Support for Arkansas Week provided by the Arkansas Democrat Gazette.

The Arkansas Times and KUARFM 89.

And welcome to Arkansas week.

I'm Christina Munoz.

The Supreme Court made several decisions in June that could have dramatic effects on the country and here in Arkansas, we'll talk about those today with two legal experts joining me today are Joshua Silverstein, professor of law at UALR.

William H Bowen School of Law, and John Depippo, Dean emeritus at UALR.

William H. Owen School of Law.

I first want to say thank you to both of you for joining us today.

You're welcome, thanks for having good to be here.

Great to be here absolutely.

So we have a lot to talk about.

Today we are going to go through a lot of different cases including gun control, separation of church and state, climate change regarding the EPA, but I do want to start with the Roe versus Wade because it is such a talker.

It has been on on the top of conversations everywhere recently and so I'm going to start with John de Pippa.

If you would first take us through this decision.

The Supreme Court ruling because there's when you read the decision.

It's really a lot about the 14th Amendment and really more of a reversal of what happened 50 years ago than anything else.

So tell us what the actual decision was by the Supreme Court.

Sure, so let's go back to Roe versus Wade.

So on Roe versus Wade.

In 1972, the Supreme Court held that the right to choose an abortion was protected by what's called the Liberty Clause of the 14th Amendment.

And the court felt that even though the word abortion doesn't appear in the Constitution, the right to make that choice was protected by that liberty.

20 years later in Planned Parenthood versus Casey.

The court reaffirmed that decision and then more firmly grounded the right to an abortion in this notion of liberty and that liberty was broader than abortion.

It was including choices that matter to a person's self definition and autonomy.

Well, in the more recent case, the Supreme Court said that Roe was wrong and then this other case, Casey was also wrong because the right to choose an abortion was not protected by the Liberty Clause.

And that's why the court had to go back and look at the history of the 14th amendment.

Look at the history of.

The Constitution coming forward, and they concluded that in our history and tradition we have never treated the right to an abortion as a fundamental right, and therefore it could be regulated by the States.

And that's a change.

Obviously from both Roe versus Wade and Planned Parenthood versus Casey.

Absolutely a very big change and many of you already know Arkansas had a trigger law that was put into place a couple of years ago.

So Mr Silverstein, I want you to kind of explain what that meant for Arkansas with regard to the trigger law that as soon as it was signed by, the Attorney general went into effect here in the natural state.

A trigger law is called a trigger law because there's something that sets the law in motion, and so Arkansas was one of nearly a dozen states that had these laws that would trigger an abortion ban as soon as Roe versus Wade was overturned.

Different states use different mechanisms to certify that Roe had been overturned.

In Arkansas, it was required that the state attorney general certify that Roe is gone.

And then that triggered the abortion ban and so that ban is now in operation statewide, and The only exception is for that life of the mother.

Absolutely OK, so I wanna go back to Mr Deppa here with regard to the 14th amendment.

There's a lot of concern that this is going to set some sort of precedent.

President is huge when it comes to law and and legal merits of what's happening, and so can you talk to us a little bit about about why that's a concern.

People are talking about same sex marriage.

People are talking about other instances where they feel like the same concept could be applied to other cases.

Can you kind of share why that's a concern out there?

Sure, well, in law.

You said precedent really matters, and the idea is that in the future you want to decide cases that are similar to prior cases, the same way.

And so when the court overruled Roe the logic they used, as I said, was to find that the due process clause, the liberty part of the due process clause, didn't protect the right to an abortion.

And their logic was, unless a right is deeply rooted in our history and tradition, and unless we can show that we've we have not regulated that right consistently from the time the Constitution was made in the 14th Amendment was adopted and that right doesn't get any special protection.

Well, as I said, Planned Parenthood versus Casey said that the right to choose an abortion was part of a much broader right.

And Casey was used in cases involving same-sex intimacy and same sex marriage.

And so if the Court's logic is correct, that is, these rights have to be deeply rooted and can never be effectively regulated.

Then that calls into question.

Whether or not same-sex intimacy is protected by the Constitution, and whether same sex marriage is protected by the Constitution because of those cases were built on the same foundation.

That row was and it's not just those cases.

If you look at our history, it goes back to early 20s when the Supreme Court decided a couple of cases involving parental rights.

They're not mentioned in the Constitution, but they're part of this constellation of making choices that are close to you.

The right to choose contraception is the same thing based on the same foundation.

So the logic of this recent decision calls into question the holdings and all those other cases.

OK, so I know I know Joshua Joshua Silverstein.

