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Richard Helppie
Hello, welcome to The Common Bridge. I'm your host Rich Helppie, and today we've got with us Professor Anthony Colangelo from Southern Methodist University. You're going to remember him from a couple of past episodes, and we're going to build on one of those topics, and that concerns abortion rights and abortion law. Time permitting, we're going to dip into the Ukraine a little bit. Professor, it's really good to see you. Thanks so much for coming on The Common Bridge today.
Professor Anthony Colangelo
Thank you so much for having me.
Richard Helppie
The Common Bridge, of course, is available free on most podcast outlets, including Amazon, Apple, Spotify, and Buzzsprout. You'll find us on YouTube TV, you'll find us at Mission Control Radio on your Radio Garden app. But most importantly, please consider joining The Common Bridge on substack.com; we've got lots of content for you, there are lots of ways to interact. For over 50 years the law of the land established by the Supreme Court in a decision known as Roe vs. Wade superseded state laws regarding abortion. And during this time, women have come to expect access to abortion services, while those opposed have continued to favor denial of such access. There's been a lot of controversy; this is not a right wing/left wing issue necessarily. It's being portrayed that way. But many distinguished jurists from all across the political spectrum have written about the flawed logic behind Roe vs Wade - including Justice Ginsburg - and I encourage all my listeners and readers and viewers to look that up as well. Again, at the outset of this episode, I want to be clear that we do not expect to solve the abortion debate, nor frankly as men, do we have the understanding necessary to opine knowledgeably about the topic itself but we're going to talk about court cases, we're going to talk about how the laws have been worked in certain states, and what might happen in the event that Roe vs. Wade is overturned. Returning to The Common Bridge, Professor Anthony Colangelo. He is the Robert G. Storey Distinguished Faculty Fellow and professor of law at Southern Methodist University. He was with us on episode 138 back in January, where we talked about the new Texas abortion law that basically deputized non-participants in preventing abortion and - cleverly or diabolically, no matter how you want to look at it - evading judicial review. And again, Professor Coloangelo was with us on February 6, episode 140, discussing the legalities of our interventions in the Ukraine. So today we're going to talk about the recent leak of Supreme Court Justice Samuel Alito's draft opinion, what it all means, and if we have time, perhaps talk about the evolving situation in the Ukraine. Professor, your bio will be on our website and substack.com but do you mind just a quick thumbnail to refresh our listenership and viewership and readership about your time at Columbia and the places you've taught prior to coming to SMU and then what you're doing at SMU?
Professor Anthony Colangelo
Sure. In terms of my time at Columbia, I had gotten a JD from Northwestern, graduated top of my class, there I was the notes editor for The Law Review, took a research and teaching fellowship at Columbia after I clerked on the Second Circuit Court of Appeals, which actually goes to something you had mentioned about the draft opinion. I can talk a little bit about how opinions are hammered out behind the scenes because I had that experience on the Second Circuit Court of Appeals, which is a three judge panel covering New York, Connecticut and Vermont. At Columbia I got my master's and PhD, taught a couple of courses there and then moved down to SMU, where I presently teach - among other things - international law, something called conflicts of law, which is also termed private international law. And this topic obviously deals with that, an area of expertise of mine since I've been in academia in what is called extra-territorial jurisdiction, and that is implicated precisely in these cases. It's a scary word "extra-territorial" jurisdiction. When people ask me what I write, I say that their eyes kind of glaze over and I'm like, no, no, no, it's not really that bad. It's just extra like "ET" extra[terrestrial] (Rich Helppie: Right!] outside the territory of the jurisdiction; so the projection of state power outside of the territorial jurisdiction.
Richard Helppie
The long arm of the law. So I think a fascinating place to start would be about the Supreme Court process. Because, look, I know as a layperson, I said, is this leaked document, is this necessarily the final ruling by the court? Because my understanding - I had to do some reading on this - is that the process is one that every justice writes a draft opinion, then they circulate them, then they meet to discuss them, and then they begin to rewrite. And ultimately, we get a majority opinion, a minority opinion, we get concurrences we get dissents for public review. This document that was leaked, what do we know about it? Where is it in the process? And I know a lot of people are treating it as final and such. How close to final is it really?
