Legal AF by MeidasTouch - Special Edition: Reaction to oral argument in Supreme Court case seeking overturn of Roe v. Wade

Episode Date: December 2, 2021

On this Special Abortion Rights Edition of the top-rated weekly US law and politics news analysis podcast -- MeidasTouch’s LegalAF anchored by MT founder and civil rights lawyer, Ben Meiselas and national trial lawyer and strategist, Michael Popok, discuss today’s (Tuesday December 1, 2021) 2-hour, US Supreme Court oral argument for Dobbs v. Jackson Women’s Health, addressing the issue of whether a state can ban pre-viability abortions. The 9 justices wasted no time getting to the heart and heat of the matter: Does the Constitution and the current majority of the Justices support a woman’s right to choose and have bodily autonomy and integrity, or don’t they? Ben and Popok line up the current justice’s from Left (Breyer, Sotomayor, Kagan) to Far Right (Roberts, Gorsuch, Barrett, Kavanaugh, Alito and Thomas), and predict how this case and the majority opinion shakes out by the Summer. Reminder and Programming Note:  Watch a live recording of Legal AF pod each Saturday night at 7 pm ET on YouTube, followed by the audio pod dropping each Sunday morning. Click here to subscribe, follow + and review: https://pod.link/1580828595 Follow Legal AF by MeidasTouch on Twitter here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Midas Touch Legal AF Special edition by popular demand Ben Micellis joined by my co-host Michael Popock bringing you analysis from this morning's oral argument in the Supreme Court case dobs versus versus Jackson Women's Health Organization, a direct challenge to the abortion rights precedent established by the 1973 Supreme Court ruling Roe v. Wade and reaffirmed by the Planned Parenthood versus Casey decision in 1992, Michael Popack, your immediate reactions to the oral argument and the justices response there too. Borschen as a constitutional right, pre-viability is beyond unlife support. There's just not going to be with the supermajority conservative vote. There's just not going to be based on the oral argument that went on for almost two hours today. Enough votes to preserve the Roe v. Wade plan parenthood versus Casey structure around the constitutional right of previability abortion.

Full stop period. The vote is going to break down almost the way you and I talked about it over the summer. Robberts, based on his questioning, Chief Justice Roberts, looks like he's going to be on the side of keeping the abortion right previability in Roe v. Wade and in Casey, but pairing it back from the present 24 weeks of the demarcation of viable versus non-viable and rolling it back to Mississippi's 15 weeks. We know that because he even asked lawyers on both sides, but mainly the lawyer on the side of the abortion right. Why isn't 15 weeks enough? Why can't a woman get a decision by the 15th week? And so it looks like he's trying the questioning was not so much a real question for which he wanted a response. It was a signal of his

position to the other nine justices. And more importantly or more directly, a signal to the only two justices that may be in play. This is exactly the way you and I described it in the summer. If he doesn't get gorsuch or any Coney Barrett over to his side to keep abortion, but limited to 15 weeks of viability, if he doesn't get those votes, then it's over. Then it will be no longer be a constitutional right to pre-viability abortion. It will be a state by state decision and 26 states already have geared up and ready to go

to ban abortion in their state if they're given the green light by this US Supreme Court. Just as Kavanaugh asked, why overturning Roe v. Wade, it wasn't so much a question as his position on the matter, asked why overturning Roe v. Wade would not be in keeping with quote, the most consequential cases in the country's history, including those establishing racial equality, Miranda rights, and marriage equality. As Justice Kavanaugh said, that's all overruled precedent. Amy Coney Barrett discussed, gave statements. We can say they were

questions, but they were more statements saying that at this point, women should just, rather than avail themselves of a constitutional right of abortion, just focus on adoption, uh, was one of the questions that she asked and she's no, no, not just adoption, safe havens, meaning abandonment of your child without repercussions. She said now that there are safe haven laws in every state, allowing someone who can take an unwanted pregnancy and just donate it at the local fire department. Why isn't that enough? Why do we still need the abortion right? So Popak, tell us where you see the votes lining up, maybe go through each of the justices.

Obviously, you had Sotomayor, Kagan. And basically, the writing was on the walls that they knew that Roe v Wade was likely going to be overturned in this ruling and their defense to that to me seemed to basically be saying okay you do that you plan on do that this institution this Supreme Court has no credibility anymore. So you go ahead and do that, you've destroyed the United States Supreme Court. So maybe Popak talk us through what those justices said and where the votes are lining up. Yeah, well, let's start with the vote count. You've got based on the oral argument in just their past rulings in the camp that would keep Roe v. Aide and Casey in place and intact, allowing for pre-viability abortions from 24 weeks below.

