Episode 37 - My Body, My Choice? The Heartbeat Law & Vaccine Mandate

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC. You can find us on the internet at www.www.aswlawoffice.com or by calling 1-888-981-7509. Your hosts are Bryan Abercrombie and Samuel Sanchez. Bryan has been practicing law for 18 years, and he’s board certified by the Texas Board of Legal Specialization in the area of Family Law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a Certified Mediator. This podcast is for informational purposes only, and represent the opinions of the hosts. It’s not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. We hope you enjoy the top Texas Lawyers podcast.

Good afternoon and welcome to the Top Texas Lawyers Podcast. I am your host, Bryan Abercrombie, and with me, as always, is my partner in crime and the greatness of our law firm, Samuel Sanchez. Sam, how are you doing?

Not too bad. Not too bad. I’m the Oreos to your milk, right?

Yeah, yeah. Well, you are the Butch Cassidy to my Sundance kid, right?

There you go. I like it.

I don’t know if that’s a good reference or a bad reference, but I did like Butch Cassidy, Sundance Kid or the Doc Holliday to my Wyatt Earp.

Hey, yeah, you’re definitely Wyatt Earp in that scenario.

Well, anyway, we got a big show today because we are talking about some extremely controversial issues. We’re going to talk about the new Texas abortion law, what everyone’s calling the Heartbeat Law. And we’re also going to talk about the latest and greatest of the guess for lack of a better word, government mandated vaccine requests. So I know those are highly controversial topics. We’re not here to give out medical advice. Just want to preface that by saying we’re not giving out medical advice or advocating a particular political position, even though we both have them on these issues. But we are going to be talking about it. And, you know, a robust debate is always is always good when we’re talking about difficult issues. So without further ado, let’s cover Celebrity News.

The Celebrity Corner man. So let’s do let’s start off with our girl, Britney. Obviously, we did a couple of podcasts talking about guardianships and what’s been going on with her case was kind of, you know, at the forefront of a lot of people’s minds. And so it turns out like there have been some pretty major turns in her case. Most of the largest probably is that her father decided to step out from that trustee role, which we know is extremely powerful and extremely cumbersome. And I think he’s learned that a very difficult, a difficult lesson, right? You know, public opinion, obviously, when you’re talking about stars can swing things a lot of different ways, but even just normal everyday people. You and I both know that is a a tough role to be in.

Absolutely. Especially as a dad, no. One and then also as a dad who’s a caretaker, you know, and obviously, we don’t know all the ins and outs of the, you know, there’s a lot in that in that court case that’s hidden from public view. So we don’t know. But not much

Of her, not much of Britney can from public view.

But I’m sure I’d be more if you look at Instagram. But you know, it does. The interesting thing about that case, I think, in my opinion, is that it represents a significant impact on a person’s life. You know, was she so bad? Was her medical condition so bad that it required someone to take full control over her person and her and her estate to the point where she can’t even, you know, remove a birth control device on her own without the Guardian’s consent? I don’t know the answer to that question. Obviously, I’ve never seen the mental health reports or anything like that. I know she has some massive problems. You know, that were highly publicized. But is this a question of government overreach or overreach of the state or overreach of a guardian or of an individual over another individual? Or is it, you know, as it was a completely necessary, I guess time is going to tell on that, I guess.

Yeah, you know, it’s always a difficult, a difficult choice, especially when somebody voluntarily submits to something like that. You know, at one point, people around her, she felt like it was a good idea. And now she wants out of it. So I guess we’re going to see. Time will tell.

Yes. So let’s get into the meat and potatoes topics of today. So I’m not sure which one you want to tackle. First, you want to tackle the new Texas heartbeat law or do you want to tackle the vaccine mandate?