Professor Anthony Colangelo
I would say - and this is purely speculative - I would say not very; the opinion writing process is very iterative. Typically what will happen is an opinion will get assigned and where you have a majority of justices, one justice will write that majority opinion with the input of other justices. Now, let me back up and say this is based on my experience clerking. So what would happen in our chambers is after oral argument the judges would meet, and the majority opinion would be assigned, that opinion would be drafted and then circulated for review for other judges on the Court of Appeals to give their input. And if a judge disagreed with that majority opinion, that judge would write a dissent. There's also the possibility of a concurrence. And what a concurrence is, is I agree with the outcome, but I don't agree with the reason so I'm going to concur in the judgment in the final outcome, but I'm not going to concur in the reasoning of the court. And this is very important, because the reasoning is what's going to provide the precedent. So if you have a case that is four-five in favor of the plaintiff,`going forward that fifth vote, if it's a concurrence, you basically have - as far as the reasoning goes - a four-four split; you can see why that's very important.
Richard Helppie
Yes, I can see where that would come back. And we, of course, had the typical alarmists in the public square; the so called legal analysts that we see populating every electronic media, we've had legal scholars. We're in an era right now where these very same people just dispute the findings of criminal courts so I suppose that their partisan alarm isn't a surprise. We're seeing this division running rampant every day and then, of course, coming with that, wild extrapolations of what comes next. I'm waiting for the editorial - and I don't think I'm going to have to wait very long - that blames Justice Alito's draft opinion as causing all climate change. I'm pretty sure it's coming. But it does sound like we're a long way away from what the court may ultimately rule and I'm one [to say] let's take time, let's get the facts out. But just to speculate a little bit, suppose Roe vs Wade is reversed and [the Supreme Court] said the prior courts got this wrong. Is it as simple as the abortion matters are going back to the states? And do the states typically have jurisdiction over medical interventions? What can we expect if it is reversed?
Professor Anthony Colangelo
This raises the confounding question of whether states can regulate abortions that take place outside their borders. So you're a Texas woman and you travel to California, can Texas purport to regulate your activity? Here comes the word again, extra-territorially, unlike some of the other podcasts we've done together, I'm here to say, I don't really know. This is something that would be very novel; it is an area of conflict of laws - which is a specialty of mine - and constitutional law as it relates to conflict of laws, which would bring it in the fold of the area. And I can talk a little bit about those fields.
Richard Helppie
Let me ask this from a lay perspective, is the law binding on the behavior inside the geography or is it binding on the citizen? For example, if a person is in New York, and they could not carry a concealed firearm because of the laws in New York, but they traveled to Vermont or Pennsylvania, where it was perfectly legal for them to carry, that the state of New York can't prosecute that New York citizen for being inside the law of Vermont or Pennsylvania, could they?
Professor Anthony Colangelo
Well, that's the question.
Richard Helppie
That doesn't seem right. It's like, (Professor Colangelo: It doesn't, does it?) if I don't want to be living in a place that has those laws, it seems I should be able to go to a place [that doesn't]. And I guess a sidebar; is that despite one's feeling about the act of abortion and such, it does fall disproportionately on those without resources that wouldn't be able to travel to another state, given the great cost and inconvenience and time element involved. And so I think there's great validity to that social aspect of this argument. But can a state pursue a citizen outside of their own boundaries for exercising a right that's perfectly legal in the place where they're exercising that right, or that privilege, whichever way it goes.
