Air Date 4/16/2022
#1483 Coming Catastrophe at the Supreme Court
[00:00:00] JAY TOMLINSON - HOST, BEST OF THE LEFT: Welcome to this episode of the award-winning Best of the Left podcast, in which we shall take a look at the coming wave of attacks on abortion, and the foundational concept of privacy more broadly, that are making their way to the Supreme Court for likely rubber stamping by at least five of the deeply conservative current justices. Undermining the established precedent of privacy that abortion rests on can and likely will have ramifications far beyond reproductive rights. And so we explain that today.
Clips today are from Democracy Now!, The Thom Hartmann Program, Amicus With Dahlia Lithwick and The Bradcast with additional members-only clips from All In with Chris Hayes, Past Present and Amicus.
Conservatives on Supreme Court Prepare to _Gut Roe v. Wade_ as State Abortion Bans Multiply - Democracy Now! - Air Date 3-24-22
[00:00:45] AMY GOODMAN: I want to go to the hearings dealing with abortion. Republican senators have tried to portray Supreme Court nominee Ketanji Brown Jackson as hostile to anti-abortion views. Republican Senator John Kennedy on Tuesday asked Judge Jackson when life begins.
[00:01:05] SEN. JOHN KENNEDY: Boy, time flies. When — when does life begin, in your opinion?
[00:01:13] JUDGE KETANJI BROWN JACKSON: Senator, I don’t know.
[00:01:20] SEN. JOHN KENNEDY: Ma’am?
[00:01:21] JUDGE KETANJI BROWN JACKSON: I don’t know. I don’t —
[00:01:22] SEN. JOHN KENNEDY: Do you have a belief?
[00:01:23] JUDGE KETANJI BROWN JACKSON: I have personal, religious, and otherwise, beliefs that have nothing to do with the law in terms of when life begins.
[00:01:35] SEN. JOHN KENNEDY: Do you have a personal belief, though, about when life begins?
[00:01:38] JUDGE KETANJI BROWN JACKSON: I have a religious view —
[00:01:39] SEN. JOHN KENNEDY: Religious belief?
[00:01:41] JUDGE KETANJI BROWN JACKSON: — that I set aside when I am ruling on cases.
[00:01:45] AMY GOODMAN: So, that was Senator Kennedy Tuesday. This is Republican Senator John Cornyn, questioning Judge Brown Jackson on Wednesday.
[00:01:54] SEN. JOHN CORNYN: No one suggests that a 20-week-old fetus can live independently outside the mother’s womb, do they?
[00:02:05] JUDGE KETANJI BROWN JACKSON: I don’t know.
[00:02:06] SEN. JOHN CORNYN: I mean, you need — the child will need to be fed or sheltered and all the other essentials to sustain human life. So there’s no suggestion that after 20 weeks that a child can live independently, correct?
[00:02:22] JUDGE KETANJI BROWN JACKSON: Senator, I’m not a biologist. I haven’t studied this. I don’t know.
[00:02:29] SEN. JOHN CORNYN: You don’t know whether an unborn child could live outside the womb at 20 weeks’ gestation?
[00:02:36] JUDGE KETANJI BROWN JACKSON: What I know is that the Supreme Court has tests and standards that it’s applied when it evaluates regulation of the right of a woman to terminate their pregnancy. They have — the court has announced that there is a right to terminate, up to the point of viability, subject to the framework in Roe and Casey; and there is a pending case right now that —
[00:03:05] SEN. JOHN CORNYN: Right.
[00:03:05] JUDGE KETANJI BROWN JACKSON: — is addressing these issues.
[00:03:09] AMY GOODMAN: At the same time as the hearing yesterday, Idaho became the first state to enact a law modeled on Texas’s near-total ban on abortions. The Republican governor signed the bill Wednesday, which bans abortions after around six weeks of pregnancy and allows anyone biologically related to the fetus to sue abortion providers if they defy the law. The only exceptions are in case of medical emergency, rape or incest, but the latter two require the patient to have reported a crime to police.
Also Wednesday, Oklahoma passed a total abortion ban that would be enforced by “bounty hunter”-style lawsuits.
Imani Gandy, if you can talk about how Judge Jackson responded, and how this is all happening as this wave of anti-abortion laws are passing across the country?
[00:04:01] IMANI GANDY: I think Judge Jackson’s response was perfectly appropriate. There’s no indication that she has ruled extensively on abortion rights cases. The Supreme Court itself declined to determine... to make an assessment as to when life begins... specifically declined to do that in Roe v. Wade.
I think it’s a bit absurd for these Republican senators to imply that she is somehow hostile to anti-abortion views, when the criteria for Republican-nominated potential Supreme Court justices is that they essentially vow that they will overturn Roe v. Wade.
Now, certainly in the hearing room, they won’t say something like that. You know, then-Judge Amy Coney Barrett wouldn’t say something like that. They’ll say something like, “It’s not appropriate for me to opine on legal issues that are before the court right now,” or “It’s not appropriate for me to opine on how I would rule in a hypothetical case,” because, as we know, justices are ostensibly beholden to precedent and beholden to the rule of law.
But as we’ve seen over the last six months now, abortion rights don’t fall within that framework of constitutional rights that the Supreme Court feels that it has an obligation to uphold. Roe has been functionally void in Texas for going on six months. And as you mentioned, there are states that are falling like dominoes, that are rushing to enact these bounty hunter-style bills which permit literally anyone in the world to snitch on someone who’s either getting an abortion or who is helping someone get an abortion, abortion funds and the abortion access pipeline — clergy people, counselors, social workers, lawyers. All of these people are being entrapped by this bounty hunter system, and it is chilling constitutional rights.
And the Supreme Court right now doesn’t seem to care about that. And you can tell that it is very upsetting to someone like Sonia Sotomayor, who has written, I think, four dissents now, each increasingly more outraged than the other, because the Supreme Court is ignoring its own precedent.
And it seems as if, for example, the 5th Circuit Court of Appeals' Judge Edith Jones, during one of the hearings in the 5th Circuit, basically said, “Well, shouldn’t we just wait to see what the court does on Dobbs?” says? And that’s not the way — that’s not the way it works. No, you shouldn’t wait to see what the court does on Dobbs, which is the Mississippi case challenging Mississippi’s 15-week abortion ban. What you do is you uphold the law as it’s written on the day that you’re supposed be hearing an issue. That means Roe v. Wade is still the law of the land. It may not be in two months, but it is now.
So, Judge Jackson’s response was appropriate. And had she been a Republican-nominated justice, or judge — excuse me — Republicans would have been happy for her to say, “I’m not going to opine,” because they know, in their back pocket, when it comes time to decide Roe v. Wade, Amy Coney Barrett and Brett Kavanaugh and Neil Gorsuch, all of these justices that Trump appointed, who were required in advance to have anti-choice views, they’re all fine. They’re all sitting on the judge just waiting for their opportunity to, essentially, gut Roe v. Wade.
[00:07:09] NERMEEN SHAIKH: Dahlia, could you also respond to that, and the fact that you’ve said that Senate Judiciary Committee Democrats did not connect the hearing to what’s going to be a catastrophic series of progressive losses at the Supreme Court? Talk about what other progressive losses, in addition to reproductive rights, you’re referring to.
[00:07:33] DAHLIA LITHWICK: I think the single most important thing that I saw in the questioning around abortion was how little there was. And to the extent there was questioning around abortion, it presumed, as you just heard, that abortion is already over; that Roe v. Wade has been nullified, and that was assumed. And then the questions really moved on to other things within that bucket of privacy rights and family autonomy rights, to, sort of, all the substantive due process, unenumerated rights.
