading sexual content or porn or anything like that. Right, and they call it grooming. They're, you know, they're, you're grooming them by, you know, acknowledging just people that people are different.

It's just outrageous Tucker Carlson BS to make create wedges in the American people. None of that is happening. None of this is no critical. Is there doing it on the backs of kids? Well, of course. You want to pick on me. Well, I agree.

I'm some four migrator in the panhandle. I'm sure you caught it when DeSant designed the bill on critical race theory, which is a critical race theory Martin thinking day, right? It's something else. He had black children behind him holding up signs with the you know the strike through it. I mean you're using children as as props I mean they do it all the time. Black children as props on this issue. I mean, it's really disgusting.

One quick question, Robbie, why Northern District of Florida is that because of Tallahassee? Why that? If you see the governor, and you see very sad entity, you have to do with Tallahassee. You gotta do it in Tallahassee.

So, and who's your judge? Guy by the name of Windsor without a D, because my client in Windsor was Windsor with the right right who worked in the Solicitor General's office in Florida. He's been on the bench a few years. All right, I understand. Okay. Well, Robbie Kaplan, thank you so much for joining the midweek edition of legal AF, Michael Popock and Karen Friedman, Agnifalo, and we will follow all of your cases moving forward and you have an open invitation to join us anytime you'd like and we'll reach out

and ping you again to come back and share with our audience. I'm happy to be out again. Thank you. Thank you so much. Thank you Michael. And that group by the way, when he announced the Don't Say Gay Law, I guarantee you just given statistics that one of the 40 kids running in there is going to turn out to be gay.

I guarantee you, I just. I was in Florida this weekend and as soon as I got off the plane, literally the first words out of my mouth, I just said, gay. I had to. I had to. I was here as a football. Someday that poor boy or girl will look back on this and imagine how they're going to feel. That's that's scarring in in in of itself. It's just graceful. It's just graceful. It's just we're we're heading in the absolute wrong direction, and it's absolutely upsetting, and I don't understand actually how this is happening. I never thought it's stated I should be

pattering itself after Hungary or Russia, but that's what's happening down the border right now. Yeah, and throughout the country, led by certain Republican groups agreed. So we'll conclude this edition of Legal AF midweek shout out to the Midas Mighty and the Legal AFers. You can get this podcast every place you get your podcast from

and it will be on YouTube this evening, of course, and on video throughout with a live chat that maybe will be graced with the participation of Robbie Cap, we will say, good night everybody. will be graced with the participation of Robbie Capoe. We'll see. Good night, everybody.