 Okay, we're back for live policy for the people today. You have the benefit of co-hosts today. Regular host on the show is Minora Mordecai, and I'm stepping in as her co-host. I'm Jay Fidel. It's the one o'clock block, and we're going to talk about Roe v. Wade. And the title of our show is Roe v. Wade hasn't been overturned here on policy for the people. We're talking about national policy. We're talking about important national policy. Welcome to your show, Minora. Thank you, Jay. It's good to be back on my show. And thanks for joining me as a co-host. This is going to be an exciting discussion. Yes, it is. So why do you say Roe v. Wade hasn't been overturned? A lot of people feel that the Supreme Court has really thrown some cold water on it. In effect, it has overturned it. What do you think? I mean, effectively in the state of Texas, abortion has become virtually illegal, right? Something like 85% of the abortions are not illegal in the state of Texas. And I think a lot of times, we as lawyers, we forget that for most people, they don't have necessarily the foundational understanding of federal versus state legislative process. So even, for example, if the court takes up this case and overturns Roe v. Wade, that doesn't mean that the entire country will all of a sudden stop having abortions. So that's the first point that I want to make is that this is going to be state by state process. Whatever happens with Roe v. Wade, each state will determine for themselves what they decide to do with abortion. That doesn't make it okay, but it's not going to place a ban on abortions nationally. Couldn't they do that? Couldn't they ban abortions and say there is a right to life all over the country? It's a constitutional right by the fetus. And therefore, no state can allow abortions. Can't they say that? That's not the argument that they're making. The argument they're making is that the abortions are being enforced by private citizens. Right. The Supreme Court is ultimately going to rule in the substance of this in the Mississippi case, which is another case in the South, so to speak. And whether it's a direct decision or a victim, we've got a majority there, an easy majority that could easily say, no, there is no right to life. I mean, rather, there is no right to choice. There's only a right to life and every fetus has a right to life. And we feel that every abortion is subject to that constitutional provision. I don't think the argument in this case, even in the Mississippi case, is not based on the right to life. It's based on right to privacy. So what people are defending is the right to privacy equals the right to have an abortion. And truthfully, outside of search and seizures, there is no right of privacy that's been articulated in the Constitution itself, but the court over the period of its jurisprudence has defined what that means to have a right of privacy as a citizen. Part of that is having your right to abortion. Part of it is having a right to same-sex marriage and all of these things were deemed as a right to privacy. So for the court to take up that case, the Mississippi case, what they can do is they say that abortion does not equal privacy, in which case it takes away the constitutional protection of abortion. But then each state would still have its own laws. So someone would have to then take Hawaii to sue the state of Hawaii for its law that allows abortion to happen and then take it up to the Supreme Court. So then, I mean, it may continue on and on for a long period of time, but each state would have to be sued for its existing laws. But that's future. We're talking about hypothetically. Well, one of the things that has come out of the Texas statute, which we can talk about in a minute, is that other states may also adopt statutes. Maybe they won't have the same vigilante mechanism, which is troublesome. But some other anti-abortion statute, and if the Supreme Court at some point says, those statutes are okay, that's okay, then every state that wants to do that can do that, and that'll be final in that state. It'll be final. It'll be the end of the ballgame. And even now, I believe you can tell me more that a number of states are either doing that, Republican states are either doing that or they're planning to do that in the hopes that they can get the Supreme Court to allow them to do that. I mean, what are your thoughts about the future of this deal? The Supreme Court is anti-abortion right now, majority. If they get a chance, they're going to knock it off, whether it's privacy or anything else, they're going to knock it off. How do you feel about that? I don't know 100% that that's going to be the case, honestly. They did leave room for surprise. So they may take up a case and rule it on very narrow grounds, which won't necessarily allow every state to go in and pass the same kind of law, which we've seen them done in the past where they go in and they don't necessarily want to change the law broadly, where they deem something as constitutional, not constitutional on very narrow grounds that only applies to this particular case. That may be what will happen with either when Texas statute goes up to the Supreme Court or when the Mississippi case gets hurt. The other part of that is each state may pass its own set of laws that bans abortion. So it's going to become the battle will probably shift from the judicial grounds to legislative grounds. We have two separate ways that the law is made. And so far, abortion has been politicized enough where the judges and the courtrooms have