And the questions we were getting were really chilling. John Cornyn raising the prospect of maybe doing away with Obergefell, the marriage equality decision. All of the rights, including contraception, in that bucket that are protected by Roe, I think, are on the table now. And it’s why you were hearing talk this week — inside the chamber, you’re hearing talk about, maybe, Griswold v. Connecticut, the right to contraception within a marriage, maybe that should be revisited. Outside the chamber, we were hearing that maybe Loving v. Virginia, the right to have interracial marriage, also should be left to the states.
So, I think we need to be really clear that the target has moved. It is presumed that Roe is going to be reversed in a couple months — and I think that’s fair — but also that everything that comes with it is now fair game. And that’s why you’re hearing about marriage equality. It’s why you’re hearing about birth control.
The GOP Is Now Coming For Birth Control - Thom Hartmann Program - Air Date 3-21-22
[00:09:01] THOM HARTMANN - HOST, THOM HARTMANN PROGRAM: Senator Marsha Blackburn released a video statement over the last weekend in which she talked about -- and I'm quoting from her, she said, "Constitutionally unsound rulings like Griswold v Connecticut confuse Tennesseeans and leave Congress wondering who gave the court permission to bypass our system of checks and balances."
Now what is she talking about here in Griswold V Connecticut? There's actually a whole chapter devoted to this in my new book, The Hidden History of Big Brother in America, because this, it was the first case in the history of the United States, where a right to privacy was identified in the Constitution explicitly by that name.
1965. There were laws on the books that went back to the 1800s and wanting Connecticut specifically that went back to the 1880s or 1890s, that said it was illegal for anybody, including a married couple, to have any form of birth control in their home, to be in possession of birth control. Birth control was as illegal as drugs, right? You couldn't have birth control in Connecticut, and in multiple other states as well. And the people who were prosecuted for this were mostly single women, but occasionally even married couples. This was a married couple that brought the Griswold case, if my memory serves me right. And in that case, in a seven to two ruling in 1965, the U S Supreme Court said, no, we are looking at the first, third, fourth, fifth, and ninth amendments. And we find a right to privacy. And that right to privacy includes your own bedroom. The government can't kick in the door and see if you've got birth control.
Now they were talking about condoms and diaphragms back then. Well, they were also talking about the early birth control pill, which was legalized in '61. This was '65. They didn't legalize birth control for single people, by the way, in this decision in 1965; that came in a Supreme Court decision in 1972.
So right up until 1972, in some states, including Connecticut, it was a crime for a single person to possess any form of birth control, including a condom.
So now Marsha Blackburn comes out and says she's going to oppose the nomination of Ketanji Brown Jackson, because judge Jackson refuses to say that Griswold was wrongly decided. In fact, judge Jackson thinks that Griswold was correctly decided, that people should have the right to have birth control in their own home.
Here you have one of the most influential Republicans in the United States Senate, a secondary member of Republican leadership. She is on the judiciary committee that will be interrogating, or is probably right now as we're speaking, interrogating, judge Jackson, saying that Tennesseeans are confused. And Congress is wondering who gave the court permission to bypass our system of checks and balances. In other words, the law against birth control was passed by Connecticut. Who the hell does the Supreme Court think they are overturning that law? That's the essence of Marsha Blackburn's statement.
Now where this gets really interesting -- and by the way, this 1965 Griswold decision, being the first time the right to privacy was found in our Constitution, and the reason why of course is the word "privacy" doesn't exist in the Constitution because in the 1770s, it referred to using the toilet, which is why they're called "privvies." But nonetheless, this decision, or this argument that Blackburn is making, that Griswold should be reversed, would end the right, the legal right to own birth control in the United States.
Last summer, the Republican Study Committee issued a report titled or memo titled "Lean Into the Culture War." And they said in this document, the Republican Study Committee, they said we are in a culture war, and we are winning. Marsha Blackburn's statement that we should criminalize birth control in the United States is part of that Republican culture war.
So my question to you is: How far can they go before we start saying before Republicans, before moderate voters, between what'd you call independent voters in the middle voters, before they start saying, Wait a minute! I mean, making it harder to vote, down in Texas, as many as 30, 40% of voter applications are being turned down. In Florida, people are being stripped from the voting rolls. In Ohio, they even took it to the Supreme Court. May we please purge all these Black people from the rolls in Akron and Cleveland, the Supreme Court says, yes, you may. In a totally partisan 100% Republican appointee decision.
And America hasn't freaked out. I mean, I think African Americans across the country are going Whoa! But by and large, white people in America, like That's okay with us.
So is this going to be the thing? I mean, they're going after trans kids, they're going after gay people. They're going after lesbians. What is it going to take for Americans to say, Republicans, you've gone too frigging far!
We now know, the jig is up. We now know what the game is. The game is to put us into subjection. It is to basically overwhelm America with a right-wing ideology to ban our books, to shut down our schools. Enough already.
Fundamental Rights Doublespeak Part 1 - Amicus With Dahlia Lithwick - Air Date 4-9-22
[00:14:48] DAHLIA LITHWICK - HOST, AMICUS: so I think I want to start by just asking you if my initial framing is correct and that in so far as these confirmation hearings, aren't just to achieve a confirmation, but our kind of messaging wars about how you think about the constitution.
It's a mistake to say that going after on a numerated rights, going after substantive due process is just wordplay that there's a game here and the game is to roll back rights and rolling back. Those rights does not begin or end with abortion.
[00:15:24] DAVID GANS: I do think that conservative. Both on the court and in the conservative legal movement and in the Senate, want to roll back a century of constitutional jurisprudence that recognizes that the 14th amendment broadly protects fundamental rights that are inherent in autonomy, dignity, and equal citizenship.
And they're not limited to rights that are set forth in the four corners of the Constitution's text that comes directly out of the constitutional texts in history. And it's reflected in Supreme court decisions. Going back over a century, protecting rights, to be a parent rights, to marry a loved one rights to raise one's children, according to one's values, rights to access contraceptives, right.
Choose whether or not to have children and including the rights to have an abortion. And from the point of view of conservatives, and we saw this repeatedly at judge Jackson's hearings, these are all made up rights. Senator Kennedy sort of said, this is just policymaking and that's really deeply wrong as a matter of the 14th amendment.
This conservative attack on an enumerated rights. This idea that if it's not written in the text, it can't be a fundamental right. Is deeply problematic in many ways, as a matter of the entire history of our constitution, it goes back to debates at the founding over. Should there be a bill of rights? And one of the concern was, look, if you try and list all the rights that are protected, you're not going to get.
There's a wonderful quote from James Airedale, who is a very prominent member of the founding generation later served on the Supreme court that says, make whatever list you want. I'll immediately named 20 or 30 that aren't listed there. So there was this idea, you can't capture everything. And the ninth amendment doesn't protect an underrated rights, but it sort of sets out this rule of construction just because it's not listed.
Doesn't mean it's not a protected, right. And in the piece that you mentioned, what I talked about is two big influences at the time of the drafting of the 14th amendment and the first and most important is the declaration of independence. The framers who write the 14th amendment view the declaration of independence as the touchstone.
This was the thing that was key to. The American ideals of freedom of equality. And it was essentially buried because of slavery. And so the idea behind the 14th amendment is to restore the declaration and they call the 14th amendment, the gem of the constitution, and it's speakers. It's going to write the declaration into the constitution.
The declaration speaks broadly of inalienable rights. It doesn't try and list what those rights are. The 14th amendment does the same thing. It talks about privileges or immunities of citizenship. It talks about guaranteeing Liberty without due process of law guarantees equal protection of the laws. It doesn't try and enumerate the rights that it sought to protect out of this recognition that no possible set of rights would be exhaustive.