Yeah, the quote to quote a very famous line. You know, a law. Don’t go around here, law dog. So let’s start with the heartbeat law,

Ok, the heartbeat law. Well, as many of you know, the Texas Heartbeat Law went into effect on September the 1st, which just basically makes it a crime. Well, not really a crime, but it makes it’s basically against the law at this point to have an abortion after six weeks or when a fetal heartbeat is detected on a on a baby. So inside the mother’s womb. So that happens at about six weeks. Obviously, there’s a lot, a lot, a lot of controversy surrounding this law. There’s already been lawsuits filed. There’s already been a request for an injunction to the United States Supreme Court, which was turned down on a five to four decision. So basically, my understanding of the law and correct me if I’m wrong, is that it prevents an abortion after a fetal heartbeat is able to be detected. So after a separate heartbeat is able to be detected, then the abortion would no longer be allowed. And now the enforcement mechanism is what makes it makes it more. It makes it interesting. It allows a private citizen to sue. I guess the abortion provider or anybody that aids the abortion provider and providing that abortion for up to $10000, it doesn’t really provide. As I read the law, it doesn’t really provide a mandated state enforcement mechanism.

No, it really doesn’t, which is what I think is part of the challenge that’s going to come before the court, obviously, we know that the Justice Department is filing on behalf of the United States to try to sue Texas over this law as well. But you know, the enforcement mechanism, I think, is really where this law is probably most susceptible, whether you want it or not, when you talk about a private citizen having the opportunity to establish what we would call, you know, to have standing right. So when we talk about standing in a lawsuit, you and I both know we’ve had a lot of complexity and a lot of litigation over these types of things. Most people can’t sue somebody else who doesn’t have some type of direct correlation over an abortion. It’s never existed. So the uniqueness of this law is that it actually grants individuals standing to sue over those types of activities. And so, you know, a lot of people have said, Well, what’s the enforcement mechanism? Is it going to be police officers out there saying, Oh, now you can go ahead and sue that person? Are they going out and getting injunctive relief? You know, this is really money damages. And unfortunately, in the state of Texas, you and I both know money damages a lot of times doesn’t really equate to a whole lot. Most people are pretty secure in Texas as far as like personal sue, but it does definitely open a window where somebody could come in and say, I know this happened. I know that you helped, you transported. And so I want to be able to sue you over this. I think it’s really specifically targeted towards the other person involved in that relationship. So like I say that, yeah, you’re a boyfriend. You didn’t know what’s going on. Someone goes out and has an abortion. You find out here is who people aided and abetted or assisted or however you want to state that then I have an avenue to be able to come in and kind of like, you know, assert my claim.

It seems to me that like five people can’t all sue the same doctor for ten thousand over the same abortion. It appears to me in my reading of it that you can sue one time or you can sue. Multiple people can sue the same doctor for the same abortion, but you can only collect one ten thousand dollars damage, damage, judgment. So you could have one hundred people suing the same, the same person and all all 100 people would have to split ten thousand bucks. As I understand it, and as I also understand it, there’s nothing in the law that allows a person to sue the mother who’s actually going to get the abortion. It really is is purely on the provider and someone who knowingly. That’s I think, specific in the statute, knowingly assisting in that, in that in that procedure.

Sure. And the challenge, I mean that I think a lot of what is drawn so much criticism. Obviously, this has always been contested since the 70s of Roe v. Wade, but it’s really about the six week time frame as well, because most people don’t even find out that they’re pregnant until substantially after that time period. So what people say this effectively bans abortions. That’s what they mean by that. They mean that by the time you would even have an indication that you could be pregnant, it’s too late to be able to go and have an abortion.