Professor Anthony Colangelo
That's the question, right? And the answer is, to some extent, yes, states can regulate the activity of their citizens or residents when those residents act outside the territorial limits of the state. The thing becomes complicated where you're talking about the hypothetical you brought up, where you have overlapping, conflicting laws. So I'll talk about the bases of jurisdiction. (Rich Helppie: Yes, please.) So we have a precedent from the middle of the last century where a Florida guy goes spun fishing off the coast of Florida, outside the territorial waters waters of Florida and he's prosecuted. He says, hey, wait a minute, I wasn't in the territorial waters of Florida, I was outside Florida's jurisdiction. And the Supreme Court said, well, you're a Florida resident and Florida has the same right to prosecute you as the United States would have the same right to prosecute citizens of the United States who travel abroad. And of course, we prosecute citizens all the time for extra-territorial jurisdiction offenses. What we don't have, in the Florida scenario, is we don't have him acting in the territory of another sovereign state within the several state and so that's the confounding variable here. But it is true that states can regulate the activity of their citizens inside the territory of another state where that activity conflicts with the laws of another state. So to use a very simple conflict of laws analysis, if you and I take a road trip to Oklahoma, Texas has what's called a "guest statute", which means you're my guest and you can't sue me; and we go into Oklahoma, we get into an accident. Then the question is which law applies: the Oklahoma law that doesn't have a guest statute or the Texas law that does have a guest statute?
And courts are uniform in saying that the Texas law applies because Texas has a closer relationship with you and me than Oklahoma. So in the field of conflict of laws, this is not unusual. The criminal law is more conservative when it comes to...and I mention the common law, because a lot of these lawsuits are civil; they're not criminal and so we've got to think about different paradigms of law here. We've got the conflict of laws analysis and we've got the criminal law analysis. And the criminal law analysis also says you can regulate, extra-territorially, the conduct of your residents. The conflict of laws analysis, again, more flexible. On a criminal law side, residents - if the activity has an effect on the regulating state, even if it's extra-territorial activity - we also would say, in the criminal law, well, if part of the activity occurs in Texas (again we'll use Texas) then we can regulate, so maybe part of the criminal activity is traveling to California, or wherever.
Richard Helppie
I'm beginning to grasp this really esoteric and unique part of the law. It's something I didn't give much thought to and I don't think most people have, so let me play that back. One potential scenario, presuming Roe vs Wade is struck down, we go into a patchwork of state laws. A young woman is impregnated - just to keep it simple let's just say it's consensual, keep the extraneous cases out of this for the moment - and decides to go to a state where abortion is perfectly legal, has a procedure, comes home and the father of the child says, I never wanted that to happen and says he wants to engage in a criminal prosecution. Would that be the kind of scenario that might lead a state to enforce a law like that on something that didn't even happen in their own boundaries?
Professor Anthony Colangelo
All that individual would need to do would be to bring the abortion to the attention of the authorities and the authorities certainly wouldn't have to depend on someone like the father or the brother or the boyfriend to go forward. I mean, knowledge that this woman crossed state borders and got an abortion would be sufficient.
Richard Helppie
What if she never came back? Would they be able to extradite her?
Professor Anthony Colangelo
Ah, now that is a really interesting question. Because some states are already talking about what they can do to protect women who come and get abortions. Typically there are laws that mandate extradition. So if she goes to California, there'll be a law in place that says, California you have to extradite back to Texas. But one of the things that protective states of abortion are saying we're going to do is we're going to refuse to extradite. So trying to insulate from liability, those who go abroad to get abortions. But that is a really interesting question. So what they're also speaking of doing is, we're not going to provide discovery, we're not going to provide witnesses, we're going to make sure our medical boards don't record this for purposes of malpractice, all sorts of things that are going to protect abortion provider.
Richard Helppie
So this almost calls out the need for us to have a national standard. Roe vs Wade is the national standard, and depending on what the Supreme Court ultimately does it'll continue to be the standard or it will be replaced by something else. I think the oversimplified reporting that we've been getting about hey, no worries, it'll just go back to the states. That's really the tip of the iceberg.