And in those debates, they looked back to the ninth amendment and they say the ninth amendment completed the documented in ensured that all fundamental rights would be guaranteed. And there's a second point that gets to why the text and history protects a numerated rights. The 14th amendment emerges out of the crucible of slavery and it defines the promise of freedom.
It's trying to guarantee those fundamental rights that had been long denied to those held in bondage and in the debates they are looking back at what did it mean to be denied freedom to be held in slavery. And many of those key rights were not rights that were a new brain in the constitution. Many of them were like freedom of speech protection against unreasonable searches and seizures were key to the bill of rights, but many of them weren't.
And what were some of those rights, the right to marry and save. People had no rights to marry at all. Frederick Douglas says this is a nation that boasts of Liberty, but 3 million people have no right to marry the right to start a family choose who's in your family. That was all impossible under slavery.
The children were treated as a commodity. They could be bought and sold. They could be separated. Parents had no right to care for their children. So these fundamental rights are very deeply rooted in the history of the 14th amendment. After the slave trade closed, a key to the expansion of slavery was the idea that the slave system would replicate itself through forced procreation, to rape through forced enslaved women, to procreate with other slaves as a matter of coercion and the violence inherent in that.
And these were not kind of peripheral parts of slavery. These were viewed as kind of the core evil, and they were central to the abolitionist critique of slavery that, that helped change the constitution that led first to the 13th amendment and then to the 14th to them. And you can sort of chart the progress of.
The idea that these are fundamental rights throughout these debates. When the 13th amendment is debated a number of the members of Congress during the debate, sort of say, you know, under slavery and then Steve person, couldn't say my home, my wife, my body, these were all fundamental rights and they are fundamental because they had been denied under slavery.
One of the things you see on the court today is conservatives take this view that we can't figure out what is a fundamental, right, unless it's listed. So the answer is, we're going to say, if it's in the text, it counts, otherwise it's not going to be protected or we'll devise a set of tests that are so onerous that no right.
Will qualify as fundamental unless it's listed in the text.
so I want to sort of back up part of the story goes back to the fact that kind of a very key piece of the 14th amendment, which was the privileges or immunities clause that says no state shall enforce a law that denies the privileges or immunities of citizens.
That was essentially stripped out of the constitution very early on in 1873, in a case called the slaughterhouse cases that kind of removed the language of the 14th amendment. That seems to very clearly protect substance fundamental rights. And since then many have pushed both on the left and the right for the court to restore that in line with its texts and history, but the court has never done that.
And instead, the due process clause has done the work of protecting fundamental rights. And the response often from conservatives like Senator Cornyn is to sort of say, Well due process seems to be more about ensuring fair procedures and it doesn't make sense to use it to protect fundamental rights from denial by the states.
And so essentially what the court has done is to enforce the original meaning of the 14th amendment and the guarantee of fundamental rights that are at its core by using the due process clause. Because as late as 2010 case called McDonald's, there was a big push to. Use the privileges and immunities clause, which is the clause that the text and history says is the one that protects fundamental rights.
And the response was there's too much water under the bridge. We've used the due process clause for over a century. And as a matter of precedent, even though we get the force of history, we're going to continue with that approach. And so that is the approach that the entire court has used. Then that case justice Scalia sort of said, but you're going to be the darling of the professoriate for pushing privileges or immunities, but we're not going to do it.
But now you see conservative sort of turning around and saying, okay, If we're focusing on due process, that seems like an odd way to protect substance fundamental rights.
Law Professor Michele Goodwin Condemns Wave of _Unprecedented & Unfathomable_ Anti-Abortion Laws - Democracy Now! - Air Date 4-8-22
[00:23:43] AMY GOODMAN - HOST, DEMOCRACY NOW!: Your specialty: the whole issue of reproductive rights -- to continue on that point, but at the state level, because as all of this has been happening, I want to ask you about the near total ban of abortions that lawmakers in Oklahoma just voted to approve this week. The bill that would make it a felony to perform an abortion in most cases, punishable by up to 10 years in prison and fine of a hundred thousand dollars. It doesn't contain exceptions for rape or incest. It comes after Texas enacted its total ban -- near total ban -- on abortions. Nearly half of all patients who traveled out of state for their abortion went to Oklahoma. Oklahoma Republican governor Kevin Stitt expected to sign the antiabortion legislation has described himself as the country's most pro-life governor. Can you talk about this bill, which is expected to be signed into law, and the rash of other bills being passed in Republican-controlled states, not to mention what the Supreme Court is considering.
[00:24:42] MICHELE GOODWIN: These are horrific times for reproductive liberty, reproductive freedom. And they're chilling times in general for the rule of law. What we've seen is that the rule of law has been made scorched earth. And we've seen that through the Supreme Court and how it evaluated and allowed to go into effect Texas's SB 8 law, which has all of the kind of nostalgia of slavery age types of laws with its bounty hunter provision, which is plucked right out of antebellum slavery with the fugitive slave acts which were upheld by federal courts, including the United States Supreme Court. And if you think about it, Amy -- and I hope to come back on your show where we really do some deep dive in this area -- you'll see that some of what's being framed in this new era of legislating against abortion rights are being plucked from Jim Crow, are being plucked from the age of slavery. You'll see, for example, states going after people who help people via interstate, getting to another state to terminate a pregnancy. Well, that looks just like a page out of the white slavery laws, which were laws that were attempting to surveil black men with white women who were traveling to another state where they could be safe and have a healthy relationship, marriage, et cetera.
What these laws seek to do is at the state level essentially undermine Roe v Wade while Roe remains the law of the land. Roe v Wade has not been overturned by the Supreme Court. But you see states engaged in a kind of behavior which is unprecedented and unfathomable.
And I'll give you a quick example because I know that we have to go. But if you think about Brown v Board of Education of Topeka, Kansas, 1954. And imagine that one year later, two years later, five years later, states like Louisiana and Oklahoma say, well, we don't have to abide by Brown. That was Brown v Board of Education of Topeka, Kansas. We're Oklahoma. We're Missouri, we're Louisiana. We can segregate. And those laws don't apply to us. Well, that's the era that we are in right now, and this is why it's so dangerous.
But I would say that anybody who's listening to us today, who are watching and who's concerned about reproductive health rights and justice, if you're concerned about that, you should also be concerned about voting rights, because the same people seeking to undermine reproductive freedom are also seeking to undermine the freedom to be able to vote. And we see that in those same states.
Legal journalist Mark Joseph Stern on SCOTUS, corruption, gerrymandering - The Bradcast - Air Date 3-30-22
[00:27:20] BRAD FRIEDMAN - HOST, THE BRADCAST: You know, I don't think they are paying attention, Mark, and the reason I say is this. I've characterized the KBJ confirmation hearings as stupid and ridiculous. And they were. You're of course welcome to disagree with me if you like, but for all of the distractions about judge Jackson, supposedly being soft on child porn users and terrorists -- both of which I should add are absurd charges -- there was a much more disturbing line of questioning that emerged that received much less attention it seems to me, but one that actually deserves much more notice, at least for those who believe in such conservative concepts as freedom and privacy from big government and constitutional rights. Kate Riga writes on a Wednesday morning in a piece at TPM headlined, "Loud and Proud: Republicans Take Aim At Whole Constellation Of Privacy Rights." she says, "In public remarks, leading Republicans have almost casually and with little fear of political recrimination begun to relitigate same-sex marriage, contraception and interracial marriage with a robust 6-3 conservative majority on the Supreme Court, the GOP's ambition to rework the privacy jurisprudence underlying many of the civil rights gains of the last 60 years isn't idle aspiration but a very real threat." And she goes on to argue that if Republicans retreated on gay marriage over the past decade, it's only actually been seven years since the Obergefell decision, but if they did, it was only a tactical retreat. And she further cites lines of questioning that came up during judge Jackson's hearings that seemed to eye 1965's Griswold v Connecticut establishing the right to privacy for adults to use contraception and even Loving v Virginia, the 1967 ruling allowing interracial marriage in all 50 states.