And I and I know there’s mixed, mixed opinion on that. I mean, I think some of that if you’re engaging in the activity that can reasonably produce a baby, you know, maybe I think that’s how it is. Maybe some personal responsibility is due at that point, you know, to see if you’re, you know, maybe you need a pee on a stick at four weeks as opposed to, you know, later to figure it out. I mean, I don’t know, but I know that’s a big excuse that people are throwing out there. Will, you know, most people don’t know that they’re pregnant at six weeks? Well, you know, if you’re engaging in the activity and you have the least bit of personal responsibility, maybe you should. You know, this is coming from the evil man, right? A man’s not allowed to have an opinion on an abortion, apparently, even though all men decide that the Roe v. Wade case. But whatever, we won’t get into that. But you know, my my personal opinion, I mean is, is I mean, I think the law is simple. If it if it has a heartbeat, you can’t kill it. I mean, that’s I think I think they’re trying to to do a lot of things to make it constitutional. I think they’re I think in my personal opinion, I think the heart’s in the right place. I don’t know if this law will pass muster, you know, at the end of the day. But I do think medical science has come a long way since 1973. Roe v. Wade decision and the 1990 What Planned Parenthood vs. Casey decision. So medical science has come a long way in that and that amount of time. So I do think there needs to be at least another look at this. You know, with respect to to this, this unborn life that we’re talking about here, what I think when you come down on it.

Yeah, I think the other challenge really that a lot of people have are taking issue with is there’s not exceptions, right? So one of the chief kind of, I guess, statements that the governor made governor. About this particular law was, you know, he was questioned on rape, incest, no exception. And his response was, don’t worry, we’re going to eliminate rape from the state of Texas. It was silly and the unfortunate thing is is like no matter the intent, I agree with you. I think that there are a lot of people who are looking at this law and thinking, like, there’s this evil mechanism behind trying to save these babies. I don’t really think it’s that. I think that that’s the challenge that we have and we we want to overlook the potential positive things that can come from a law like this. As far as accountability, when we immediately jump to asinine kind of statements that are kind of like, well, that that doesn’t really fit. You know, I would love to say that he eliminates rape from from the state. That would be fantastic. I think we’d have a lot of people feel pretty secure. How realistic is that? Who the hell knows? You know, if he’s going to try it? Great. But I do think that that’s really these two avenues that we’re talking about are challenges that the governor is going to face. The courts are going to face. You know, how do you you know how much how much are you going to grant people standing to sue, which is novel? And then on top of that, are you not going to grant any type of exemption? These are the kinds of things that I think courts have wrestled with, and it kind of puts you gives this law more susceptibility than I think potentially it might be.

Here’s my concern I always hear the rape and incest exceptions. And look, I 100 percent agree that there should be a rape and incest exception in there because I mean, you should not force someone who’s been the victim of sexual assault and who was pregnant as a result of that, sexual assault should never be forced to carry a baby to term the emotional, you know, the emotional scars and trauma of that and of that rape no. One and then of having to carry the rapist child to to term. I can’t even imagine. Honestly, it’s too horrible to imagine. The problem I have with it is, OK, you have on the one side you have. Abortion should be legal all the way up and until birth in some states, there’s partial birth abortion, you can induce labor and and it’s legal to abort at that point. At some point you’re talking about a human life and then you have the other side of it saying that, oh, well, life life begins at conception. So this Texas law, I think, is trying to be a bridge in the middle with, OK will grant you that. You know, that fertilization, you know, is not conception is not necessarily when life is created, although obviously there’s a lot of arguments to that. But this is this Texas law is designed to be a bridge in and between those two extremes, right? You know, no abortion at all versus abortion up to and including, you know, birth.

So you’ve got this six weeks heartbeat law that’s designed to probably be kind of a meeting in the middle. The problem I have with the rape and incest everyone talks about exceptions for rape and incest. Well, OK, you talk to the normal, the pro-choice person, you say, OK, well, are you going to be against abortion in all other circumstances? If you allow for rape and incest and the majority of the time, the answer is no, I’m not going to be against abortion at all and under any circumstances, OK, well, then that’s a red herring. So yes, I do think there should well, I do think there should be, you know, rape and incest exceptions. I do think that that’s kind of a red herring in the argument because we have an argument on one side with everything up to birth inducing labor to abort is OK and then letting the child die after it’s born, you know, on the one hand versus, you know, no abortions at all, even at the moment after shortly after conception. You know, on the other hand, so I think this Texas law is designed to be at least some sort of a I don’t want to call it a compromise, but a bridge in between those two viewpoints. I mean, you can argue whether or not that’s too close or too far from either spectrum. But you know, there’s my two cents.