We were talking just a little bit about when you talk about teach theology and talking about kind of the what could happen.

So I want you to dig deeper into that.

If you had a crystal ball and you look forward, do you think this precedent, setting case and decision that they have made will have impact on all of these other topics that were thrown out there?

So I think that there are certain areas of this right to bodily autonomy and sexual intimacy and integrity that deemed Pippa's been talking about that are more vulnerable than others.

The area that I think would be most likely to be challenged and then possibly have a major decision overturned would be same sex marriage.

I think same sex intimacy.

I think contraception.

Those are less likely to.

Be a challenged generally and less likely for the Supreme Court to overturn its precedents that protected a right to contraception.

That's Griswold in 1965 and same-sex intimacy, which is Lawrence V Texas in 2003.

But same sex marriage became a constitutional right in 2015 in Obergefell.

That's a lot more recent, and so I think it's more likely that the court would overturn that decision.

There's also still more resistance.

Around the country in more conservative states to same sex marriage than there is to contraception and same-sex intimacy.

I think Dean de Pepper's right.

Everything is now to some degree in danger, but I think same sex marriage is the area that I would if I were to predict the most likely area where the Supreme Court would make another change in the law.

It's same sex marriage, which really explains why we're seeing that why it's being talked about and a lot of people were understanding what the connection was.

And you guys have explained that very well.

So thank you very much for that.

So I want to go back to you.

John de Pippa and talk about when it comes to the state law.

There's a lot of question about we we mentioned except for the death or for the health of the mother, that that is an exception in our law.

But when it comes to morning after pill, that's more prevention or in vitro fertilization where you have the egg and the sperm already created and together when it comes to destruction of that and decision making.

With regard to that, what does our trigger law look like?

When it comes to this in the state of Arkansas.

That's a really good question, so the trigger law has an exception.

And it says abortion is banned unless.

Carrying pregnancy to term would result in the death of the mother from a physical.

Challenge some sort of physical ailment.

And and even that may not be entirely clear.

For example, how close to death must the patient be before the physician could do an abortion?

And there have been some reports of other states where physicians are waiting until the the condition is really serious before they step in.

Secondly, the law makes an exception for what it caused.

Calls contraceptive.

The methods that occur before the normally accepted time when the pregnancy can be determined.

So.

It's possible that that language would exclude what's called Plan B or morning after contraception, because no one can determine pregnancy at that stage.

Pregnancy can be determined only when the the embryo implants in the womb.

There have been, however, states other states that have attempted to redefine their laws to call those kind of methods.

Methods of abortion.

Finally, you mentioned in vitro fertilization.

And it seems to me that the trigger law would actually cover that.

Now it's hard to say, because they don't mention it, but the trigger law defines an abortion as taking the life of, as it says, an unborn human person of the homeo sapiens sapiens species.

Well, strictly speaking, that would include fertilized eggs in in vitro fertilization processes.

So those last two, I suspect will be clarified.

In the next legislative session.

I believe you're right and we spoke to the governor about that too.

And about how that will be a topic.

I'm sure that they will be discussing well.

This is something that's incredibly fascinating to me.

The legal side of it, but we have other topics to get to, so I'm going to go ahead and move on to our next case that we really want to talk about to get your insight on.

And this is called kind of been coined the gun case, and boy, this has been talked about a lot too.

With so many mass shootings and different things going on, gun control has been a huge topic of discussion recently, and this is more actually.

What New York State?

It was the New York State rifle and Pistol Association versus Bruin, all regarding the Second Amendment.

So first I'm going to turn to you.

Joshua Silverstein.

If you could first kind of summarize what happened and what the decision actually was regarding this decision.

So in 2008, the Supreme Court ruled in the Heller decision that the Second Amendment protects an individual right to keep and bear arms.

It's not solely about your ability or right to serve in the militia, but the court hadn't said much about the scope of that right.

New York State had a regulation that limited your ability to carry a weapon in public.

You needed a permit, and there were certain requirements you had to met.

You had to show proper cause why you should be entitled to carry a weapon in public.

The Supreme Court said that goes too far.

That is an improper regulation of the Second Amendment right to keep and bear arms, and perhaps the most significant part of the case is the way the Court reached that conclusion.

Historically, when the court has looked at whether a regulation of a constitutional right is valid or not.

The court weighs the interest of the government against the right that is being regulated.

The court didn't do that this time.

In the Bruin case, the court focused almost exclusively on history.

It asked is the New York regulation the type of regulation that we have historically allowed both at the founding in the late 18th century, when the 14th Amendment was adopted, and then a little bit more throughout the rest of our history?