become the battleground for abortion. If Roe vs. Wade gets overturned, we probably would see the battle shifting to legislative processes where people will push for state legislation to protect abortion. And states have a lot of rights to legislate how the well-being of their citizens, like something as health education, has been traditionally in the hands of the state legislature. So it's going to be a state-by-state battle, I believe. Yeah, a Republican vs. Democrat state, right? And what about Joe Biden's idea where the people have suggested it to him anyway, of codifying Roe v. Wade in the Congress? I mean, that is a legal constitutional possibility to do that, essentially override anything the Supreme Court might do if it's codified in the Congress. But what we know today does not give us optimism about that. What do you think? Do you think it's possible? I think so. I think that's probably going to be, I don't know if it's going to be an effective strategy, but it is a doable strategy, especially if there's organizing both as a grassroots level organizing and politically, if there's buy-in. And right now, we have the momentum where a lot of people are outraged about what's going on in Texas. So there may be a buy-in to have a federal law passed. Of course, the Senate composition would have to change for that to happen. But yes, if it's codified as a federal law, then nationally, we would have protection for abortion or for women's right to choose on a national level. Whether that's going to get sued and go get it jumped back to the Supreme Court, I don't know. But that's the way our processes work, where there's checks and balances, where whatever law is passed, the court has a right to review it and back and forth. Now going back to your original question, why Roe versus Wade hasn't been overturned in, and I want to explain a little bit what happened with the deadline on September 1st. The court decided not to stop the law from going into effect. So as far as Texas is concerned, that law went into effect and the abortion became illegal after, I believe, six weeks. Now, someone can still file a lawsuit against that law as being unconstitutional, and then it will go back to the Supreme Court in which case they can decide on the merits and whether this law is constitutional or not. And that's what it means that Roe versus Wade hasn't been overturned yet. I'm sure somebody is either filing or thinking about filing that suit. I'm sure, yeah. It's a natural. But going back to the Supreme Court, and then we should visit the exact statute, seems to me that nothing is so constant as change itself. And it's possible, if I'm a Republican strategist, I would say it's possible that the Roe versus Wade doctrine will be codified in Congress is possible. And if there's a change, as you said, in Congress, that makes it maybe more likely. It's possible that Joe Biden will find a way or his successor will find a way to add judges to Supreme Court, change the composition. It's possible that there'll be other judges because of death or retirement on the Supreme Court, even in the short term, who will be more liberal and change the makeup and change the vote. And that would be interesting. Remember, the next appointments that are made, at least while he's president are made by Biden. Remember also that Mitch McConnell is going to oppose any appointment by Biden. I mean, that's a whole other show. But what I'm saying is there's changes, all kinds of changes that are possible. And if I'm a Republican strategist, I say to myself, if we're going to kill Roe versus Wade, we got to do it now. We don't want to be subject to the possibility of environmental changes all around the government, all around the court. So let's find a case soon. Let's take the case. Let's give it a cert. Let's get our hands on it and let's kill Roe versus Wade before we can't. Don't you agree that there's a moment in time here where they have to focus if that's what they want to do? Yes, probably right now, people are emboldened by what's going on in Texas and the fact that the Supreme Court, or at least the majority of the Supreme Court, allowed for the law to go into effect. They didn't say that the law was constitutional. And that's an important distinction. They just said the law may go into effect because the way it is written, it is distinct enough where we're not going to ban it outright. We're going to decide it on its constitutionally, on its merits once it is heard. I don't agree with that decision because in effect, it ended up hold the spirit of the law. And I know you're an attorney, you know the spirit of the law is something that we learned about in law school a lot where we have to kind of step back and think the purpose of the law, the intent of it, what was it meant to do and protect. So Supreme Court's decision didn't uphold the spirit of the verse versus Wade. I think they knew what they were doing. Yeah. They wanted it to take effect and they wanted to send a signal to other states, try it, try it, you'll see if you like it. Let's talk about the law itself. Where in the world did this come from? You know, I mean, this is very similar in my mind to the voting rights, voting suppression legislation that came out of the very same state, one of the biggest states in the country, which apparently is run by Republicans right now. But how did this happen? Because there's so many public policy reasons that fly in favor of abortion and against this law. And we'll talk about the terms and we'll talk about the mechanisms in a minute. But