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US Supreme Court Draft On Landmark Abortion Case Leaked! Outlaw Lawyer will discuss.

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
May 6, 2022 5:00 pm

US Supreme Court Draft On Landmark Abortion Case Leaked! Outlaw Lawyer will discuss.

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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May 6, 2022 5:00 pm

4 attorneys on the set this week of The Outlaw Lawyer. Hosts Josh Whitaker & Joe Hamer, managing partners of Whitaker and Hamer, welcome fellow attorneys Cassandra Nicholas, and Taylor Scruggs-Smith. The US Supreme Court is debating Dobbs v Jackson Women's Health Organization and a draft has been leaked! The outlaw Lawyer discusses the ramifications.

If you have your own legal situation and need answers call

Whitaker and Hamer 800-659-1186. Leave your contact information and what the call is about and an attorney with Whitaker and Hamer will be in touch.

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This week on The Outlaw Lawyer, Josh and Joe are joined by Whitaker and Hamer attorneys, Cassandra Nicholas and Taylor Scruggs-Smith for a very special episode. A draft U.S. Supreme Court opinion in landmark abortion case Dobbs v. Jackson Women's Health Organization has been leaked and everybody, and I mean everybody's talking about it, including The Outlaw Lawyer.

That's coming up next. The Outlaw Lawyer, Morgan Patrick with you, consumer advocate. We also have Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer Law Firm. Again, practicing attorneys here in North Carolina and managing partners again at the firm.

They have offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay Arena and Gastonia. And we have special guests on set with us today. Josh, I'll let you take it away. So today we got a big topic. Big topic today we're talking about abortion. That's not what we were originally going to talk about this week, but yesterday or I guess two days ago.

We're in the studio Wednesday morning. So Monday there was a big leak. A big news story.

What happened? So the case of Texas law and Dodds versus Jackson Women's Health was already argued in front of the Supreme Court and there will be a decision issued by the Supreme Court within the next couple of months. However, someone at the Supreme Court leaked the full draft opinion. Yeah, so that was as far as I know, and according to media reports, that's something that's never happened before. The Supreme Court is a very small institution when compared to Congress and the executive branch.

Small amount of justices, clerks, staff, so a very small branch of government. They usually operate under very would say congenial, very friendly operation and a news outlet was able to obtain a copy of a working draft of a very controversial Supreme Court case that we've already talked about on the outlaw lawyer. So this is a case that we have mentioned a time or two.

We've talked about Roe V. Wade on the outlaw lawyer and we're going to revisit those a little bit today before we get into the nuts and bolts of our discussion. But we had another script for the show trashed it. Lot of work on that script, right? Meaningless now because this hours hours research I did for that show is legendary. So if you're if you're if you're you listen to that law lawyer a lot, hopefully are the time that we spend preparing for the show comes through here again.

We pivoted. We figured this is all that anybody is going to be talking about and we do try to make a show that's timely and useful. So we wanted to delve all the way into this issue. I know the Chief Justice has ordered an investigation to figure out how the leak happened. And before we get to talk about substantially what we've learned because of the leak, I feel like we should just talk about how odd it is that this has happened.

I know there's a lot of speculation on how it happened and who did it and and what their purposes are. And I guess this is a good time to remind you that here on on our show we all have our personal beliefs. You know we we have some conservative folks.

We have some more liberal folks, so we're not. A political, but when we come here we really just try to talk about the law. You know what we're looking at. What's before you know a court that the justices here at the Supreme Court. So we really just try to look at what's happening and try to analyze it as attorneys.

I think this is one of those topics where it may be a little bit hard. To completely shield our hand and what we personally believe. But you know we're not here to judge anybody.

We're not here to say abortions right abortions wrong. We're really here just to look at legally. What are we looking at? And as attorneys, you know, try to inform non attorneys like kind of how we should be reading this and what's what we find interesting. What's not interesting. Cause I gotta feeling the national media outlets.

A lot of them probably won't take the time to maybe read the whole opinion opinion. So we have that's a safe bet. And kind of look at it in in historic framework. But I think the first thing we should talk about is just the leak. I've never seen anything like this happen before.

I don't know if it will ever happen again, but this is. We've talked about how the institution of the Supreme Court is kind of changing. I think it's you know. I don't know.

I don't know Taylor. If you get that same feeling. I mean, you do get the feeling that it's changing a little bit, but it's kind of still an unprecedented thing that this leak has happened. If this was coming from executive branch, you know we wouldn't be too shocked, but this is coming from a leak from Congress.

We wouldn't be too shocked. But the fact that the Supreme Court had a leak and not just a little leak like it's not just like a paragraph of the opinion. It is the entire first draft of the opinion with the judges names on it. All the details that we have. All the details, their case notes, their references. It's everything so much for viewer references. 98 pages. Yeah, we have all the pages right here.

It's 98 of these. So far I'm surprised it hasn't happened before honestly. So political is the news outlet that leaked this full draft. They also had a separate article about previous leaks in the Supreme Court.

There hasn't been anything like this where it's a full draft. However, there have been previous. Leaks where reporters have clearly known what was happening. I mean, you've got when you got like we're a we have no political belief. You're Switzerland, you're Switzerland, you're saying it's gonna be hard to hide our I guarantee you, no one's gonna have any idea what I think.

But when you're dealing with, you've got justices that do have their own political leanings, their clerks have political leanings. People are human, definitely going to be leaks like 100%. And I think even if there are leaks, though, it's never been to this degree, like, okay, yeah, somebody might have known. Okay, hey, just so you know, this, this is about to happen.