Is Kate right in sounding those alarms that the right actually is eyeing not just Roe v Wade, but marriage equality, contraception, interracial marriage at this point?
[00:29:34] MARK JOSEPH STERN: Kate is dead on. And I wrote a piece about this myself that makes a similar argument. One of the most troubling lines of questioning came from Senator John Cornyn of Texas. And he really took direct aim at Obergefell, the marriage equality decision, and made it very clear that he would like to see that decision overturned. And a number of other senators brought this up too. And really argued for the unraveling of the entire constitutional doctrine of substantive due process, also known as unenumerated fundamental rights. This idea that there are some rights really deeply rooted in history and tradition that the government can't take away, including the right to marriage, the right to intimacy, the right to raise a family. And you know, this has been an issue in this abortion case that's pending before the court right now, where it's very difficult to understand how the court could overturn Roe vs. Wade without dramatically undermining, if not also overturning all of these other decisions from marriage equality to contraception.
And I just want to add one interesting footnote here, which is that if you go through and you read a lot of either the legislation or the lawsuits that have been filed by Republicans trying to promote parental control over schools, parental control over education, trying to outlaw gender-affirming care for trans youth, trying to outlaw instruction on LGBTQ issues and people in the classrooms, it actually often rests on an unenumerated fundamental right derived from substantive due process, which is the right to raise one's children as one wishes. That is a heartland right, as we say in the law, of substantive due process, and it is not mentioned in the Constitution. The word marriage, the word children, they are not in the Constitution. This is an idea that the Supreme Court has gleaned from the underlying values of the Constitution and from tradition. And so it is very, very odd to see Republicans criticize this doctrine as it protects gay people and women and other couples and families, but then to turn around and try to deploy it in their culture war quest to give parents an absolute right over their children's education, their children's upbringing and say, well, this is rooted in the Constitution. You just can't have it both ways.
[00:31:54] BRAD FRIEDMAN - HOST, THE BRADCAST: Yeah. And they seem to be imagining certain ideas, rights into the Constitution on that level. And then on another level, like when it comes to Roe v Wade, they're saying, well, there is no right to an abortion in the Constitution. There is no right to privacy in the Constitution, as Roe v Wade is based on. And since they're getting ready to overturn Roe v Wade saying there is no right to privacy on which to base it, we have that right -- and help me understand this, Mark -- but doesn't that right come out of decisions like Griswold v Connecticut in 1965 regarding the use of contraception where they developed this constitutional right to privacy, they establish this, and therefore all of these other cases. In other words, if they knocked down Roe v Wade on the idea that there is no right to privacy, then all of these other cases that are based on that can also fall next. Am I understanding it correctly?
[00:32:54] MARK JOSEPH STERN: You are absolutely correct. And I'll add that the drafter and ringleader of the Texas abortion ban, the vigilante abortion ban, he filed a brief before the Supreme Court urging it to overturn Obergefell, the marriage equality decision, and Loving v Virginia, the interracial marriage decision, after it overturns Roe. He said, you should leave these other decisions hanging by a thread. And your decision overturning Roe, and then you should come back and just overturn them too, because they are adjusted invalid as Roe.
And I think you're basically right about all of these decisions being intimately connected to this right to privacy, but it actually goes back even further. There were several decisions in the early 20th century, just to return to my point, that involves the right to raise children. So the right to send your children to private schools, the right to teach your children a foreign language, that really kind of kicked off this doctrine as we know it, but it's not just about privacy. It's also about a kind of fundamental liberty to engage in intimate relationships, to have children, to raise your children as you see fit or not to have children. And again, if you start untangling it, it all falls apart, including bedrock decisions that form the basis of parental rights under the Constitution.
So, we all know the Supreme Court can just gerrymander its decisions to disfavor liberal stuff and favor conservative stuff. But I would love to see conservatives engaged with this a little bit more, more honestly, because they are putting their pet issue in line for execution by arguing for this entire constitutional doctrine to be overthrown.
Fundamental Rights Doublespeak Part 2 - Amicus With Dahlia Lithwick - Air Date 4-9-22
[00:34:39] DAHLIA LITHWICK - HOST, AMICUS: So actually this gets to, I guess what I think is my tactic or strategy question, right?
We have briefs in the dubs case that are already saying, Hey, once you're going after substantive due process, let's just be really clear that Oberg EFL is also on very thin. And as you just suggested, you know, we've seen attacks from various states on Griswold. We've got, I think all three of the attorney general candidates in Michigan saying there's no right to use contraception rooted in Griswold because there's no privacy right.
In Griswold. That's real. So I think one of the reasons I wanted to have you on was, you know, I'm sure you had this conversation many times the week of the hearing to when you did media, but the answer to that, that you get from the left is, oh, come on. Nobody's going after contraception, come on. You know, Americans firmly, firmly support marriage equality.
There's no possibility that these are on the hook. And I think I have a two-part question for you. One is. Americans also support Roe. That's immaterial. The fact that Americans may be robustly in favor of contraception and the right to contraception or marriage equality doesn't mean that they are necessarily secure constitutionally, but more importantly, doesn't it mean that seeding this ground around row just unerringly means that the court has reasons to suggest that everything that followed row, including Lawrence versus Texas, including Oberg EFL is similarly fair game.
[00:36:24] DAVID GANS: So one, I do think many of the arguments that are being made in Dobbs are arguments that if accepted would destroy much of the line of fundamental rights protections that are deeply rooted in the 14th amendment. And so let me explain that one of the arguments that Mississippi makes in Dobbs. The right to abortion, can't be fundamental because we look at state practice in 1868 and abortion was outlawed.
And so how can it possibly be a fundamental, right? And that's the same argument that was made in Oberg AFL same-sex marriage wasn't allowed in 1868. So how could it be a fundamental right Scalia's dissent in that case basically said that and said, that's the end? That's the case. Like this is easy.
There's no possible way. This can be a matter of fundamental Liberty. The problem is that's also the argument against the fundamental rights holding and loving, which is viewed as one of those precedents that, you know, if your theory doesn't explain loving or brown, then that's a problem with your theory.
In the piece, I sort of look at what judge Roberts then ultimately chief justice Roberts said in his confirmation hearing where he said looking to say practice to define the meaning of the limits on states is really circular. So you can't say. It's constitutional because they've done it. The question is, is it constitutional?
And he said in loving the court looked at whether the right to marry was fundamental and it recognized it was, I think the opinion didn't need to, but it could have rooted it in the fact that at the time of the 14th amendment, the right to marry was celebrated by black people as a core central part of their freedom.
This was one of the fundamental denials that they couldn't have a family, a couple could always be sold away. So the right to marry was very fundamental. And so in loving the court said, it's fundamental. The fact that states have prescribed it, doesn't make it constitutional. And there's kind of a broader point, which is the whole point of the 14th amendment was a response to decades and decades.
Of suppression of fundamental rights. So the idea that you would just say, well, we're going to define what the 14th amendment means by looking to what states to the time kind of turns it on its head. This was the argument that then justice Rehnquist made it row. It's been made in many different ways. In other cases since, and it's sort of a theory that's used to ensure that this entire line of cases would come out the other way.