you know what drives so many people to want a law like this? I sent you a copy of Linda Greenhouse's article pointing out that Linda Greenhouse is my sister-in-law and she writes about the Supreme Court for the New York Times, has been doing that for 30 years, maybe 40. And she pointed out a very salient point that we have come to a time in the nation's history where religion seems to govern the law in many instances and probably in this instance. And so how much do you think is religion behind this? How much do you think Trumpism is behind this? How much do you think old-fashioned conservatism is behind this? What drives people to want to knock off abortion in a state so big? You got to figure it out because it's a major event nationally. I think it actually became, it goes back well before Trump was even on our horizon. And we've seen it happen with other issues where a party or a platform, a party is seeking a platform to get ahead in the polls and they're going to politicize an issue that shouldn't really be political to begin with. It should be an entirely medical decision or something that a community decides from how they choose to set up the health clinics or something like that. They became political the way education became political during the segregation era, during the Brown versus Board of Education. We saw how politicians, specifically conservative politicians were using it a scare tactic as an infringement on an American way of life. Is this racist then? Is this law out of Texas really another expression of racism? Partially it could be racism, but partially I think it's more of the scare tactic, the sphere of having people's religion and religious rights being taken away. It's seen as an infringement on the religious right, on the Christian right specifically because we see the push from the Christian conservatives. And that to me is what's driving abortion on a political level. That's become kind of decades in the making of using that as a scare tactic, protect our religion, protect American Christianity, protect our religious freedoms by voting for this person or that person by pushing ahead of one party over another. If you vote for us, we're going to ensure that we're going to protect your religious rights. We saw that with school. We're going to make sure that white schools will remain white if you vote for the Republican Party. So there's a corruption there, isn't there? It's a corruption of religion and it's a corruption of politics. There was a piece in the paper, I think it was in the Times this morning, it might have been in Washington Post, which talked about a practice that has been growing up in the South where if you want a written exemption from taking a vaccine, you go to a certain church which you never belonged to before and you join the church and you give them money. Upon receipt of the money, they give you a letter saying you're exempt from the requirement for a vaccine. So I mean, that's a fantastic corruption. It's transactional to use that term. So when we talk about religion these days, it's a pretty vague concept and anything goes, don't you think? Well, yes, and religion should be a personal choice. If you choose to practice something, you choose to have or not have an abortion, that should be a personal choice. There's no room for it to be imposed on anybody else. Those practices of beliefs shouldn't be imposed on anyone else. That's why we have freedom of religion. You're free to practice your own. That doesn't mean you should be telling others how to practice their religious beliefs and instead it's being used politically and you brought up a good example of vaccination right now. You would think something like COVID, a public health crisis, should not be political, but it's being used politically by certain parties, agencies, and they're pushing an agenda to maintain their platform using COVID or anti-vaccine as their argument to build support. Yeah, and religion is pushing anti-vax. I mean, how did they get involved in that? We're talking about saving life, but apparently that's not too important to some, maybe many of the religions involved. Well, let's go back to the... If you say it enough times over YouTube, you keep saying anti-vaccination is anti-religious and people will start believing it and they're going to start repeating it and it becomes reality for them. We have right now the proliferation of YouTube and other platforms where anyone can speak without experience or background in public health and if you have enough people who are speaking their lay opinions, then it becomes a reality for that group that follows them. So let's talk about vigilanteism, which is a, you know, I got to give credit to those guys in the Republican Party in the Texas legislature. They're doing a terrific job on suppressing voting, especially among minorities, black and brown people, but the one that really sticks in your craw for the year and maybe all of time is the vigilanteism in this abortion statute. And it does remind you of kids telling on their parents, of relatives telling on their relatives of what was going on in Nazi Germany with the Gestapo back in the 30s. It does remind you of that when you have people turning in other people and in this case it's even more gross because you get money. In Nazi Germany you wouldn't necessarily get money. Here they are offering you a $10,000 payment, make you happy. Where does that come from? It's very creative, isn't it? Actually, I don't think it's creative. I think there is enough people in the legislature, in