So it's not just that the court expanded its understanding of the Second Amendment right to keep and bear arms.

The method it used could result in a significant change in how the court analyzes constitutional rights and regulation of those rights.

Generally very fascinating, so I appreciate you kind of explaining what that actually means.

So back over to Dean Deppa.

So what does this mean for Arkansas?

It doesn't have any impact at all.

Or is it all about future implications?

It's mostly about future implications, since Arkansas has very few restrictions on weapons and and the question in this case really comes down to things like can the government in the future regulate the person?

To carry a gun, can it set aids limits?

For example, can it exclude people who have convictions for domestic violence?

Can it do other things and limit who can have a weapon?

Can a state also in the future limit the places where weapons can be carried?

Churches, schools.

Sports stadiums, things like that and the court left those decisions open.

Now Professor Silverstein is right, answering those questions is going to require states to go back and say, well, you know, we've regulated, say, carrying guns in churches, since the framing of the Constitution in this current regulation isn't any bigger a burden on them.

But in other states it is going to have a significant impact because there are other states that have more restrictive laws.

New York, California, Illinois.

Other places like that.

It's so interesting to me, so Joshua Silverstein, again with regard to Arkansas.

We passed this enhancement law not too long ago, which did impact some of the places you listed off with churches, higher education, different places that you had to have an enhancement.

It doesn't say you can't, just as you have to have this enhancement.

So does this decision have any impact on those kinds of laws?

Well, we'll find out the court's methodology is 1 of what it calls analogy.

You have to look at an existing regulation and see if it is comparable sufficiently, similar to past regulations.

And so I, I think that the enhancement laws probably will be generally upheld, because I think the court gave some indication that regulation over the place is allowed.

And so if you can ban someone entirely.

From bringing a gun in certain locations, certainly you can allow them to bring the gun with somewhat greater restrictions than normal, but Dean Dipper's, right?

We can't know for sure because this historical method, the court developed in the Bruin case, is a relatively new development, and so we'll see how States and then lower courts start to analyze it, and then the Supreme Court will likely have to step in again at some point.

Wow, so much going on here.

Very complex situations that we're talking about, and now we're going to move on.

To yet another one, because this is another interesting topic, when we talk about the separation of church and state where that actually comes down to where, where that separation actually falls, and in this particular case this is about public funding with regard to a private institutions.

And so Dean depippo.

First explain what happened and explained this decision which was considered Carson versus Megan.

Sure, well, Maine has a unique setup and main because it's largely rural, doesn't have public schools.

Every county and so in those places where the state of Maine did not have public schools, the state said to parents will send you the equivalent amount of funding and you can use that funding at a private school.

But the law excluded religious schools from that benefit.

The Supreme Court held that you couldn't do that, that it violated the free exercise clause of religion, because if you allow a secular group to have a benefit, you can't exclude a religious group just because they're religious.

And so if Maine wants to continue to fund.

Schools this way it has to allow parents to use that money at both private secular schools and private religious schools.

Now Maine responded prior to the decision and they said any school, religious or private, that takes this money has to abide by certain nondiscrimination regulations.

And if you agree you get the money, whether you're private or religious.

If you don't, you don't get the money and the plaintiffs in this case actually said well, then we don't want the money because the school they wanted to send their children to would not agree to those.

Conditions.

OK, so you explain it very well there and it really is about a main situation and so Mr. Silver said I'm gonna go over to you talk about Arkansas and looking forward and that theology that we've been talking about.

But what kind of impact could this have on separation of church and state in Arkansas?

What the Supreme Court has been doing over the last couple of decades is reinvigorating the free exercise clause of the 1st amendment.

The 1st Amendment has two clauses that protect religion.

One says there will be no establishment of religion.

One says the government may not limit the free exercise and the court has been accused of giving too much weight to the Establishment Clause and not enough to the free exercise clause.

So the court.

Is one could interpret it as rebalancing a little bit, bringing a little more energy to the free exercise clause, but the implications are very broad.

Basically, if a benefit is being provided by the state.

To secular entities of any type, it could be schools.

It could be others.

There's now a good argument that religious entities are entitled to those same benefits, and so we're going to see greater entanglement between the government and religious institutions.

How much?

It depends on what types of actions states try to take.

If Arkansas creates a broader voucher program, those vouchers will have to be usable.

At both secular and religious institutions, well now Dean Depippo, I want to go back to you because I believe the original intent of separation of church and state is that the state the government cannot force any religion or anything on anyone else, and that's not what's happening here.