And you can even look at Griswold. That was a law that was passed in 1879. So if you're looking at the age of state practice, there would be a strong argument. Restrictions on contraception we refine. And the other side says we're doing originalism, but as a matter of originalism it's perverted school segregation laws were on the books, all sorts of, of denials, of fundamental rights and discriminations existed at the time of the 14th amendment, the 14th amendment.
Wasn't trying to lock those in the neck list of results and enacted these fundamental principles. That fundamental rights would be respected quality under the law equal citizenship stature. These are kind of the fundamental
[00:39:36] DAHLIA LITHWICK - HOST, AMICUS: points. So, so what you're saying is that. When John Kennedy, Senator Kennedy accuses, liberal justices of picking and choosing, which on enumerated rights are fundamental.
They're also picking and choosing which rights at the time of the 14th amendment, they think are the ones that are in trying for all time and which can go to so that there's picking and choosing, going both directions.
[00:40:08] DAVID GANS: It's not really a matter of picking and choosing. If you look at the history, the rights that we're fighting about the right to marry a loved one was viewed as fundamental.
The question now is can you discriminate as to who gets to marry? And then you have both the force of the constitutions guarantee, a fundamental rights and its protection of equality that I think strongly supports what the court did and loving, but the court did no burger fell and other cases. So the rights that are viewed as invented are in fact.
Have a very strong foundation in the 14th amendment and in the rights that had long been denied to in-state persons. And if you start with that extremely strong foundation, it protects the rights that are issue. I admit there wasn't any discussion at the time of the 14th amendment of abortion, but once you recognize bodily integrity, the right to choose your family, the right to decide whether to bear, raise children, there's no daylight between those rights that are deeply rooted and the right to.
GOP Forced To Amend Bill That Would Have Legalized Child Marriage In Tennessee - All In w_ Chris Hayes - Air Date 4-6-22
[00:41:14] CHRIS HAYES - ALL IN W/ CHRIS HAYES: Good evening from New York. I'm Chris Hayes.
You know, on this show, we've been highlighting a disturbing new trend on the right, where Republicans and their allies play footsie with fringe conspiracy theorists by attempting to smear Democrats as sympathetic to child abuse. It's a dog whistle to QAnon supporters who believe that the democratic party is made up of a Satan worshiping cabal of pedophiles who run a child sex trafficking ring. That is their belief.
Now, not to be undone... out-done, last night, Republican star congresswoman Marjorie Taylor Greene of Georgia, who has her finger on the pulse of the Republican base, as well as anyone took the rhetoric a step further, doing a way with any pretense and just explicitly calling her political opponents pedophiles.
[00:41:59] REP. GREENE: The Democrats are the party of pedophiles. The Democrats are the party of princess predators from Disney. The Democrats are the party of... of teachers, uh, elementary school teachers, trying to... trying to transition their elementary school-aged children, and convince them they're a different gender. This is the party of... of their identity, and their identity is the most disgusting, evil, horrible things happening in our country. And that's why we have to say it.
[00:42:27] CHRIS HAYES - ALL IN W/ CHRIS HAYES: Now, Greene may be the most extreme Republicans in terms of that rhetoric, her willingness to invoke QAnon; but she is far from the only one pushing that exact line of attack. In fact, it's become mainstream. It was the entire basis of the Republican smears against Judge Ketanji Brown Jackson, soon to be the first Black woman to sit on the Supreme Court in this nation's history, with the vote for her confirmation coming as early as tomorrow.
One of the prolific smear peddlers was Republican Senator Marsha Blackburn of Tennessee.
[00:42:58] REP. BLACKBURN: I do want to go back to the... the issue about the child predators. Do you believe child predators are misunderstood?
So, is it your position that child pornography offenders are not pedophiles?
Do you believe that it matters to the children, and their parents, who suffer abuse, what motivation those abusers had?
I want to make certain that we protect children, and that we continue to do our best effort to protect children. I also want to make certain that we're going to have judges on the federal bench, and justices, that are going to protect those rights of children.
[00:43:48] CHRIS HAYES - ALL IN W/ CHRIS HAYES: Again, the context here is clear, right? That's just, like, I don't know, a few degrees more subtle than Marjorie Taylor Greene, but they're doing the same thing.
Now, if Senator Blackburn is acting in good faith, which seems doubtful to me, but if she is going to be concerned about, as I keep saying, the very, very real issue of child sexual abuse, then it's odd that she doesn't at least appear publicly to be using her power to do anything about a very disturbing situation that's been happening in her home state house.
State representatives in Tennessee have been working on a bill known as HB 233. Now, that's obviously a Republican dominated legislature, and it's basically an anti-gay marriage bill. It would allow the state to make an additional marriage category only eligible to opposite sex couples who do not want to be part of the same institution that allows gay people to tie the knot.
Now, that's bigoted and bad on its own, right? And it's an indication-- and this should be very clear of just how much right wing forces right now are gathering themselves and champing at the bit to roll back marriage equality, that is coming-- but that's not even the worst part of that particular piece of legislation. The House version of the bill, as it was introduced, didn't include an age minimum. Yeah. It means it could pave the way to legalize child marriage, like child brides.
Again, I'm not making this up. I thought this was not true when I first read this story, but just listen to the sponsor of the bill, Republican state representative, Tom Leatherwood.
[00:45:18] REP. LEATHERWOOD: All this bill does is give an alternative form of marriage for those pastors and other individuals who have a conscientious objection to the current pathway to marriage.
[00:45:34] UNKNOWN: Is there no age limit in this bill?
[00:45:37] REP. LEATHERWOOD: Well, again, with... my understanding, you know, I think of... would be, um, 18 as the way this would be construed. Um, so.
[00:45:53] REP. MIKE STEWART: Yeah, last question... but I just want to make clear just what the testimony is: there... there's no age limit? Okay. Well, my... that would be my... I just want to make sure there wasn't an explicit age limit. My, concern...
[00:46:08] REP. LEATHERWOOD: Okay,. no. I'm sorry, I didn't understand your question. No, there's not an explicit, um, age limit.
[00:46:15] CHRIS HAYES - ALL IN W/ CHRIS HAYES: I've watched that several times today. What... what exactly are you up to here, Leatherwood? Like, the... you know, there's no ex... there's an explicit age limit in the law-at-the-time, as the other representative notes; but there's no explicit age limit here.
Now, the other man you heard talking there is Democrat Mike Stewart. He called the bill, "A get out of jail free card for people who are, basically, committing statutory rape." Again, sounds bad to me.
Also, why? What?
Again, just to be clear, this is not an abstract concern. There are people out there with fringe religious beliefs who might take advantage of such a loophole in the law. For examples, there's the story-- somewhat infamous-- of Warren Jeffs, a religious fanatic, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints-- not to be confused with the regular Mormon Church. He's a polygamist accused of having 78 wives, dozens of whom were under age. Back in 2007, Jess was charged... was convicted on charges of facilitating the marriage of a 14 year old to her 19 year old cousin. Again, that sounds disgusting and wrong to me.
Now that alone is pretty horrifying. But wouldn't you know it, Tucker Carlson, one of the most vocal champions of the Democrats-are-soft-on-child-abuse fears didn't see it that way. Didn't think it was a big deal. In fact, back in 2009, he went out of his way to defend Jeffs.
[00:47:35] TUCKER CARLSON: He's not in prison for that. He didn't... Warren Jeffs didn't marry underage girls.
[00:47:40] UNKNOWN: Well, he's in... he's in prison for facilitation of child rape.
[00:47:42] TUCKER CARLSON: Whatever the hell that means! He's in prison because he's weird, and unpopular, and he has a different lifestyle that other people find creepy.
[00:47:50] UNKNOWN: No, he's an accessory to the rape of children. That is a felony, and a serious one at that.