Texas legislature, to push forward and create something that many other groups have thought of and tried to do. They just didn't have enough political buy-in to do it. I mean, there are a number of civil rights groups who would have loved to sue anyone for any hate crime, but they didn't have the ability to do that because the courts would say you don't have standing. And standing has been such an important part of civil procedure and civil litigation. And of course, I mean, think about civil rights there, how far we would have come if we could have had this kind of enforcement where every time you see a hate crime you can sue without showing injury. People just didn't have that political buy-in to do it. So the creativity is not there. It's the fact that what they're doing is just going against tradition, against the established jurisprudence. And standing has been an important part of American courts because we wanted to discourage frivolous lawsuits. So you have to show injury when you're bringing a civil lawsuit. And if you're bringing a frivolous civil lawsuit and it gets thrown out, a lot of times the person you're suing should be able to recover their legal fees from you because this would discourage frivolous lawsuits. What this statute in Texas does, it prohibits defendants from seeking legal fees. So without any kind of justification, if I was that vigilante in Texas, I can sue five of the richest people I know saying they ate it and abetted the abortion. And in order for them not to pay for lawyers and all of that, they would just settle with me for $500. Let's say. So you actually don't need any grounds to file a lawsuit. You can literally do settlements left and right. And that's what I feel like if people are smart enough to figure out, that's what they're going to be started doing because they can't be sued or they can't be held liable for frivolous lawsuits. They file a claim, go to the person and say, hey, I just sued you. If you give me $500, I'll dismiss a complaint and they will go away. Another times that would be extortion, wouldn't it? So now, you know, Merrick Garland is woke on this and he's going after Texas on this statute. How successful do you think he's going to be in setting it aside? I don't think it will be successful, honestly, because it's the state legislature. I think it would have, there was sufficient, I mean, the way the law is written, the fact that no one has made an objection to the standing issue, to the fact that the certain defenses were prohibited, the fact that you can't reclaim attorney fees, even if it was a frivolous lawsuit. There's just so many things about it that feels wrong and completely contrary to what we know of civil litigation. Just setting aside the abortion issue alone, I'm saying that this law is so poorly written that whoever wrote it is not going to budge on any logical constitutional grounds. But right now, we have, we all have Roe v. Wade. It's still the law of the land. This statute in Texas flies in the face of Roe v. Wade and Merrick Garland is saying or should be saying that the statute is unconstitutional because the Supreme Court has waited on this issue in 1973 and they can't just toss Roe v. Garland away in the state of Texas, make that Roe v. Wade away in the state of Texas. Isn't he right if he makes that argument? I think so, but I'm not on the Supreme Court. So it really, I mean, you're gonna, Maybe you should be. The Supreme Court would be far better off. I'll take that as a great compliment. I mean, it should be, but you're going to have an army of constitutional law scholars that will claim that this Texas statue is unconstitutional, but that won't change who's sitting on the court and how they're going to make that decision. If anything is going to have a sufficient enough claim at least at the Texas level is if the mayor of Mayor Garland claims that the standing, the lack of standing or the lack of injury for the plaintiff in that law is unconstitutional, according to the Texas Constitution. So if the Texas Constitution states that in order to bring a civil lawsuit, you have to show injury, then this statute now becomes unconstitutional, not on an abortion issue, but on a civil procedure issue and can be thrown out that way. Wouldn't that be a matter for the Texas Supreme Court, though, if there was an argument that it was in violation of the Texas Constitution? Yes, it would be. It would go up to the Texas Supreme Court. Well, let's talk about, let's talk about this case in Massachusetts. It's the, I gotta find it again. I had it on my, yeah, it's a Grendel, Grendel's den case in Cambridge, early 80s, I think. Larry Tribe, Lawrence Tribe represented the Grendel's bar and it didn't have a liquor license. They applied for a liquor license and there was a statute or an ordinance in Boston indicating that if a church stepped up and said we don't want a liquor license within a certain distance of the church, that was a summary decision and the bar could not get a liquor license. It wasn't like a question of zoning. It was a question of the church says no, no liquor license based on the geography. That was pretty heavy and Lawrence Tribe took it up on behalf of Grendel. They went to the Supreme Court of the United States. This little wee bar is a really tiny bar. See, that's a great country, right? And he won and for the proposition that the state cannot delegate discretionary governmental decisions to anyone, including a church. And that's good law today. How does that affect the Texas law? I would hope that it would