Professor Anthony Colangelo
As I said, this is something that, because there's a dearth of jurisprudence here, we don't have a lot of clear answers. I think from a conflict of - as I said, this is sort of the intersection of a number of fields of law - from a conflict of laws perspective - my conflict of laws perspective - let me be clear about that. I think when you go into a state and obey their laws, that are motivated by deep seated moral, cultural and political tenets, territoriality wins. There's a couple of arguments against residency; one is in a civil suit, the court needs to apply the same law to both parties. So it can't be that the law by State A to the plaintiff, and State B to the defendant. The other thing about residency is there's a Full Faith and Credit Clause argument here about reciprocity. And Full Faith and Credit, in the Constitution, I'm just going to read it for you: "Full faith and credit shall be given in each state, the public acts records, and judicial proceedings of every other state. And the Congress may, by General Laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Basically, Texas would have to give full faith and credit to California if Texas deems that Full Faith and Credit Clause argument not to be strong enough to prohibit Texas residents from getting abortions in California, then Texas must...let me put it this way. If Texas says okay, we can reach inside of you California, then Texas has to be willing to say well then California law can reach inside Texas and we have to provide abortions under California law. I mean, that's a bizarre outcome.
Richard Helppie
It is beyond bizarre and I think about simpler things like different drinking ages: you crossed this line you can have a beer, you go back over that line you can't. Firearms, as we saw in the Kenosha case, couldn't have that firearm in Illinois; 20 miles away in Wisconsin, no problem, you can have it.
These kinds of laws are more complex, but I like the phrase that you said; territoriality is typically the governing factor and what you do in the confines of the state of Texas, what you do in the confines of state of California, New York, Michigan, whatever, they can be different, and you'll be held accountable to laws of that state. Professor, before we move on to maybe a minute or two on the Ukraine, if you'd be willing to, anything else on this topic? This is just great food for thought.
Professor Anthony Colangelo
The only other thing that I'd mention are there do exist, although they're sort of vaguely defined at this point, potential constitutional limits on the extra-territorial application of the law within the United States. So I had mentioned already the Full Faith and Credit Clause, there is also something called the Dormant Commerce Clause. What the Dormant Commerce Clause says is states can't regulate commerce in a way that's going to frustrate it and create commercial gridlock, through extra-territorial regulation. And this may be an example of running afoul of that constitutional provision over that constitutional theory. I would say there's also something called the Privileges and Immunities Clause. I'm just reading these for your listeners so they know what the Constitution says. And so what the Constitution says in the Privileges and Immunities Clause, Article IV of the Constitution, is that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States". It's a quick step from that language to say, I go into California, I'm entitled to all the privileges and immunities of citizens in California. So these are the doctrines that people are invoking against the extra-territorial application of the law. The final thing is - this is a fascinating field - it's one that is very under-theorized and implicates, as you mentioned, virtually any area of law. Abortion is one example. Another example is the right to die, physician assisted suicide. I think that obviously, the abortion question is a massive question. But how the court decides or how courts decide, these questions are going to have implications far beyond the abortion question even.
Richard Helppie
What I appreciate about your willingness to talk with me and with our audience is your learned view, your ability to express what's in the Constitution, what's been in case law, the nuances, the conflicts. [All of] which is way better than the people that want to restrict abortions or eliminate it are causing great sunspot activity and meteors to fly closer to the earth, and those people that want to uphold a universal abortion rights at any stage of pregnancy are going to flood the planet or something; which is about what we're getting off of the political discourse, the talking heads, the fundraising, and the media, in general. Again, my continuing message to all those people is grow up. But to shift gears a little bit if we can, to the Ukraine. Now, if memory serves me correctly, intervention by NATO or the United States in Ukraine was legal and justified. And today, this is Victory Day in Moscow. Today, Russian President Vladimir Putin is threatening both the United States and NATO. He's positioning the invasion of Ukraine as Russia versus Western powers, particularly the United States. It's alleged that Russia is attacking civilians. What's changed since we talked this past winter, just a few months ago and what might come next, if you care to speculate.