You have firmly rooted Stephen Breyer, who led a lot of the aggressive questioning of the attorney general for Mississippi today. He let off. It really started with Breyer. Then it got picked up by Sotomayor, who had one of the classic Sotomayor lines today, exactly what you just said Ben. She said, and this was a question, but one of those not questions. This was her declaration, her line in the sand, South of Mayor said, well, this institution of the Supreme Court survived the stench that this creates in public perception, that the Constitution and its reading by the Supreme Court are just political acts.

Now, the sponsors of this bill, the House bill in Mississippi, said we're doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said, we're doing it because we have new justices on the Supreme Court. court. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I mean, I don't think you can put it any finer than that. So you had Kagan right behind her. I mean, literally followed right behind her in the questioning of the Mississippi Attorney General, who followed through with the same thing and focused on, as it's such a my

art. Well, you say there's been advancements in medical science since Casey in 1992 that makes a piece more viable earlier. What are those advances? And he really double talked his way through, I listened to the oral arguments today as I know you did And he really double talked his way through, I listened to the oral arguments today as I know you did. He really double talked his way through, he's well, there's advances, you know, you know, there's there's there's things that show that, you know, that there's pain and suffering for for this entity, this whatever it is at prior to

24 weeks or 15 weeks or 12 weeks. And you know, son ofayor did a good job saying, you know, there's on recorded science that brain dead people, if you tickle or touch their leg or arm will recoil, doesn't mean they're alive. It just means that there is a reaction. So she pushed back really hard on any advancements that would make the teachings of Casey and Roe versus Wade change. And Briar came right out of the box and said, Roe and Casey are watershed landmark cases. There's only been a handful of them in the history of the Supreme Court. And we should not lightly overturn them under very decisive analysis, unless there is an overwhelming new thinking that allows us to walk away from that precedent, we should never do it lightly. In fact, there's only been about 12 cases in 250 years in which the Supreme Court has reversed a watershed or landmark case. Now, you're right on point, as usual, Ben, about

somebody like Kavanaugh. Hearing Kavanaugh talk, he's literally a talking federalist society totem, because I've been hearing for the last 30 years, the federalist society argument against abortion is always, let's look at slavery. It's always abortion, direct line to slavery. That slavery, we were wrong as a Supreme Court in the Dred Scott decision when Dreds, which is a black mark on the Supreme Court in our US history, that in the Supreme Court decision of Dred Scott, in the 1800s, they ruled that slavery was basically fine. And then of course, it was later overturned, not by a Supreme Court ruling, but by the 13th and 14th amendment to the Constitution

passed by the people and the legislatures. They often, and then they also, because they like to get liberals' goat, they also talk about plusy versus Ferguson. Well, plusy versus Ferguson for our legal a furs out there was the original six to three digit of the court that said that separate but equal educational institutions of high of public school. Blacks going to a black school whites going to a white school was fine and constitutional as long as they were equal. And of course,

in brown versus the Board of Education, the Supreme Court said, what were we thinking that could never be equal, separate could never be equal, and there has to be integration of the public school system. So the conservatives, the radical right, right, right, right, right, right, right, right, the radical right, the super majority radical right of the Supreme Court loves to use things like plus he versus Ferguson, slavery, brown versus Board of Education, public, you know, racism and public education against the abortion argument. So I was not surprised when Kavanaugh, I'm sorry, yes, when Kavanaugh said, basically, we should be neutral on this issue as a Supreme

Court. We should return to neutrality and let the people decide, which is how the Mississippi Attorney General started his oral argument today. Supreme Court, you made a giant mess of things 50 years ago. Just let the people decide, which makes zero sense, Ben, if what we're talking about is a fundamental right to bodily autonomy and integrity and privacy, which is the basis of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of, of as anything in the first amendment or the second amendment. We don't let the states decide whether they're going to abide by the first amendment. We don't even let the states decide whether they're going to abide by the second amendment. So why are we letting 26 states or more make a decision about a woman's right to choose? That's where Kavanaugh's going.

