Justice Department Sues Idaho Over Abortion Law

Sarah and David have a lot to talk about as the midterm primaries wrap up ...

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Sarah and David have a lot to talk about as the midterm primaries wrap up and federal lawsuits are filed stateside. What is former President Trump’s role in the midterm elections, or does he even have one? Also on the agenda: near-total abortion bans and pro-life amendments face a difficult path in Idaho and Kansas, and Justice Samuel Alito goes to Rome.

Show Notes:

–The Sweep: What We Learned

–Blake Masters campaign ad

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  1. Tommy

    Will AO tackle Mickelson v PGA TOUR?

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  2. Paul Homchick

    Please explain defamation law and the Alex Jones verdict. Isn’t defamation supposed to be tied to some economic harm? How did Alex Jones’ lies harm the two parents? How is it worth $45 million? It makes no sense.

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  3. Frederick F

    I'm going through Revolutions podcast, too. Just finishing Season 5. Enjoy, David; it's good stuff. Duncan's other podcast, The History of Rome, is also wonderful—I followed it up with Mike Duncan's podcasting inspiration Lars Brownworth's 12 Byzantine Rulers and then his Norman Centuries.

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  4. William Brady

    Regarding the Idaho law and lawsuit by Biden’s DOJ, with all due respect to David and Sarah, their characterization of the former’s law is entirely wrong.

    Idaho’s law takes the position, consistent with that of pro-life laws across the country, that the termination of an ectopic pregnancy is not an abortion within the meaning of the law. That would be consistent with how abortion is defined elsewhere in Idaho law. For example, the definition of abortion in Idaho’s ban on public funding for abortion states that it “is not an abortion if done with the intent to save the life or preserve the health of the unborn child, remove a dead unborn child caused by spontaneous abortion, or remove an ectopic pregnancy.” Idaho’s law regulating chemical “abortifacients” likewise states that “nothing in the definition shall apply when used to treat ectopic pregnancy.”

    For more info on why the lawsuit is utterly dubious on the merits, I recommend reading through this piece detailing the matter here: https://www.nationalreview.com/2022/08/garlands-justice-department-joins-bogus-legal-assault-on-pro-life-laws/

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    Jacob

    The original Fifth Amendment as proposed by Madison was to be the following: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,”

    Noticeably, Madison collapsed the Freedom of Speech and Free Exercise into a single promise of conscience. Alito's distinction between religious freedom and other forms of conscience seems weak, given that Madison himself sort of conflated the two. It's also noteworthy that Madison's proposal seems much less protective of conduct, exercise, and expression than the First Amendment whose guarantees extend to such things in a way the failed Fifth Amendment did not.

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    Jacob

    If the failure to include a life exception wouldn't get past rational basis review (per Rehnquist and Kavanaugh) how does a ban on ectopic pregnancies pass muster?

    It also seems like the nonoccurrence of exceptions to a general proscription of abortion necessarily have to be construed as elements to be proved by the prosecution, rather than affirmative defenses to be proved by the doctor, if we're going off of basic procedural due process guarantees.

    Any statute which provides insufficient guidance to doctors should be struck down as being void for vagueness.

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    Doug Herbert

    I took Sarah's advice and actually read the Court's decision in Fleites v. MindGeek and I read the docket entries on the case in Justicia. A few things jumped out for me from reading that opinion.

    First, there are no findings of fact by the judge. The ruling is on a motion to dismiss and no answers have been filed in the case. Under Rule 12(b)(6), as every litigator knows, the well pleaded facts in the complaint must be accepted solely for purposes of the motion. But that is only for purposes of the motion. One cannot point to this decision as making any kind of findings with respect to the extent to which child porn or non-consensually posted porn ever was on Pornhub in the past (much less with respect to how prevalent such materials might be in the present).

    Second, it is critical to the Court's decision concerning Visa that there is an express allegation that Visa KNEW there was extensive child porn on Pornhub. But both allegations (that there was extensive child porn and that Visa knew of such materials) are phrased in very conclusory terms. To me, both propositions seem wildly unlikely, given the nearly unanimous public revulsion against child porn, but we'll see what discovery turns up in the case.

    Third, the judge placed great weight on the allegation that Pornhub took down all unverified videos due to pressure from Visa. That allegation seems perfectly plausible to me (if not yet proven), though the publicity from the Nicholas Kristof opinion piece in the Times almost certainly played a huge role as well. But I don't understand how relying on this fact is consistent with Rule 407 of the Federal Rules of Evidence, which does not allow evidence of subsequent remedial measures to be used as evidence of "culpable conduct."

    That rule reads in full:

    "When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

    - negligence;
    - culpable conduct;
    - a defect in a product or its design; or
    - a need for a warning or instruction.

    But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures."

    I'd be interested in any contrary arguments, but to me it seems clear that removing unverified videos would have made the alleged injury in this case less likely to occur. Thus, it seems to me clearly not admissible under Rule 407.

    By the way, I've now posted on this several times, so I should make clear that I have nothing to do with this case. I am a retired employment law and have never represented any of the parties to the litigation.

    But I am a dedicated supporter of free speech and the news today that Visa has now demonetized MindGeek is very sad, because it appears to have resulted from a wave of unfair articles (including David's) that don't make clear that there have been zero factual findings at this stage of the case.

    It feels like a witch hunt.

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    Bethfreitag

    Regarding David's question on corporate activism, I think there is a difference between viewpoint discrimination and participating in a criminal business. I think it is entirely consistent to say that you don't want corporations to cut people/businesses/states out of the economy for mainstream (or kooky) political views AND that corporations can refuse to do business with people/businesses that are purposefully facilitating crime.

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  9. Paula Weber

    A comment perpendicular to the substance of the podcast:
    I have been wanting to ask this question for quite a while, but there is no good avenue... However, after David and Sarah said that they like Arrested Development, well, i am not throwin away my shot! David and Sarah, what character from Arrested Development do you see being most similar to former president Trump. My answer is Gob.

    1) Lucille: (referring to Gob) Let's make sure he doesn't get any real power...


    2) Gob: I run a pretty tight ship around here
    Michael: with a pool table?
    Gob: its a gaming ship.

    3) Lucille: why dont you stay with that Mexican woman?
    Gob: She's MY Mexican mother! And she's Guatemalan or something.

    And so many others. Such a fun/funny show. Please, please tell me I'm right or wrong and give a better answer! Id also want to ask Jonah and Steve, but Steve most likely hasn't heard of it.

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    Matt Sherman

    Lighter comment fare, but great shout out to Revolutions. It is an excellent podcast & folks should definitely check it out if they haven't already.

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