Like it might have been those side things. But the whole thing is crazy. Well, and I think who leaked really, if we ever find out, will determine how we view this. Some of the previous leaks have been people in like the typesetting office, which is a very different, like position and motive for a leak than if this were a clerk or a clerk with justice approval or justice themselves. After this happened, I went to the one place you probably shouldn't go after something like this happens.

Reddit, Facebook, Twitter, Twitter, just to see, you know, how different talking heads or whoever. And you know, and if you were on the liberal side, this was a conservative, who did this. And these were all the reasons. And if you were a super conservative talking head, it was a Democrat, a liberal person who did this.

And this is why they did it. And everybody's extremely sure, you know, there's three. Those opinions are unique and how many are like the one person puts it out and then everybody just I've seen everything. People have been on both sides saying, you know, the other side did it just to try to force the courts hand, like both sides are claiming that and then a lot of people are already using it for midterm elections. Oh, sure. Like both ways, both ways. Everybody's already worked it into their campaign. People are like, okay, you have something that can be used both ways. Yeah, and of itself is pretty, pretty unique.

So you know, I did I did. I was I was sort of familiar with how the Supreme Court operates. But, you know, I looked at this draft and we know a couple things that we know it's not final, right?

We know it's a draft. There's no concurring opinions. There's no dissent. There will be strong, strong dissents.

And that all comes later, right? They're circulating. And we've been trying to guess when we would get a verdict. And, and I think, you know, you we kind of know that the Supreme Court has a conservative slant right now for the first time in my life, I think, unless maybe when I was a baby, I don't know, in the early 70s, you know, I think what's interesting, too, is that this draft doesn't even say who the majority is. So it's just Alito's decision, but it's not saying who's joining him in that decision. And that's, of course, a lot of things, news media speculating about right now trying to figure out which justices are even joining him in this. And this was a first draft.

It was circulated February 10. So it's already May, we don't know what's happened since this first draft. Yeah.

So there's a there's a lot we we don't know. And people, you know, depending on what site, you know, if you if you're if you're against abortion, then you think this is awesome, right? You think this is finally, you know, my side is being told.

And if you're if you're for abortion, this is terrible. You know, and again, we don't know what this will look like when it's actually finalized. You know, justice can can still change votes, right? They're not they may have taken an informal vote after oral arguments back in when we're in oral arguments two months ago, 60 to 90 days ago, we've been talking about this forever.

So we're arguments were a while ago, there's usually an informal process with a vote, but they're not done. And they're still not done. I've heard, you know, that's one of the theories behind the leak is maybe to get justices thinking about their vote pressure, which is bad, wider implications, just seeing people protesting outside the Supreme Court, if that's going to sway a Supreme Court justice protest. There's already.

They've already barricaded the Supreme Court. We were we were at the hurricanes playoff game Monday night. So we went to work went to the hurricanes game came home went directly to bed because that's late for me. As I had no idea what had happened Monday. And then Tuesday, I rolled in and started kind of figuring out you know what had happened. But big big new cycle item will be for a while.

Kind of put Ukraine on the backburner and in the major new cycle. But it's going to be an interesting. I say interesting every week like 99 times. Well, it is pretty interesting. Interesting that you've called you. You're very aware of the things that every time I say it. Yes, I fixing your head.

I don't know. I'll get my source out. This is a very fascinating area of law that we're going to be talking about today. But again, I do want to tell everybody we're here to talk about just the law. We're not necessarily advocating a certain kind of law. We're not necessarily advocating a certain position. We may actually play devil's advocate. So like Joe said, he may he may ask a bunch of questions that makes you think he's one way or the other when really he's the he's the only other side. So we're we're looking at this strictly from a legal position and.

That's what we're gonna do after the break. All right, well, we got a lot to get to the outlaw lawyers, Josh Whitaker and Joe Hamer. You can find him at Whitaker and Hamer law firm. They're the managing partners. They're practicing attorneys here in North Carolina in studio with us this week and on the radio.

Cassandra Nicholas and Taylor Scruggs Smith. I want to remind everybody, too, if you're listening on the radio one oh six one four o'clock on Saturdays right here in Raleigh in Durham. The truth that will go Saturday at one o'clock. And then in Smithfield, WTSB.

That's Saturday at two. We're back with more of the outlaw lawyer right after this. Welcome back to the outlaw lawyer, Morgan Patrick, consumer advocate, joined on set by Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer law firm. Again, practicing attorneys here in the great state of North Carolina. We talk legalese each and every week, and we have special guests, also attorneys at Whitaker and Hamer.

Cassandra Nicholas is here and Taylor Scruggs Smith. And we've had a lot go on in the past week, and we're talking about it. And we're going to start with Roe v. Wade.

Before we get there. I was thinking about something I wanted to share with everybody your show. So, you know, so I figured all this out Tuesday we talked about how Monday we were at the Hurricanes game. Great game.

It's great game was very happy, very fun time. It was the hurricanes in particular. So they went home, went to bed, woke up Tuesday morning, figured out, you know, this had happened is very interesting, fascinating to attorneys. So we spent the day kind of talking about this.

I went home and kind of talked to my wife and my kids were asking questions because they're old enough to kind of watch the news. So we're talking about it. That shut everything down, because I don't know if you're aware but last night was the premiere of holy moly, which is a very great show.