[00:47:56] TUCKER CARLSON: Uh, what do you mean an accessory? He's, like, got some weird religious cult where he thinks it's okay to, you know, marry underage girls. But he didn't do it. Why wouldn't the guy who actually did it, who had sex with an underage girl, he should be the one who's doing life.
The rapist..., the rapist in this case has made a lifelong commitment to live and take care of the person. So it is a little different. I mean, let's be honest about it.
[00:48:19] CHRIS HAYES - ALL IN W/ CHRIS HAYES: Now, I mean, I'm just... I'm just a humble cable news host, trying to get my arms around this.
Um, a few things there: marry, there, I mean, Jeffs did marry them, not in the, "He married them," as in, "They married him," but he "married them," like, as in, like, a transitive verb. Right?
And the argument here is that Jeffs is just a religious weirdo being targeted for his different beliefs, which include child brides, like, a 14 year old. And also the rapist pledged to take care of the 14 year olds, so that's fine. And that Jeff should not be in jail for facilitating the incestuous marriage of a 14 year old.
Which again, that's a view you can have. I think it's really weird and unnerving just me.
In a way, Tucker got his wish! In 2010 Jeffs's conviction was actually overturned. So, he was ahead of the curve there.
Oh, but then, unfortunately, one year later, he was sentenced to life in prison after a jury found him guilty of raping a 15 year old and a twelve-year-old.
Hmm. So I think people are rightly concerned about the prospect of legislation that would legalize child marriage, particularly child brides. I think that's probably what would happen. You would think that being such a great defender of children that Senator Marsha Blackburn of Tennessee, of all people, after that big star turn in those hearings, you know, in the very state where this is being proposed, would be losing her mind about this bill, when it's so glaring and obvious. I mean, given of course the way she lost her mind during those Judge Jackson hearings. But as far as we can tell, not a peep, not one word, not one thing in public.
We actually reached out to her office today to get her thoughts on the perspective bill, and what she thinks about child marriage. We haven't heard back. Weird! You'd take an opportunity to hit that softball, don't you think?
But other people have been reporting about what is happening in Tennessee. In fact, it's generated some pretty negative headlines for obvious reasons. I mean, "The Child Bride Bill" doesn't sound great, does it? So, just today, two weeks after the Tennessee Republicans admitted the bill had no explicit age requirements, they pass an amendment to the bill that would require both parties to be 18 or older before getting married.
Well, good. Took a little bit of work, huh? Even though its sponsor, that guy, Tom Leatherwood, seems to think the amendment wasn't really necessary.
[00:50:34] REP. LEATHERWOOD: My position, that bill never would have allowed, um, minors to be able to get married, because contracts, so forth. But I can see and understand how that might've been misunderstood.
[00:50:47] CHRIS HAYES - ALL IN W/ CHRIS HAYES: Again, round of applause, be clear, it's a good thing. It's good Tennessee Republicans are not legalizing child marriage. It's bad that it basically took weeks of public outcry for them to do something about it.
Again, the very party that claims to be very concerned with protecting children right now, that's accusing their enemies of being literal pedophiles, wrote a bill that apparently would have allowed children to get married, and then they got caught, and after public scrutiny and backlash, they reassessed and changed the language of the bill. No, thanks to Marsha Blackburn.
The Latest Battles over Marriage - Past Present - Air Date 4-12-22
[00:51:35] NICOLE HEMMER - CO-HOST, PAST PRESENT: So, I'm curious. I mean, we've talked a little bit about... about marriage equality, and the path towards marriage equality, though I think, we'll... we'll talk a little bit more about it.
Um, but how does it relate to this other issue that appears in this Tennessee bill, which is about child marriage, and age of consent to marriage? I mean, are those two things connected, or is it just, "Well, we're talking about marriage, so let's throw it all in there?"
[00:51:58] NEIL YOUNG - CO-HOST, PAST PRESENT: Well, and can I just add to that? Because, I think, you know, the Tennessee bill is getting a lot of news, but this is not happening just in one state. I mean, and I think, like, we should be aware of... there's a patchwork quilt of laws around age of consent-- or age that people can enter a marriage-- all over the country.
And then just, I was noticing the other day on Twitter, apparently there's a bill that was put forward in the state of Missouri, um, to outlaw marriages, uh, to children under the age of 14. 48 Republicans voted against it. So, this is... again, it's not just one, sort of. State's aberration here.
But I'm actually having a hard time connecting the dots here in a, sort of, coherent thesis about what is happening, because if the overwhelming political argument coming from the right right now is about the sexualization of children-- and we've talked about that for several weeks now, of how we're hearing that in the political discourse-- how does this get enfolded into that?
[00:52:59] NATALIA MEHLMAN PETRZELA - CO-HOST, PAST PRESENT: This is a really good and hard question, I think. Um, well, one, a lot of the talk on the right about predator... predation of children is about gay predation of children. So, that's the first difference that's happening there. Like, these groomers are often seen as queer people, and it's tied up with a, kind of, anti-trans, anti LGBTQ agenda.
But I would say that the shocking and disgusting abdication of responsibility on this child marriage issue has to do with a commitment to, kind of, prop up heterosexual male power, and the power relations that are seen to be attendant to heterosexual marriage.
And so, um, I mean, that's the only way that I can reconcile those things. That this is about restoring straight men to their rightful place of power in the marital relationship in the home and in society. And that, in that way, those things don't really contradict one another.
I don't know. do you think that makes sense?
[00:54:00] NICOLE HEMMER - CO-HOST, PAST PRESENT: I think it stems straight from patriarchal assumptions of how society should work, and that homosexuality has always been seen as a threat to the patriarchy, because it upends the traditional power dynamics between men and women.
And I think that there... it's almost, kind of, a... a reinforcing of a heterosexual patriarchal dynamic, to put these two things together. To say, first of all, the only real marriage is between a man and a woman. And the man, kind of, gets to control at what age a woman enters into that relationship, or her parents get to control what age she enters into that relationship. Because even though it doesn't specify the age of the woman, or the girl, as opposed to the age of the man or the boy, 90% of couples with, uh, an under-age partner, It's, uh, the girl who's under-age.
[00:54:54] NEIL YOUNG - CO-HOST, PAST PRESENT: Right. And I think even setting aside homosexuality and marriage equality-- which obviously is deeply connected to what's happening here-- but if we could bracket that, and just think about the history of marriage as a heterosexual institution, I think the development of partner-based, um, egalitarian notions around marriage-- whether or not they exist in actual marriages; and we know that even in self-described feminist egalatarian marriages, the actual arrangement isn't very balanced-- but, that is a, sort of, cultural notion of what marriage is and has become.
This seems like a direct challenge to that cultural development.
[00:55:35] NATALIA MEHLMAN PETRZELA - CO-HOST, PAST PRESENT: Oh, totally. The idea of companionate marriage. Um, if you read the literature, I mean, you know, Nancy Cott on this, Estelle Freedman and John D'Emilio, Stephanie Coontz; like, this notion, which is pretty firmly entrenched, I would say, really, in both liberal and conservative circles by now; that, like, you meet your life partner, right, and the two of you have, if not a total relationship of equals-- because every pay statistic, and accounting for domestic care shows that that, in heterosexual marriage, is often not equal at all; but then there's this ideal of, you know, of a.. Of a partnership of equals.
The child marriage story pushes back on that so strongly, and says, "That's not really how it is."
And I.... this conversation we're having-- I know I'm the one that, like, raised this in the first place-- does show how this all coheres. But, on the other hand, like, there's also a conservative freak-out about, like, the sexualization of young girls, and, you know, where you're not allowed to wear skirts above your knee, and all that.
So, it doesn't totally cohere, I think. What do you think?