Professor Anthony Colangelo
Obviously he invaded. And I argue that intervention on behalf of Ukraine by the United States would be perfectly legal; I maintain that position. I don't know whether it's just chest thumping or not, whether something is going to change in terms of his military strategy, if he's going to start actually targeting - with military hardware - the United States and NATO. I would be surprised to see that, although he's been very surprising. I think I could probably speak far more concretely in terms of killing civilians. Now, in any armed conflict, there's going to be some civilian suffering and death. That's what's called collateral damage. But there are rules of war that you have to obey to limit collateral damage in the Geneva Conventions, and that is discrimination in your target selection to reduce civilian death and suffering; a rule of proportionality, that you can only use weapons that achieve proportional military gain as opposed to a disproportionate one which would harm civilians. What those standards do is, if you fail to obey them it would result in criminal liability. Again, from what I've seen, I think it's a pretty clear case that Putin could be held criminally liable for violations of the laws of war. He can also be criminally liable for the Act of Aggression. The Act of Aggression is very clearly set out in Article 2(4) of the United Nations Charter, as prohibited under international law, that states that could prosecute him are obviously the Ukraine, because that's where the activity occurred. Russia actually has a law prohibiting aggression and violation of the laws of war should there be a regime change. The other doctrine that comes into play here is something called Universal Jurisdiction. Universal Jurisdiction gives every country in the world the right to prosecute the perpetrators of certain, especially serious, crimes under international law, like killing of civilians and aggressive war. So that would probably keep him from traveling for the rest of his life. The catch here is that while he's in office he's going to be immune from prosecution by the doctrine of Sovereign Immunity or Head of State Immunity. So heads of state are immune from prosecution while they're in office but once he leaves office, any state in the world can prosecute him.
Richard Helppie
I'm not an expert, but I've had a few on [the podcast] including (history) Professor Kauffman from Eastern Michigan University, and one of his summary statements was he doesn't think this conflict ends absent a regime change, either in Ukraine or in Russia. I'm trying to see how Mr. Putin can exit this and remain in office absent doing worse and more horrible things in Ukraine. I'm hopeful that this carnage will come to an end quickly. But I just wonder, who would go about prosecuting a guy like Vladimir Putin if it weren't Russians themselves? He's not going to give himself over to any other authority, particularly NATO, the United States, the European Union, or any other organization, the United Nations for that matter, he wouldn't do that.
Professor Anthony Colangelo
There's questions of could he be kidnapped? If he were kidnapped he could be prosecuted in another state. The reality is, though, this guy, he's just not going to leave Russia. It's one of those areas where you want international law to have more teeth.
Richard Helppie
I think that what the administration is doing is probably as as much as can be done under the circumstances. Look at how well the embargo on Cuba worked; it's still there, same government, Castro literally outlasted us. Professor, you've been so generous with your time, and we hope to have you back more, contributing on The Common Bridge; you are one of our more popular guests. Are there things that we didn't cover today, though, perhaps we should have discussed or any closing thoughts on either of these topics? This is just really wonderful to gain an understanding as you've been willing to provide.
Professor Anthony Colangelo
I would just say, it's been really wonderful on my part. We're talking about radically important questions, the answers to which are unclear. It's an honor to be with you and to share my thoughts.
Richard Helppie
Well, thank you for that. On this note, we want to thank our guest Professor Anthony Colangelo of Southern Methodist University. We've been talking about some of the most difficult issues of the day in terms of laws surrounding abortion, in terms of international law surrounding aggressive nations. Please, even if you don't agree with everything you hear on these episodes, please tune in for serious discussion about the issues of the day, the opportunities of the moment, and what the solutions might possibly be. Please join our discussion with The Common Bridge at substack.com. And with our guest, Professor Anthony Colangelo, this is your host, Rich Helppie, signing off on The Common Bridge.
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Transcribed by Cynthia Snyder
What If Each State Had Its Own Abortion Laws?