The holy moly people haven't paid me to say that. Share that with the general Facebook post. The kids all hunkered down and we watched holy moly featuring the Muppets and it was it was a nice break. It was a nice break I went directly to bed after it was over, because that's late for me. What is 730pm it ended.

Facebook post was almost 930. I was like Josh is awake. It sold me. So Josh a review very quickly holy moly go greatest show ever. It's, it's, it is the finest show on TV, I think today or ever. Not ever, not ever. I think today Simpsons. But I just feel like the, I need to bring that to the general public. This is a very serious show this week that not going to be a lot of joking but but that's a fun family show.

There's a lot of fun family shows anymore. Yeah, yeah. I mean, well can I mention one thing about the hockey game. There was a Boston Bruin fan invited into our area, what he was always invited I think he just wandered right to you. Look, it was fantastic. He was, he was a very polite fan and that's shocking.

I actually thought it added being able to see the sadness on his face was it was a great addition to the environment overall, the hope the despair, like it just all the hope drains out all of them. Just remember to it's a it's a series it's not a one game series, but that one game we went to awesome can always watch the rest of the series. All right, back to serious stuff I really I felt that we needed that I feel like not only can holy moly entertain my family I felt like it could bring us some levity in the middle of a very serious discussion, do a holy moly episode. All right. So, before we talk about the leak. And here, here's what leaked. So here is the, I guess this doesn't work on the radio but if you're watching us on YouTube I got a big old how many pages was this 98 documents, this is what leaked. And so this is what we've all been poring over.

But before we get to what might be. We need to talk about where we were at right now where United States abortion law arrests right now and to do that, you have to talk about Roe v Wade, and so we've talked about on the show before, but Cassandra, what happened in Roe v Wade was a 1973 case in front of the Supreme Court, the right to abortion had never been recognized before that point in time. And that decision reached the protection of the right to abortion through privacy rights. So there's a whole line of cases that I know, Taylor's studied more recently than me, that extends from those privacy rights as well. I think studies a strong word.

They're all just trying to make me look good. So I think they kind of goes back I think towards, I believe it's Griswold v Connecticut, and there's kind of just a line of cases from there where the Supreme Court kind of said OK, because of these rights and that are codified in the amendments to the Constitution, there seems to be a sphere of privacy that the drafters intended. And so by combining all these rights, we're going to say that there's a right to privacy. And they did that a little bit through the due process clause as well in the 14th Amendment. And so there's been a line of cases since then that dealt with marriage, interracial marriage, the rights to contraceptives, the right to do what you want in your own bedroom. Several cases like that, that have kind of led up to Roe v Wade, and that was kind of the privacy right that was involved in that. So you usually have, and we've talked about it on the show before, but you usually have two kind of judges, two kind of justices, you have your, you have your Supreme Court justice who's going to strictly interpret the Constitution. You know, it's like, you know, if it's not a specifically a numered right, they don't want to read stuff into the Constitution. So there's the type of justice that's like, hey, we've got a constitution.

The founding fathers knew what they were doing. And this is what it is. And we can interpret it, but we're not going to, it's not our job to add anything to it, subtract anything from it.

It is what it is. And we'll interpret that way. Then you've got a line of thinking other justices who will say, you know, the Constitution is a living, breathing document, and we're using it to govern 200 years into the future. They could have never imagined we'd have these problems and are these issues and we need to address it as best we can based on the foundation that we have. And so those two lines of thinking are often what the justices when they when they're not agreeing, that's what they're not agreeing on. And like Taylor said, there's a whole line of cases where the court has really struggled because obviously the Constitution doesn't talk about married couples right to contraceptives.

Right. Interracial marriage and things that the founding fathers were not dealing with immediately when they wrote the Constitution. And so the court has struggled to say, hey, we need to address these these things. It's not, you know, an amendment. It's not strictly in the Constitution. And so they've created these these rights that I would call them implied rights. You know, the Constitution protects this, this and this.

So it makes sense that it would also protect this. And it is that constitutional interpretation that is at issue here. The Roe v. Wade decision explicitly incorporated modern context as one of the factors that they're that they were looking at. So they specifically one of their factors in the Roe v. Wade decision was the demands of the profound problems of the present day, which justices that are strictly interpreting the Constitution would never put that line in the decision. Right. And that's part of the sticking point of Roe v. Wade always been is that people have said, OK, this isn't an explicit right.

How did they even get to this? That that type of kind of balancing act between those two types of interpretation theories is what's kind of led us to Roe v. Wade in the current case before us. So what did what did Roe v. Wade what what was the rule of law after Roe v. Wade? What did Roe v. Wade Institute? So it did establish the trimester system of pregnancy, which had been referred to previously, but not in a Supreme Court decision, not by law. So then using that trimester system, it established kind of a viability of the fetus standard for when abortion needs to be protected as a right. And when the fetus now has rights. So that's that's where it was. That's like that created a sticking point for people that has lasted to this day.

Right. So, you know, in any of these in any of these decisions, we're always talking about competing interest. And so usually when you have something being litigated, Supreme Court level, district court level, small claims court, it's because you have two groups or two people with competing interest. And so a judge, a justice, they're going to have to decide basically who's more correct. A lot of times you've got two sides that make really good arguments. But there has to be a general rule of law or there has to be a point where, you know, and I think that's what they're doing here. You know, you've you've got people who are like, hey, look, the you know, maybe some people believe that conception, you know, an unborn fetus has has rights.

