BUCK: John in Cynthiana, Kentucky. I hope I got that right.
CALLER: Close enough.
BUCK: How do you say it?
CALLER: Cynthiana, Kentucky.
BUCK: That’s what I said!
CLAY: Yeah. You got it right.
BUCK: Fair enough. Anyway, what’s on your mind, John?
CALLER: Well, you know, there’s laws against certain things in different states. Like, if you transport cigarettes from one state to another, to New York and you don’t have a stamp on it it’s illegal, you can get arrested, blah, blah, blah. So what happens when a woman, in the Interstate Commerce Clause, lives in Texas or Georgia or someplace — and I’m actually on the side of putting it in the 50 test tubes, okay?
But what happens when they live in a state that doesn’t offer Planned Parenthood facilities and abortions-at-will and all the other things that they’re getting; so will Planned Parenthood transport them to a state that gives it to ’em and then they go back home? Are they going to be able to be charged under the law in which they reside based upon getting an abortion out of a state that allows it because of the Interstate Commerce Clause?
CLAY: No. Yeah. It’s an interesting question. The answer is no. And let me give you an example taking it completely outside of abortion. I’m an expert, probably, Buck, in sports gambling to the extent that I’m an expert in anything. I’m taking it completely outside of medical treatment, right? In sports gambling, you can go to a state that allows sports gambling and gamble on any sport there even if you cross a state line for purposes of gambling because that state law governs while you are there.
Similarly if — let’s say we were talking earlier — every state has a different rule when it comes to beer and liquor, right? You might drive across a state line and go to a grocery store because they have better hours or better products that you can buy there more affordably, you can bring them back to where you are. That state law would govern. Anyway, so you can get, for instance, in a…
BUCK: All right. Marty in Phoenix, Arizona. What’s up, Marty?
CALLER: Hey, I just wanted to give you a quick legal analysis of a case that was decided by the U.S. Supreme Court — actually not decided but they issued an opinion. A federal judge died in the Ninth Circuit before an opinion was released. They ruled and wrote an opinion that if a federal judge or justice dies before an opinion is released, they can’t participate.
So in the case of a Supreme Court case, a 5-4 decision would be 4-4. But it actually went a little further and said the opinion doesn’t count at all, it actually has to go back for rehearing, basically with the new justice appointed to hear the case all over again. So another reason to hold your breath until June, is God forbid, something might happen to one of the justices.
BUCK: Thank you, Marty.
CLAY: Again, I can’t speak to the specifics of that, I haven’t looked it up, but this opinion as soon as it got leaked my immediate thought is that has to come out now. They can’t hold it for weeks.
BUCK: Have you heard…? The only thing that I’ve seen was when John Roberts put out the memo, the chief justice, indicated that he didn’t want any of the court’s proceedings to change as a result of the leak. But I feel that’s denying the reality of what the leak has done, right? So I think that greater… If you’re trying to protect the process, the way to protect the process is not to say, “We’re just going to act like this leak didn’t happen and wait until June.” It’s, “Okay. This is — we had five votes, we know that’s where it is, the votes come down now.”
CLAY: If you care about the legitimacy of the court, which seems to be a particular focus of John Roberts, then the opinion needs to come out sooner than later because you are creating — by that leak, you are creating — the potential incentive for violence on a scale that has not existed in most of our lives. And people say, “Well, there have been Supreme Court leaks before.”
Usually those come out after a case. Like we find out, “Oh, this was the initial vote, and then this justice changed their opinion.” Clerks talk, right? They tell stories in retrospect about the decisions. In my life I don’t recall — certainly not in my life as a lawyer and certainly not in my life as a student — that hasn’t happened. I don’t think in my life, we’ve ever had a leak like this, and I’m over 40.
BUCK: This is sabotage.
CLAY: Yes.
CALLER: Hey, I wanted to talk about a story that’s out there but no one’s saying anything. Tim Ryan, the Democrat, he got 72% of the vote in the Democratic primaries, an old white guy. He beat out two women of color,;they got 11 and 12%. And there’s no other reason other than racist white supremacy, and I want to know why 72% of the Democrats in Ohio are such racist white supremacists.
CLAY: (laughing) Hey, I mean, that’s a question you can ask about their choice of Joe Biden, right? They kicked Kamala Harris to the curb before votes were even taken. Despite the fact that she’s a black woman, they didn’t vote for her. I mean, look… But now, this is why I think Kamala may have a decent chance as being the nominee because her entire campaign, Buck, if Biden were deciding not to run — her entire campaign — would be as the sitting vice president, it is racist and sexist of the Democratic Party if I’m not the nominee.
BUCK: But that assumes, Clay, that the Democrat Party feels like it has to be consistent and principled in any way based on what it has previously said, and I would just connect that, because you’re right of course, right? The Democrats would — based on their ideology, it’s incredibly racist and sexist if they don’t have the sitting vice president elevated to the next president. But remember, we’re hearing all this talk about women and women’s rights. And I’m sorry. It’s birthing people’s rights, libs!
CLAY: (laughing) We don’t even know what a woman is.
BUCK: Why are we having the Democrats, why is Elizabeth Warren shrieking about how people who menstruate or having their rights taken away? You’ll notice that when it serves their political needs, the language, the argument changes very quickly. They’re being unfair to all the people who menstruate that they’ve been talking about.
CLAY: Not very inclusive. All those bearded men with pregnant stomachs? I mean, are they not thinking about them at all?
BUCK: You making a… Did you see the Bill Gates emoji?
CLAY: It is a Bill Gates.
BUCK: Elon put out that joke, and that joke is now there.
CLAY: Well, that’s an emoji now.
BUCK: Oh, it’s an emoji.
CLAY: The pregnant person emoji.
BUCK: The pregnant person emoji and Bill Gates, there was a similarity that —
CLAY: Separated at birth.
BUCK: — did kind of note for everybody.
BREAK TRANSCRIPT
CLAY: Let me get a couple of calls here, actually. Texas State Rep. Steve Toth, I believe, here — Toth — is with us. And you’re calling in about the crossing state lines question that we got earlier?
REP. TOTH: Yes. So while obviously, yes, a woman wouldn’t be prosecuted, under Texas law 4512, we are going to prosecute anyone that aids and abets someone crossing state lines to have an abortion ’cause that is current law in the state of Texas. Roe never did away with that.
CLAY: Has anyone ever been prosecuted? I’m just curious. Has anyone ever been prosecuted under this law?
REP. TOTH: No because no one’s ever brought a case. But now that en masse… Because in the past you didn’t have to cross state lines, right? A woman just had to get into her car and drive to an abortion clinic in the state of Texas. So there wouldn’t be any means under which or cause for this to happen. But now you’ve got Lyft, AT&T, Amazon, and all these different companies that want to aid and abet women having an abortion.
Well, we’re going after it. Now, we spent a hundred million dollars offering alternatives to abortion in the state of Texas last year, and we’re very committed to increasing that fund to make sure that we take care of any woman that needs an alternative to an abortion, even though it’s illegal now in the state of Texas.
CLAY: Thanks for the call, by the way. We gotta go to break. I’ll mention this a little bit when we come back. I think that would be a tough legal row to hoe, personally speaking based on my analysis, and I don’t think it would necessarily fly.
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