[00:56:37] NICOLE HEMMER - CO-HOST, PAST PRESENT: I don't think that we should expect it to, or try to make it cohere. I mean, a lot of the attacks about pedophilia, and grooming, and those kinds of things, are political attacks that are not based in a real survey of what the landscape looks like. It's a... it's a shocking and, uh, often a viscerally disgusting charge, and that makes it effective in poisoning politics. And so that's why it's being used.
Um, and there's also so much variety within conservatism, within the right. Um, certainly, there is the kind of buttoned up, "don't-let-your-knees-show" conservatism that's about controlling women's bodies. But, like, look at the women right-wing pundits of the 1990s: their whole aesthetic was tight clothes, and miniskirts, and Ann Coulter wearing, kind of, the, um, uh, form-fitting dresses. And it was about owning their sexuality, and owning their physicality, and using that as part of their provocation, that they weren't just being provocative in terms of being outrageous, but they were being provocative in terms of being overtly sexual, and showing more of their bodies. So I think that there's also just a wide variety.
[00:57:52] NEIL YOUNG - CO-HOST, PAST PRESENT: I do think that... I mean, yes, in terms of the groomer discourse, yes, a lot of this is just the way that American politics operates today, and, you know, internet provocations being political discourse, and, just, the... the ongoing coarsening of our political culture.
Um, so this word almost means nothing, because it's being overused so much. Right? And it's just the latest attack, um, that actually is becoming more and more disconnected from its actual meaning.
And, yet, it also does have a meaning that is historically rooted, and one that falls particularly hard on certain people, and it shapes our lives and existence.
So, for queer people, to see the re-emergence of grooming discourse is terrifying, because, yes, it's been central to the politics of homosexuality for the last 50 years, but it also went away for a good 20 years or so. And so its reemergence makes it all the more terrifying, because it's just another scary reminder of how progress and cultural change are never secure. They're never written in stone. It's always contingent and things can come back in backlash form with a vengeance.
And so I think it's worth us just pausing and recognizing the very violence of this discourse for so many of us right now.
[00:59:21] NICOLE HEMMER - CO-HOST, PAST PRESENT: And that it's not just discourse, right? We have heard conversations, especially in, um, you know, we know that Roe V. Wade is likely to be overturned, or effectively overturned, in just a few months.
Um, but conservatives have made it clear that they're coming after Obergefell, and marriage equality; they're coming after Lawrence-- and, uh, this is the 2003 Supreme Court ruling that said states could not outlaw sodomy, um, that people had a privacy right to... to same-sex sex; um, that they're coming after Griswold, which is based in a 1964, um, ruling based on, um, a right to privacy, that allows people to use birth control; um, that there is this, sort of... a willingness to try to wholesale dismantle the rights that queer people and women have fought for and scratched out over the past 50 to 60 years.
And, you know, it's... it's not just the cultural attack. It's a... it's a political and legal one as well.
Fundamental Rights Doublespeak Part 3 - Amicus With Dahlia Lithwick - Air Date 4-9-22
[01:00:26] DAHLIA LITHWICK - HOST, AMICUS: And can you talk for a minute?
Cause I think this was again in your piece. So illuminating for me that the slippage of starting to talk about fetal personhood and the idea that not only was abortion, not explicitly protected anywhere, you know, in the states at the time of the 14th amendment, but that. Is now this imported value of, you know, a fetus is a person and that somehow impliedly is something that should be protected.
I want you to talk for a minute, if you would about, you know, what your research shows about why it was that women's reproductive rights were so heavily regulated at the time of the 14th amendment. It's not because there was a belief that the fetus was a person it's that they were trying very, very hard to control women's bodies.
[01:01:24] DAVID GANS: If you look from the founding on, and if you look at the common law, which is often a source of wisdom to conservative justices on the court, but there are many cases where they say, let's see what the common law did. So the common law with respect to abortion was abortion. Wasn't a crime until the moment of quickening, which was the first time that a woman was feel the movement of the fetus and that.
Generally around 16 to 18 weeks, but it wasn't exactly, was it different when the individual woman actually felt movement? The common law said before that there's no precedent that makes abortion a crime. So abortion was legal throughout the first trimester through a good part of the second trimester until quickening, whenever it arose.
And if you look at the historical work on abortion, abortion was one of the first medical practices that was the subject of specialization and expertise. What happened in the middle of the 19th century was this shift. That was this legislative campaign that was pushed by physicians and the physicians didn't like the quickening line.
They sought to ban abortion throughout pregnancy, but the arguments, whereabouts controlling women, the idea that was also very popular with the Supreme court of the time that it was. Women's God-given duty to bear and raise children. They viewed abortion as destructive to a women's health, and they were not concerned about all women.
They were mostly concerned about white women who are not having children while immigrant populations were exploding. And so you look at 1867, which I cited in the piece. There's an Ohio committee, that's considering an abortion ban. They say the question of abortion is whether the population will be our children or those available.
And so in the last part of the paper, I looked at this history and I take a look at fetal personhood because one of the big arguments driving the cases, the idea that the interest of the fetus has to be dominant and. So there are some who think the fetus should be considered a person under the constitution and have rights of its own row rejected that.
And no justices question that during the Dobbs argument, justice Kavanaugh asked Mississippi's attorney general about that. He said we don't take that position. And then I think what you see when the 14th amendment says, who are citizens, it's persons who were born or naturalized, there are a number of provisions that would make little sense if they applied to fetus.
So when we take the census, we don't take a head count of fetuses at the time. They're not treated as persons in that way. The view that they should be persons under the 14th amendment has no takers on the court. Not even Mississippi would go that far. And I think this is important because justice Cavenaugh sort of said, well, we have to be neutral.
And on one side you have the pregnant person who has fully entitled to Liberty and equal censorship. On the other side, everyone in DOB screens. The fetus is not a person in the contemplation of the constitution. And so then I looked, even if it's not a person, should it be considered a compelling state interest and what the history shows is?
From the founding through the mid 19th century, it wasn't viewed as a compelling state interest. And when states moved to ban abortions, it was based on these gendered and racist views that said it was a woman's duty to give birth. And anything that interfered with that would bring the ruin on the nation.
And that's not the stuff that compelling state interests are made of. So I think if you look at sort of the history of abortion regulation, it really undercuts the idea that you can say that there's a compelling state interest that allows the say to completely extinguish the fundamental rights that the 14th amendment protect and the linked grade Walter Dellinger wrote this piece in the late eighties that I relied on, where he said, you know, could a state say, well, pregnant women have to be on bed rest the last three months because they might miscarry and we would lose life.
And if you take the view that it's a compelling state interest, you're sort of forced to this idea that the capacity. Become pregnant means that we have two tiers of citizenship, which is exactly what the 14th amendment this
[01:05:47] DAHLIA LITHWICK - HOST, AMICUS: allows. So I just want to be super, super clear about what you're saying, because I think it's important.
And I think it really didn't get said, or I didn't hear it. David, at judge Jackson's hearings, which is really the only way to look at the 14th amendment is. Constructing a new notion of freedom, post chattel, slavery that defines anything that is a part of chattel, slavery as fundamentally unfree. And so the whole notion that we determine for slaves, who they reproduce with and how they reproduce and whether they can marry and how many children they have, all of that is by definition.
Unfreedom. All of that is by definition ignored in the bill of rights and that you are starting from the presumption that if you don't look at that bucket of freedoms, what you call home and heart, the ability to make your own decisions about. What you do with your body, how you raise your children, who you marry, how many children you have, if you don't look at that as a direct response to chattel slavery, you're missing the point of the 14th amendment.