That's a life. And there may be religious reasons people believe that may be completely non religious reasons people believe that. But there's there's people are like, we have to the state has an interest, just like, you know, those folks would compare to like a murder. Right. You have an interest in protecting a life. And so if you're seeing this unborn fetus on day one as as a life worth protecting, you're you're going to be an anti abortion activist because you believe you have to protect the rights of that unborn fetus.

Right. And on the other side of the argument, you've got a fine argument that you know, a woman needs to be in control of reproduction to live and work and be an active American. And those interests are what's butting heads and people are very solidly on one side. There's not a lot of people like in the middle, like, yeah, I don't care what maybe there are they just those aren't the crazy people that are going to go on Twitter go somewhere and just like really push that opinion because it's a crazy or passionate, crazily passionate. I think there are some people in the middle who are like, okay, maybe there needs to be some government control, but not to this extent. And I think that's the only kind of middle you have. That's it. That's like you said, those are the people who, on any issue, the ones that fall more towards the middle of the ones that get drowned out by the echo chambers on either side.

I know it's amazing. I was not alive in 73. I'm not quite that old. You were a viable fetus. So I can't, I can't report on, you know, what was going on in the nation at that time. But this was a, this was a hotly contested issue. And it had been for some time. It made its way to the Supreme Court.

So the Supreme Court was a, you know, a more liberal leaning Supreme Court at the time. But they were like, hey, this is an issue. You know, the country's looking to us to make this decision. And for better or worse, depending on what side you're on, they, they, they made a decision where they tried to go.

I think, try to try to make both sides strike a balance. Yeah. So from 1973 until 92 states were required to not make abortion illegal, but they could make it very difficult. That's how we got to Casey.

Yes, exactly. So the case of Casey in front of the Supreme Court in 1992 made it so states couldn't place undue burdens on the right to abortion. So states previously were, were implementing things like requiring women to hear the heartbeat before they could go through with abortions or having waiting periods. Or if you were married, you had to tell your husband and he had to come in and sign consent. Or sometimes even if you weren't married, depending on the state, the father had to come in and sign and agree.

Definitely that waiting period. Some states I think had it up to like 48 hours of a wait period and you had to like classes you had to do beforehand. They, they made it really difficult for that right to be used in any way. So the court had to readdress it. So in 92, Casey reaffirmed the right to abortion, reaffirmed Roe v. Wade, and then also added that standard restricting states from placing undue burdens on that right.

And so that's the way it's been, right? So there's been cases every year that come up where the Supreme Court has to look at something a state has done to, to maybe put up roadblocks or to make it even more difficult. And the Supreme Court has said to say, OK, well, that's you can do that, but OK, you can't do this. And so there's this whole lineage of case law after after Roe and after Casey that have kind of, you know, minutia, right?

You know, this will work, this won't work. And there's a lot of states out there that spend a lot of time trying to craft legislation, like you said, to make it as hard as possible. And if you're and if you're against abortion, then you you're good with that. You trumpet that like, you know, like that in the court will strike down what they can. But but at the same time, Roe v. Wade, by and large, has been settled since that point. This is the first time you see.

Yeah, so we're 50 drastic. And it actually came up a lot in the confirmation hearings. So some news outlets and senators are starting to come out saying like they don't know how to feel about the confirmation hearings that went on because this was brought up several times with a lot of these new justices confirmation hearings.

But none of them lied, playing, playing none of them. They successfully lawyered their. It depends of the lawyers.

It wasn't even it depends. They said this has been settled law for 50 years. They didn't say they weren't going to do something about. Right. So nobody lied.

Everybody did their job right. And we'll talk. They lawyered. And we'll talk about at least in that.

We'll talk about settled law and we'll talk about stare decisis and we'll talk about a lot of other Latin legal terms that are super fun and exciting to talk about next. All right, guys, the outlaw lawyers, Josh Whitaker and Joe Hamer, you can find them at Whitaker and Hamer law firm. They're the managing partners. They're again practicing attorneys here in North Carolina in studio with us.

Returning guest Cassandra Nicholas, also an attorney at Whitaker and Hamer, as well as Taylor Scruggs Smith, also an attorney at Whitaker and Hamer. If you've got a legal situation that you're dealing with and you've got questions, I've got a phone number for you. You can get in touch with Whitaker and Hamer. It's 800-659-1186. That's 800-659-1186.

And just leave, you know, contact information briefly what that call is about. An attorney with Whitaker and Hamer will be in touch. And you can always email your questions to the outlaw lawyer. It's questions at the outlaw lawyer dot com. We have a wonderful Web site. Again, the outlaw lawyer dot com.

We're back right after this. Welcome back into the outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer law firm and managing partners. They're practicing attorneys here in North Carolina. I'm Morgan Patrick, consumer advocate. Our guests on set today.

And again, if you're watching on our YouTube channel, we have Cassandra Nicholas and Taylor Scruggs Smith, also attorneys at Whitaker and Hamer. Want to remind you, too, if you have a legal situation you're facing and you've just got questions. Well, I've got a number for you. You can call it and you can get some answers.

Here it is. 800-659-1186. That's 800-659-1186.

Leave your contact information briefly what the call is about. And an attorney with Whitaker and Hamer will be in touch. And you can always email your questions to, you know, again, questions at the outlaw lawyer dot com. And I know we're going to get into the Texas law and Dodd's versus Jackson's women's health. Right.

So so we spent the last segment kind of detailing where where we're at. So as a nation, for the past 50 years, Roe v. Wade and its progeny. I say right. Progeny.