This is about funding, so I believe that that's kind of the case with this when it comes to access to funding and a lot of times a religious institution of of any sort doesn't want to abide by any sort of the federal regs, and so that's why they won't want the money.

But in this case, if they do.

They do have to abide by that, but they are allowed to have it.

So looking at Arkansas and the landscape of Arkansas, what do you think that impact could be here?

Well, I don't see it again having much impact because Arkansas has has traditionally been very generous about sharing the public benefits and you don't have the situation.

Certainly like Maine, but you also have had the legislature in the past offer grant programs to child care agencies and things like that.

What I think the impact is is going to be is larger, politically and legally.

I think you will see.

More and more of these programs designed to share public benefits broadly and include private and secular.

In in the question really comes down to one of history.

I mean historically we have been reluctant to use public funds to pay for religious education, and in this main case the court said that's really not that big a concern.

If you're going to fund private education, you have to do it equally, and the court signaled that for the last several years with COVID regulations and some other programs.

I think you summarized that up very well for us, so thank you so much, we're going to switch to our last topic that we're talking about with regard to climate change, and this was regarding West Virginia versus the EPA.

The Environmental Protection Agency.

It was being coined a little bit as a hit to the Biden administration's desire to affect climate change and his goals that he has for a long term.

So first, if you would Mr Silverstein explain what this is and explain what this decision actually was.

So in this case, West Virginia challenged an EPA regulation that concerned power plants and their greenhouse gas emissions, and more specifically, it was about coal fired power plants.

Could the EPA regulate greenhouse gas emissions of coal fired power plants?

The court ruled six to three that Congress had not been specific enough in giving the EPA the authority to regulate greenhouse gas emissions of those plants, the court further developed something called the major question doctrine.

Normally, when Congress delegates authority to solve some problem or regulate some area to an agency like the EPA or the Securities and Exchange Commission, the Court uses its normal rules of interpreting.

Factions, it looks at the statute and says, well, did this statute plausibly grant that authority?

But when it comes to areas of real significance, what are called major questions?

The Supreme Court is now requiring Congress to be a lot clearer if it wants the EPA to do a regulation that constitutes something significant or major Congress's got to make that clear.

And the court said in this case that didn't happen.

The Congress did not make it clear enough, and so the EPA's regulation was invalid now.

Want to say one more point about this.

Congress can correct the problem.

This wasn't as big a decision as, say, a new interpretation of the Constitution.

All Congress has to do legally is pass a new statute that gives the EPA that authority to regulate greenhouse gas emissions from different types of power plants.

So legally not the biggest decision in the world, but politically, this was very significant because we all know that.

Congress is largely tied up in gridlock and has been for some time, so it will be difficult, most likely for Congress to pass a statute that actually corrects this problem.

So often it is more political than legal, so Dean Depippo over to you.

Is there any impact on Arkansas, or could there be in the future?

Well, there can be and, and I think that the question really is what this major question doctrine means.

Because the court has not been clear in defining what it is.

In essence, they've said, we'll, we'll tell you when we see it.

Well, you know in the modern world, most federal regulations are going to have a major impact on the economy, and so you can think of all of them as having a, a being, a major question.

And if that's true, then the court has inserted itself into the regulation.

And so, in my view, it opens up all of the especially Environmental Protection.

Agency regulations to challenge.

Because all of them could be major questions now the court in this case said, well, Congress can still use a different part or the government can use a different part of the law to regulate the emissions from individual factories.

And in this case they tried to do it sector wide by shifting production from coal to other renewables.

And so again, it seems to me that that still opens up the challenge and the problem of course is political gridlock.

You know, the court said over 10 years ago when they revised the the Voting Rights Act.

Well, Congress has to act well.

Congress hasn't acted in all that time.

And similarly, Congress could make this an easy fix, but they haven't.

And so I think it opens up an era where almost every regulation can be challenged as being a major question.

And almost every regulation will have this sort of.

Doubt about its value and its effect.

Because the court can decide what's a major question and what's not.

Well, I think your term political gridlock really defines all of the topics that we've been talking about here today, and I want to say thank you.

I found this incredibly fascinating our.

I hope our viewers did too, and I want to thank you both for sharing your time with us here today.

Thank you, it's a pleasure.

Thank you very much for having us.

Thank you both.

Very very much.

Unfortunately we are out of time.

I feel like we could do this for hours and hours.

I'm Christina Munoz and we will see you next week.

Support for Arkansas Week provided by the Arkansas Democrat Gazette.

The Arkansas Times and K UAR FM 89.