And I think that the only other kind of Coda. Let you talk about for a second is, you know, as it felt like Senate Democrats were seeding all this ground of what you've mentioned, privileges and immunities gone substantive due process on the ropes to seed the ground of substantive due process and a numerated rates and privacy and family autonomy and bodily autonomy is to say, that's okay.
We still have the equal protection clause. We have the equal protection clause. So we're going to be okay. And I want you to just maybe if, if you can take us out on the answer to the question, maybe it doesn't matter. Maybe we don't need all these, uh, privacy rights and Liberty rights and, uh, bodily autonomy rights and family rights because we have equal protection and that is going to protect all the other rights that are protected under the auspices of Griswold and Roe.
What's the answer to
[01:07:59] DAVID GANS: that? I mean, to one, I do think when the attack that we're seeing. On and off the court on recognition of basic fundamental rights that are not enumerated in the four corners of the document, misses a key part of what the 14th amendment is all about. These elements of bondage, of what it meant not to be free were central to the abolitionist critique that changed the constitution.
And you can draw the line to the abolitionist movement to the 13th amendment before men, all these places they're arguing about these rights of hardened home. So what I think you're seeing a lot is kind of a selective originalism that is ignoring huge swaths of the 14th amendment. And these rights are directly provided.
They're clearly rooted in the history and context and responding to the abuses of slavery. We've talked a little bit less about bodily integrity, but slavery was sort of the total abnegation of bodily integrity and to guarantee free. Without guaranteeing Bali integrity would have been illusory. That is the very core, the right to the body was there before, but it really comes out of the experience of the violence against black bodies during slavery.
And then afterwards, the genius of the 14th amendment is it's overlapping guarantees all in the aim of equal citizenship, procedural fairness. When you're paled before the state guarantees a fundamental rights guarantees of equality under the law, the equal protection clause is an incredibly important part of the 14th amendment, but even there conservatives take a very narrow view of what equality means.
Although the language is sweeping and universal in it. Karen T's equal protection for all persons. The track record there is also from. You can look at the dissent in the DOMA case in Oberg EFL, even in cases like, uh, us versus Virginia, the conservative view, which is deeply wrong on equal protection is that it's about race and nothing else.
If it's not classifying based on race, then I affirmative action. Then states have latitude to treat people differently, even for deeply problematic, discriminatory, prejudicial reasons. The history of the 14th amendment sort of shows stripping out its core components. Can't be justified simply because there are other guarantees left.
They're all kind of crucial to equal citizenship. So I think it would be very dangerous to say, well, we're not so concerned about the court watering down the promise of freedom at the core of the 14th amendment, because there's still a quality left when the justice on the Supreme court have been reticent of.
Reading the text of the protection clause to in fact, protect equality under the law for all persons.
Final comments on the upcoming milestone for the show
[01:11:03] JAY TOMLINSON - HOST, BEST OF THE LEFT: We've just heard clips today, starting with:
Democracy, Now! discussing how the questioning of Judge Jackson telegraphed the anti privacy legislative strategy headed for the Supreme Court;
The Thom Hartmann Program highlighted Marsha Blackburn taking aim at privacy as well;
Amicus spoke with David Ganz, who broke down various constitutional amendments and the importance of un-innumerated rights;
Democracy, Now! drew parallels between the current rash of oppressive laws and the eras of slavery and Jim Crow;
The Bradcast spoke with Mark Joseph Stern about how conservatives are attempting to have it both ways on privacy arguments; and
Amicus discussed the defining of fundamental rights.
That's what everyone heard, but members also heard bonus clips from:
All In with Chris Hayes, which highlighted the case of the GOP Tennessee state legislature working on a marriage bill that would, incidentally? accidentally? legalize child brides, all while accusing Democrats of pedophilia; then
Past Present reframed anti-abortion, anti-marriage equality laws through the lens of reinforcing the conservative conception of patriarchy; and
Amicus discussed the idea of fetal personhood through the lens of the history of controlling women's bodies.
To hear that, and have all of our bonus contents delivered seamlessly into your new members-only podcast feed that you will receive, sign up to support the show at bestoftheleft.com/support, or request a financial hardship membership, because we don't make a lack of funds a barrier to hearing more information. Every request is granted, no questions asked.
And now, I just want to wrap up with a quick reminder, and then a quick announcement.
First, the reminder is that I've been putting out a call for general recommendations of interesting stuff that you've been seeing or hearing in pretty much any medium: podcast, episodes, videos, documentaries, books, whatever; I want to know about it. If you're a member of the show and are in our Discord community, you can add your recommendations there directly, and see what others have been suggesting as well. But for everyone else, please feel free to tweet at us, or email me your recommendations, and they will go in the pot.
The whole idea is that the more of these sorts of recommendations that get tossed around, the more interesting ideas begin to formulate, and those can translate into interesting discussions, or interesting show topics. So, that seems like a win-win-win all the way around. You can be a part of interesting conversations that are happening, or just be the beneficiary of interesting podcast episodes.
Next up, this is, sort of, an announcement, but, uh, well, you'll see. So, episode 1500 is quickly bearing down on us. Should be coming out in a couple of months or so. And it would basically be podcast malpractice to not make a big deal out of that. And so, I have a tentative idea of what I may do on that episode. Of course, I'm open to other ideas, if someone has a better... better thought. But the tentative idea is to make, sort of a, "I've been at this for more than 15 years, and now 1500 episodes, what have I learned?"
And to try to do, sort of, a whole show on really major, big ideas, sort of, foundational, tent-pole lessons that have really stuck out over the last couple of decades.
And so, of course, you know, ever since yesterday, when I had this idea, I've been making a, sort of, growing list of these kinds of ideas that I would want to formulate into an episode; but I'm also putting the question out to you. If you have things that you have learned, big thoughts that you have had, you know, as you look back on the last 10 to 20 years of American politics, you know, what sticks out to you as a foundational lesson, like, something you really need to know to understand politics, as you see it.
And don't be shy. You don't want your comments to be played on the show, then just mentioned that in your email or voicemail, and don't hesitate because you think that the idea you would put forward is too common. You know, "Well, someone else will already say that, I won't need to say that." No, no, no. Go... go ahead and toss that in. That'll be interesting too, because if lots of people end up saying the same thing, then that gives it more weight, particularly if it's something I might not have come up with myself.
So, if you have any big ideas, big lessons learned from past couple of decades, or, you know, I mean, for... for us old timers, yeah, you could have learned an important lesson more than two decades ago, and it still holds true, so all the more important. It's just for me, I probably would have only learned it in the last couple of decades.
So, if you have any thoughts on anything like that, please send them in. As always you can leave comments at 202 999 3991, or send an email to me at [email protected], or, honestly, if you have a better idea of what I should do with a 1500th episode, let me know that, too, because I'm flexible. I'm open to ideas.
Now, that is going to be it for today. Thanks to everyone for listening.
Thanks to Deon Clark and Erin Clayton for their research work for the show and participation in our bonus episodes.
Thanks to the Monosyllabic Transcriptionist Trio, Ben, Ken, and Scott, for their volunteer work, helping put our transcripts together.
Thanks to Amanda Hoffman for all of her work on our social media outlets, activism segments, graphic designing, web mastering, and bonus show co-hosting.
And thanks to those who support the show by becoming a member or purchasing gift memberships at bestoftheleft.com/support, through our Patreon page, or from right inside the Apple podcast app. Membership is how you get instant access to our incredibly good bonus episodes, in addition to there being extra content and no ads in all of our regular episodes, all through your regular podcast player.
So, coming to you from far outside, the conventional wisdom of Washington, DC, my name is Jay, and this has been the Best of left podcasts coming to you twice weekly, thanks entirely to the members and donors to the show from bestoftheleft.com
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