He did. His progeny is what's kind of governed the state of abortion in in the U.S. And you might hear over 50 years old. I'm not OK. There's no lawyer here over 50 years old. I don't think you have to single him out like that. I'm sorry.

We can cut that out if we need a big voice. Just lawyers. So as long as we've been as long as most of us have been alive, this has been the rule of law. That was the point. That's all I was. And so possibly it might not be going forward right now. It is. So I want to spend some time talking about the two the two matters before the court that have gotten us to this to this leak. Right.

So we're slowly getting to the leak. But we've we've talked about this before on the show. But there was a Texas law. I had a name.

What was it called? We always called it the Texas law. We didn't have like another name. Texas law. Maybe we did.

We talked about it a lot of time. So Texas, Texas, Texas state came up with a law to discourage abortion. And it was a it was kind of ingenious to a certain point. I'm personally not a fan of the type of law that they created because I can see it doing other things, but we'll talk about that. But they created a law where they wouldn't say abortions illegal because they can't do that. Roe v. Wade says abortion is, in fact, very legal. And so they had Texas didn't want to make a law that was going to immediately get struck down. So what they did is they basically said, you know, helping someone obtain an abortion is de facto illegal.

Right. So you had some civil penalties. So if someone you knew drew drove someone to get an abortion or the doctor that performed the abortion or the nurse at the clinic, if you had personal knowledge that this happened, you could, in theory, sue them for up to ten thousand dollars.

I think it was in damages. And so the Texas state legislature came up with, enacted the governor signed it. It's a law and that has really discouraged. It's had the impact of discouraging women from seeking abortions in the state of Texas.

Basically, deputized private citizens is how we describe it. Right. And they and they they achieved their goal.

Right. Their goal, I think, pretty blatantly was we don't want anybody having abortions in the state of Texas. And this law pretty much did it.

It's variations. There have been challenges to the Supreme Court over the past year, challenging the legality, the constitutionality of that law. And it's it hasn't survived as much as the Supreme Court has just kind of passed on those challenges, like send it back to state court.

Someone else should look at this. You don't have standing, which I've always thought was very dangerous because this model of law could just be used to limit any number of constitutional rights. You have gun ownership, you know, it's a way to circumvent constitutional rights. And so I think it should have immediately just not lasted like this should not be allowed, no matter how you feel about abortion. And that was kind of our opinion on that. So the Supreme Court's dealing with that. And then also the case that we're going to talk about, the case that is directly related to the leak, the Dodds v Jackson women's health case.

Who wants to tell us about that case? So the law in that one kind of pretty much said, except in a medical emergency, if it's over 15 weeks, no abortions allowed. Pretty straightforward.

Pretty straightforward. They said not. And interestingly enough, they said a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if it's if they believe it's past 15 weeks into the pregnancy. And the only exception is medical emergency, which typically refers to the life of the mother.

Right. So that's the one that got all the way up to the Supreme Court, because that was kind of a pretty blatant no abortion, not going with the typical trimester test that came up in Roe. So that's how we got to the Supreme Court. And that case is out of Mississippi. Let's say Jackson in Mississippi.

All right. So Mississippi knew this law under the current structure under Roe V way. This law is is illegal, right? They had 15 weeks is inside of the first trimester.

Is my math right? But it's inside of the viability test that was OK, so so they knew this would be challenged. That was what I was trying. They knew they made this law. It probably wasn't going to pass legal muster. It was going to be challenged. And I think when we get to the leaked opinion, the Supreme Court kind of hints at that, like. The Supreme Court's having to deflect these things, and we've talked about this before on the show is how several states have done this in varying degrees, basically put laws that were in violation of the Roe V Wade standard. And I guess just whether it be trying to force the hand of the whatever the reason was, it's something we've discussed in the past on the show as a recent kind of phenomenon. And we haven't discussed trigger laws yet.

Yes. What is a trigger law? The trigger laws are most of the time laws that are ready to become actual law, like they're drafted, ready to be signed and passed once. They've actually already been signed and passed. They're on the books in 13 states. So they're existing laws where they don't become effective until until Roe V Wade is overturned.

Right. We know abortion is legal, but the minute it's not legal. Total ban, more or less total ban. In 13 states have that on the books right now. A few other states aren't making it a total ban, but it's highly limited, like this Mississippi law. So like a good number of states, probably almost half the states have a law ready to go if Roe V Wade gets overturned. And so, like I said, we've been talking about this case for what seems like forever this year. We're just waiting to see. I don't remember what the official outlaw lawyer prediction was. I don't know what the official prediction was, but I'll tell you what I think I remember. I'd say whenever the formal actual not draft opinion comes out, that's what our prediction was. We have a conservative leaning court. I think it would have made sense to expect some sort of narrowing of Roe V Wade. I don't think we thought complete overturning. We probably said that was unlikely to be the case. This draft is really strong language.

For me, at least, this is a really unexpected opinion. I think most people thought we're 50 years in at this point, and we'll talk more about that. It doesn't mean the court can't change course, because they can. But I think most of us thought that, OK, well, abortion rights are about to be limited more than some people probably would like. Or clarified.

However, just more of a standard. And I kind of even envisioned a scenario where they give some things back to the states. They say, OK, abortion Roe V Wade is Roe V Wade, but this is what we're going to let states do. So I did feel like we were going to have some sort of tightening of restrictions. And who knows, maybe that's where we end up, because, again, the leak is not a final document.