be applied when this law is heard on its merits, that the state delegated its responsibility to ordinary citizens and has deputized them to be vigilantes, which if that law is still good, if that case is still good, then it should be a precedent to overturn the Texas statute. Well, I guess we're looking at a national momentum, a national trend, a national movement against abortion. But looking at the larger picture of it here, we only have a few minutes left. I want to tell you a short story and then I'd like you to comment on how that may fit. When I was in college in our social group, there was a couple that were dating and she got pregnant and abortion was not possible. And they were worried that their families, both sides of the both families would throw them out of the house and that they wouldn't be able to continue in school and their lives would be wrecked. And in the circumstances, that was a legitimate concern back when. So they went down to the dockyards in Brooklyn in a tenement house and found a woman who would do it with a coat hanger. And the young lady might have died. I mean, everybody expected she wind up in the hospital. But luckily she didn't. And I guess it left an impression on me and everyone I knew how wrong it was to either present these people with the Sophie's choice of either A, being, you know, exercised and sent away and lose their education, educational benefits, possibilities, or be subjecting themselves to death, the risk of a horrible disease and also the possibility that she might never be able to have a child again. So this was always troubling to everyone I knew in my world. And when Roe v. Wade came around, which was only maybe five or ten years after that, we were all gratified to see that there was enlightenment in the country. But, you know, there were others who didn't feel that way. What is the best national policy here? And is this, is this policy, which actually punishes minorities going to lead to, that is the anti-abortion policy, going to lead to a better nation, a better workforce, a better social justice, or the other way around? Honestly, I think abortion is ultimately a health issue. It shouldn't be left up to vigilantes or anyone else. I think it should be up to the doctors to decide when it's okay to perform a procedure. It is ultimately a medical procedure, and it's a decision, it's a very private personal decision for a woman to go through a medical procedure, and ultimately should be staying out of, there's no room for politics when it comes to medical procedures like this. And I do think the country and overall, specifically women, would be better off and to tell, to add to the story, I know we're almost out of time, but my professor in law school once told me the reason why she went to law school was because Roe versus Wade became law, where she knew that she had the security to go to law school to be a lawyer and not be unexpectedly pregnant and drop everything. And that kind of changed my entire perspective of how it affected people on a very personal level. She was in front of me, she was a prominent attorney and the scholar and the professor, and it changed her trajectory dramatically. So that's what happens when cases are decided at that high level of the Supreme Court. So we'll see what happens next. Yeah. And one last question, Minara, is this? This issue is not the only issue that's on the table for this country right now. There are other issues that are profoundly important in terms of the management of our society. Let's put it that way. And it all seems to be going the wrong way. People argue the Supreme Court is the wrong way. The Congress is dysfunctional. As a result, the executive branch is hamstrung in so many ways. And the states are turning Republican and turning mean. So the question I put to you is, in our, what do you want to call it, our wounded democracy, our injured democracy, nobody will argue to the contrary on that. What can we do? What can the individual do? What can women who are concerned about this do? You're not on the Supreme Court yet, Minara, and you're not in Congress yet. And you have not been elected president yet. You're just an ordinary person on a talk show here in Hawaii Day. What can you do? What can I do? Well, when we can speak about it, we can have honest conversations and seek expertise from people who should have more to say about it than just someone with very literal understanding of law, of constitution, and of medical procedures. So just seeking more information and ensuring that we stay open to new ideas. We can converse openly and politely, hopefully. And I feel like that's probably our only remedy. I mean, change doesn't happen overnight, but we're going to have, we're going to keep having these conversations. And if it mobilizes people to get up and change some of the laws, either through voting or becoming or running for office, that's more power to them. I hope it will. Yeah, running for office. Okay. I'll be encouraging you to do that, Minara. Thank you. We should run for office. We should make damn sure to vote. And we should write and speak and participate in the public conversation about this. Those are our options. They're probably more if you think about it, but those are the things we can do. And we need to do them on think tech and otherwise. Thank you, Minara. It's been great to talk with you. Minara Mordecai here on policy for the people. So important we have this conversation. Thank you. Thank you, Jay. It's great to talk to you. Great to be co-votes with you. Me too. Aloha.