The problem is, Gorsuch's only comment or one of his only comments during the oral argument today does not bode well for Roberts being able to drag him over to the side of preserving the right to choose. Gorsage's comment was a little bit like, well, I don't really see a constitutional right to abortion anywhere in the literal text of the Constitution, which is true, but there's lots of things that aren't in the literal text of the Constitution, which is true, but there's lots of things that aren't in the literal text of the Constitution that are considered to be fundamental rights. And he said, he drew his own line in the sand against Justice Roberts. Gorsuch said, I think it's all or nothing. I think we either have an abortion right, constitutionally protected, pre-viability under Casey

and grovyweight, or we don't. And there's no middle ground. So he's already staking out sort of the anti-robert's position to be the swing vote. But I don't know where the swing goes. And popok, even the Roberts position, though, is still against where the precedent is by just preserving the right to choose before that 15 weeks, basically saying, Hey, this Mississippi ban, that's okay. But in terms of, in terms of an overall kind of ban, in terms of overturning, Robeweight, we shouldn't overturn Robeweight here. And we shouldn't just totally ban that right at this stage. And then the other radical right

justices like Clarence Thomas are saying just abolish the right. It's not a fundamental right. Get rid of the right to choose as a fundamental right. Did it surprise you? And it's a loaded question that just as Clarence Thomas, who never really asks any questions during oral argument, was the first person to ask a question during this oral argument. No, I texted you and your brother as well. It's listening to the oral argument. And I said, Oh, look at this, Clarence Thomas, Clarence Thomas, the only justice on the current Supreme Court that was on the court in 1992 for Casey. So he's been on the court that long and was in the minority, of course, and lost at Casey,

but he's made it clear. He is not minst words. He has enumerous other cases, even cases not dealing with abortion come out in desense and in footnotes and said the decision in Casey was wrong. There is no constitutional, should be no constitutional right to an abortion. My problem is he did ask a question. I sort of was smack in my forehead, he did ask a question of the solicitor general. He didn't think he had a great response to

it, but he asked a question about can you continue to charge a person, a woman who ingest cocaine during pre-viability of the fetus for a crime under your analysis. Can you or can't you? And you know, he's trying to trap her. And there's an easy answer to that. The answer is up until the point the woman makes the decision to choose, which is up to 24 weeks. If she does anything prior to that to harm whatever is growing inside of her, I think the

state then on that sliding scale of the state's interest versus the private woman's interest. I think the state probably takes over and says, you know what, until you make the decision on viability and pre-viability abortion, we don't want you harming yourself or what's growing inside of you. The solicitor general did not do that. She like swung and missed. And there was a couple of cases where I thought she was not as prepared, even though she

was arguing for the government, an amicus position, as opposed to the Jackson women's health and Mississippi lawyers who were arguing as parties in the case on the issue. So I didn't think she did as great as she could have, but I know I was a bus all. I don't think you, I anybody else would have been able to make their way through these agendas. You've got Alito anti abortion, taken off the constitutional books. You've got Clarence Thomas, the same, Kavanaugh is obviously the same. That's three. And then you've, you know, you've got Thomas Alito, Kavanaugh. And then the question is on Gorsuch, where is he fit? And he's looks like he's

leaning that way, leaning towards the right, right wing. And Amy Coney Barrett, who's only contributions to today's moral argument was, isn't it great that we have safe havens where you could drop your baby off at the fire department? Why do we need abortion? This from a Catholic woman who has like seven children and taught at the University of Notre Dame. So we sort of know it's going to be a really tough nut to crack for Chief Justice Roberts to get Amy Cody Barrett to support and abortion, right? So he's got to put all, he's got to train all of his fire on Gorsuch to save any right at all.

And it looks like, look, as you said, Roberts is pairing the right down so small. It's almost like you could, you know, they want to like drown it in the bathtub. It's such a small right. That's where we are. Absolutely, Popoq. Thank you for doing this emergency update. And look, at the end of the day, our listeners might not like what they are hearing, but it's the truth.

And elections have consequences. And as we always tell, our listeners of Legal Aieffen on the Midas Touch podcast, you can't just sit there and take it. You have to do something about it. We have to organize. We have to get out on the streets. We have to make our voices heard through the election process.

And I'll tell you what hangs in the balance and the next election, as we go into other elections are very democracy hangs in the balance. And for those sitting on the sidelines and saying, I don't see the difference between Trump and Hillary Clinton, let me tell you, this right here is one of those major landmark differences

that is going to impact the lives of so many people for the worst removing a fundamental right. We will keep you updated. Of course, we will talk about this more on this weekend's legal AF for those just listening and tuning in to this episode who haven't heard legal AF. We do a live legal AF podcast broadcast on YouTube on Saturdays and then we play the full audio version the next day on Sundays as we like to say, if it is Saturday, it is legal AF, if it is Sunday,

it is also legal AF, just not live. And we hope you've at least gained information if you don't like what we're saying, but at least learned what took place today and we'll have further follow-up on this weekend's legal app. Thank you, Michael Popack, for joining me this evening. Thank you, Penn.