And we can't we can't stress that enough. So that's kind of that's kind of where we were. We were all sitting here waiting for some sort of guidance from the Supreme Court on that Texas law and the Dodds case. And I guess we still are waiting for some kind of final word. But in the meantime, the 90 some pages was dropped in our lap. Ninety eight pages. Ninety eight pages to be exact.

That's dropped in our lap. So now we have at least an idea of what the court is thinking, an incomplete idea, a not final idea. But that is what has triggered the nonstop media coverage of this for the past day or two.

And what I'm sure will be several more days and weeks of coverage. But up next, we'll actually get to the leaked opinion, what it says and what the court is thinking. The outlaw lawyer, Josh Whittaker and Joe Hamer, Whittaker and Hamer law firm, the power behind the program. I'm Morgan Patrick, consumer advocate, our special guest in studio.

And if you're watching on YouTube, you can see us. It's Cassandra Nicholas and also Taylor Scruggs Smith, attorneys at Whittaker and Hamer. And again, what sparked this discussion, a draft of the U.S. Supreme Court opinion in the landmark abortion case of Dobbs v. Jackson's women's health organization leaked. Everyone's talking about it.

So we are getting into that discussion today. If you've got a legal situation you're facing and you've got your own set of questions and you need some answers, I've got a phone number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine one one eight six. And again, just leave your contact information briefly what the call's about. An attorney with Whittaker and Hamer will be in touch and you can always email your questions to the program. And that's questions at the outlaw lawyer dot com.

We're back right after this. Welcome back to the outlaw lawyers powered by Whittaker and Hamer law firm. Josh Whittaker, Joe Hamer, your host of the managing partners of the firm, and again, practicing attorneys here in North Carolina.

Our guests in studio today, Cassandra Nicholas and Taylor Scruggs Smith, also attorneys at Whittaker and Hamer. We say this all the time, but if you've got a legal situation and you've got questions, you need answers. I've got a phone number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. Leave your contact information briefly what the call's about. And an attorney with Whittaker and Hamer will be in touch. And you can always email your questions to the show. We'll answer them on future programs. Questions at the outlaw lawyer dot com.

So we're getting back into it. A draft of the U.S. Supreme Court opinion in the landmark abortion case. Dobbs v. Jackson, women's health organization. Well, it was leaked. And how long? How many pages? Ninety eight.

Ninety eight pages. And it has sparked a lot of discussion around the country. And we're talking about it today on the outlaw lawyer. So in this segment, I wanted to talk about kind of where does where does this leave us?

Right. So we're all kind of we're speculating before. But now that we have this leaked opinion in front of us, we kind of have an idea, at least of where the court might be, might be leaning.

And so now we have to figure out what what what do we do now? What are states doing? So a lot of the states in reaction to this are creating laws and even constitutional amendments in California's case to protect the right to abortion in their states to essentially become haven states for abortion, especially states that border other states with these trigger laws where it'll immediately become illegal. To have an abortion. So a lot of those trigger laws create criminal penalties for women that are seeking abortions.

Some of them for the doctors that perform. Yeah, so like manslaughter charges. So the other states that are reacting to this that are becoming haven states are creating protections for those women to be protected from prosecution if they come for an out of state abortion.

And we'll get back there. I think I think it'll make more sense that so this this opinion, if it's if we if this is what we get delivered as the as the true final opinion of the court, it says that Roe v Wade was bad law and was always bad law. It strongly says there is strongly says the scheme Roe produced looked like let it legislation and looked like something that would be expected from a legislative body, which is a scathing review of a Supreme Court opinion. And I think one thing is interesting, too, because reading this opinion, I know a lot of people thought because this is a law that mainly deals with women, that this would be dealt with under strict scrutiny, which is an equal protection standard. And they knocked that out relatively quickly and cited to another case where they were like the regular get regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny. So they're actually handling this case under a rational basis review and which is a very low standard for the court.

And then after that, they're kind of going into, OK, for Roe. The problem was they created a right that wasn't implied in the Constitution. And they were looking at the main test of whether that was a right that was deeply rooted in our history and tradition and therefore essential to the nation's scheme of liberty in order to say that right existed.

Seems like problematic reasoning, just slightly. So if you read Justice Alito's leaked opinion here, it was. It was definitely a scathing treatment of Roe v. Wade, and so the court. The reason we talked about in confirmation hearings. The reason justices or potential justices get asked about settled law. Starry decisis, right? Yes, alright, so the court has a cool Latin phrase there that just basically means settled law, settle law, and it shouldn't be disrupted or overturned unless it absolutely has to be because people rely on these decisions right for all kinds of things.

You know health care here, but businesses, the general public. We all rely on the Supreme Court decisions to be law and turning them over changes a bunch of stuff for folks and and here obviously taking away a constitutional right is it doesn't happen very often. It doesn't.

It's uncommon. It's very rare, but they Alito was very scathing and his treatment of the. There's no confusion about where Justice Alito stands on the issue that we don't know a lot about this leak from this leaked opinion, but we know Justice Alito wrote it.

Not a fan of clear pages of how he feels about it. And under starry decisis, he said they shouldn't have even confirmed row in Casey and actually was kind of disparaging the court that hit her Casey in that opinion for not going after row then and actually looking at the law. And so the Supreme Court's made made what we we view you know here in 2022 as mistakes in the past of plus EV Ferguson. There's this long list of cases where the Supreme Court in our opinion now looking back made horrible horrible decisions that have been overturned. So it's not that law. Settled law can never be overturned. In fact, it should be. You know if it's bad law.

Yeah, I think the argument is it should be overturned, but you should always story decisis. You should always. Not do it right. Unless you don't take it very seriously. Is that the way to look at it?

The main you know a lot. A lot of folks in the media. You know we've been very critical of the court over the past four or five years. The process to become a justice is very political. You know, arguably it shouldn't be, but but here we are and it is so getting a justice nominated and confirmed very political, always covered very intently. And so everything the court does now we kind of view in a political light, which I hate to do it that way.

It happens, it comes up. But anyway, so if the Supreme Court is going to say that that that women American Americans don't have a right, a constitutional right to abortion. Then that leaves it up to the states, right? That leaves it up to the federal government or the state government to do something. So the Supreme Court is not saying abortions should be illegal. This is a big step if they if they do, in fact, say abortions are not a constitutionally protected, right? Because then that leaves it open to every state to interpret Congress to interpret. And so when we were talking about trigger laws, a lot of states have taken the step to say, hey, in this state.

It'll be 100% illegal, right? And then other states like you said, New York and California are going out of their way to say not only will it be legal for like I think I saw New York's governor say not only will it be illegal in New York, but anybody who needs this come to New York. That's what you say ultimately, is it's just going to be more difficult for a woman who wants to get an abortion to get an abortion if this is how it all plays out. But at any at any moment, and this is what the court I think this is what Alito saying, you know, we've had all these cases and every year we have to kind of decide and and the court is not a legislative body, right? And I think, and maybe Alito got this part, right?

I don't, I'm not gonna say I agree with everything Alito did. But he said, this is a matter, you know, that needs to be your elected officials need to take care of us, right? And elected officials let us down a lot, which is why we have the court, right? We have we have folks who have a lifetime appointment, who can kind of look at this. But if it's going to be left to elected officials, and that's the scheme that we're stuck with until someone acts, and it could be left up to elected officials in the states, or it could be him. could be handled by elected officials in federal Congress as well, that they could actually implement something to take care of this at a national level.

They haven't, right? Congress could do something about this tomorrow. Congress could say, we don't care what the Supreme Supreme Court says, but abortion will be legal, you know, and then they could set a federal structure. And then we wouldn't, we wouldn't care what the final opinion of the Supreme Court is. And I think one thing that's especially come up a lot on the media outlets is kind of just the reasoning in his argument. Um, and, you know, Alito is a wonderful justice is obviously a sound argument.

We're not saying it's wrong or it's right. But I think it has implications that maybe weren't properly considered a little bit. And I say that because the way he attacks the right to privacy and how the court came up with that leaves open the avenue for those other cases that were decided under right to privacy using nicely rooted, right, using a deeply rooted standard. I think is what's kind of frustrating a lot of people that at home that don't understand because at the time, he goes back to like 13th century English law, or even early 20th century, to say how much it wasn't deeply rooted.

And his analysis of the history is correct. But I think not accounting for how the right to privacy kind of evolved leaves open the right to contraceptives case, or the right to marriage case, or even, I think a lot of people's fear right now is gay marriage case. Because if the right to privacy doesn't exist, that's what those cases were kind of firmly standing.

That's why you have story decisis. Right. Yeah. Well, how crazy is it to think there was a time when a married person could get contraceptives? Yeah, pretty crazy. But there's a Supreme Court case that said, Hey, this is nuts. But at the same but at the same time, and that's that that speaks to societal changes, too.

Because when that was law, there was probably a bunch of people who just were okay. This is what it is. Right. Yeah. Makes sense.

Doesn't make any sense now. But this this right to privacy that that has been, I don't want to say created or invented, but this right of privacy that has been read into the constant tuition. Not only has it been really in play the past 20 or 30 years, I'm sure, you know, 2030 4050 years from now, you're gonna see a lot more rights, right?

Right. Maybe not with this court, but as the court changes, these are young justices, this court's gonna be around for a while. Young justices sounds like a sweet TV show. But I think that's kind of like the big media concern right now because it just, it leaves a lot of things open because this same analysis because it is so sound can be applied very easily to those other cases.

So a lot of people are fearing, you know, contraceptives right now, gay marriage, things like that. And I think rightfully so because a little left no room for interpretation. He was pretty clear. Yeah, a lot of room to explain.

Yeah, plenty. And I think that's why we haven't heard anything because this is what he's been doing for like 100 days. Like since oral arguments. He's just been writing maybe a page a day. Yeah, he's not watching holy moly man.

No, he's not enjoying holy moly with his family. Like he even has a case. I mean, a law from every state in the 1800s saying was probably the most entertaining part of the Toledo keeps saying there's 26 states that have asked the Supreme Court to overturn Roe v. Wade. And so 26 states would be half half the union, not half the population, but half the union. His argument is the you know, the Supreme Court has asked has asked the Supreme Court to overturn Roe v. Wade. So you definitely you definitely I think have a fairly evenly divided populace on the issue, baby. Maybe that's what that tells us.

All right. So being the non lawyer on set. The over non lawyer on set. So it's drafted sometime in February. It's leaked in early May. We don't know how much it's changed.

But the fact that it was leaked, somebody wanted that information out. As a show, the outlaw lawyer, how do you think this is gonna pan out? That's prediction.

That's a real tough prediction. They will there will be an investigation. I think they will probably figure out who did it. And it will probably be a lower level employee that probably gets hope it's a lower level employee. I can't imagine a law clerk doing this. And again, there's reasoning on both sides for this leak to happen.

And I don't know, you know, I don't know. Yeah, Supreme Court law clerks are typically young folks, relatively fresh out of law school. They've got very promising careers in front of very promising Supreme Court clerkship have an issue that in the past, people have been willing to literally bomb places over. Yeah, well, a law clerk feels strongly, you know, a law clerk is a practicing we call it so we say a law clerk, but that's a practicing attorney. So that's someone who's done very well in law school, being a law clerk in a few specific law schools. Yeah. Pass the bar.

Yeah. So you're you're a practicing attorney, and you're clerking with the US Supreme Court. So your future is wide open.

It's brilliant. Yeah, you're wearing shades. Your future so bright, you're wearing shades. All right, so I got a law clerk would do it because that the risk would be if it's found out, I would imagine you're getting disbarred, or you're at least going to be Yeah, suspended.

So your your careers over, right? You know, so that's you can't imagine they would do it. Can't imagine a Supreme Court justice would do it. I think that would almost be unthinkable. But yeah, but we thought this opinion was unthinkable, too. And I think that's why it's hard to even predict what happens next. And I think the only I mean, I'm already kind of interested to see dissents. I know there will be one because it will probably be equally scathing, equally scathing, completely ineffective, or they're not doing right. Or if somebody writes a concurring opinion where they agree in his ruling, but not in his reasoning, like, so I'm already like, I want to know more when I know more.

I think I know we're coming up against the the commercial break. But this says a lot. This tells us a lot we didn't know. But it also leaves a lot of questions.

Yes, we don't. There's a lot we don't know. There's a lot we don't know. It'll lead to another show.

That's my guess. The outlaw lawyers Josh Whitaker and Joe Hamer Whitaker and Hamer law firm the power behind the program. Our special guest today Cassandra Nicholas and Taylor Scruggs Smith attorneys at Whitaker and Hamer.

We're going to be back right after this short break. But I do want to remind you that if you've got a question legally that you need an answer for we've got a number for you 800-659-1186. That's 800-659-1186. Leave your contact information briefly what the call is about an attorney with Whitaker and Hamer will be in action. And just a reminder, Josh and Joe, they're managing partners of the firm and they're practicing attorneys here in North Carolina. We're back. Welcome back in to the outlaw lawyers Josh Whitaker and Joe Hamer managing partners at Whitaker and Hamer law firm practicing attorneys here in North Carolina.

I'm Morgan Patrick consumer advocate joined on set Cassandra Nicholas and Taylor Scruggs Smith also attorneys at Whitaker and Hamer. We have done a whole bunch in the show and we're going to be back after this short break. I think one of the things we haven't talked about is again. We don't know who leaked this Supreme Court draft. We don't know why they did it.

They don't know what we don't know what the reasoning is. I think one of the things that we can say will definitely happen though as a result is there will be a lot of threats. Maybe is maybe that's not the right word, but I think threats to the Supreme Court and how it stands and how it operates and one we've. We've kind of seen Congress and the executive branch used before is court package. So Congress has the ability to expand how many people actually sit on the Supreme Court. That's not set in stone at all. It actually varied during history between five justices and 10 justices. It's been sitting at 9 justices since 1869. But that could absolutely change and I think the last time it was really.

I guess I'm gonna use Josh's words of threatened, but was I believe around FDR's New Deal when it was coming out that they might overturn all of his New Deal procedures. But if you double the size of the court and add like 8 new liberal justices, that would absolutely change the outcome of every case going forward. Definitely, and I think this issue is important enough to enough people as long as as long as let's say I guess it would be Democrats. So if there's enough Democrats in Congress, if there's enough Democrats in power, and I would say probably there's some Republicans too that I think would be aggravated with what's transpiring.

So if you have the support and you could nominate. And confirm what's the supreme 16? What's the limit on the total? I don't remember what the limit is on the total justices that that executive branch. I feel like it's 15 or 16.

I don't know what it is either, but. You were like you said, here's 8 new or 7 new or however many right liberal minded justices. So now the conservative majority of five or six is a five or six minority, but the Senate would need a vote of 60 people unless they get rid of the filibuster and then they only need 50 and I haven't looked. I know we're coming up with a vote of 60 people. Unless they get rid of the filibuster and then they only need 50 and I haven't looked. I know we're coming up on midterms.

I don't know. You know we're pretty evenly divided Senate right now, but something like this being leaked at this time and that being thrown out there might motivate. Some bases together and vote and I think one thing we should add to is that I know a lot of people are wondering what the newly appointed Justice Jackson's opinion is on this and I think was kind of important. Note that she's not in this case, so she's not. She's she's not a vote. She's not can't write an opinion on it. She's not on the court yet, so she has this really long wait period.

They're like wow, it may be a really long wait period, but she's not on this term. The outlaw lawyers. Another one in the books. Josh Whitaker, Joe Hamer, your host, the managing partners at Whitaker and Hamer law firm. Our special guests this week. Cassandra Nicholas and Taylor Scruggs Smith, also attorneys at Whitaker and Hamer. If you've got a legal question, give him a call 800-659-1186.

That's 800-659-1186. You can email your questions to the show questions at the outlaw. See on the radio and on YouTube. Next week. North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show contact us directly.
Whisper: medium.en / 2023-04-22 12:54:40 / 2023-04-22 13:17:34 / 23

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