Yeah, you know, I mean, I agree with you. I think that it is, you know, it was an attempt to try to find some ground that both people could both sides could kind of maybe live with, you know, the unfortunate. I think this is one of those one of those topics legally that has resulted in like polar opposites, right? It either exists or it doesn’t. It’s like no camp in the middle where it can exist in a happy plane where, you know, only these minimal exceptions are, but they’re OK to everybody else because it’s still protecting the majority of life. It’s like it’s all or nothing on either side. And you know, the unfortunate thing is about this law is I think that, you know, the way courts have examined abortion laws in the past is really that way all or nothing, right? They don’t really. It’s been very difficult for them to draw a medical or scientific bright line that says this seems acceptable. And, you know, with the conservative court, I feel like this is probably, you know, I can see why everybody’s taking their chance now because, you know, I think the injunctive relief that was pledged for everybody made a big deal out of that. But I think they were just saying, Hey, no, we haven’t. This is premature. We understand why you want it, but let’s let it work its way through the courts and see if it resolves itself before it even gets to us, which I think is really smart on the on the court itself because a lot of times they jump into early and then, you know, it really inspires additional not only litigation, but legislation. And so I think they’re really kind of taking a wait and see, let’s let it work its way through when it gets to us, we’ll deal with it when we have to.

I mean, one of the other issues I have with it is, OK, you’re going to allow someone to sue someone for some third parties, abortion that they had. And I get that there is a possible public, public good or public interest there. But how are you going to get access to someone’s protected medical records to prove that they had this abortion? I mean, there’s a sip of violations out the ying yang, if you’re told you’d have to go get a court order allowing you to get some persons this third person’s medical records in order to prove that the abortion actually took place. Unless that person is willing to turn over those records and provide them to you and tell you what happened.

Oh, I agree. Not only yeah, and there’s layers, it takes it so far out in layers like so let’s say you did want to see somebody over, hey, their best friend transported them to have an abortion after the heartbeat was detected. And you want to sue the friend? You know, I think like in this situation, it’s going to be very interesting to see if it makes it, because obviously the good news is, I think effectively abortion stopped in the state of Texas for right now. So everything figures it out like providers are kind of going out there going like, Hey, this is the rule. We’re just not going to we’re not going to do anything until it works its way out. So I do think that it’s going to be up to the legal community to really try to finally use whatever scientific method, methodology and insights that we can to create a positive line to help resolve this. Because I’ll be honest with you, we litigate this case. It goes, I guarantee you if you looked across the country, there have to probably be thousands upon thousands of cases pending before lower courts, appellate courts and Supreme Courts. That doesn’t even count the federal courts. So everybody in the in this country has tested at one way or another, either negatively or positively restricting or opening it up. And so if we could ever figure out something legally to really kind of address this issue in a law, I think it would really, really be a positive thing as far as for overall litigation and individuals in this country.

Let’s talk about the real world application of this. I mean, put your lawyer hat on for a second. Do you honestly think that there’s really going to be a court in Texas that’s going to take a look at a case like this and decide it based on the merits of the particular case? Rather than injecting the whatever, whatever party the judge belongs to, or whatever city or the or prevailing political attitude of the area is going to decide that case. Do you think it’s going to be a case where I’m going to be a judge and I’m going to dismiss any case that comes before me because I’m staunchly pro-choice, I’m going to dismiss any case that comes before me where someone’s trying to sue an abortion provider or find it some reason to to get rid of it. Or if I’m staunchly pro-life, am I going to allow all of these cases to run roughshod in the court and then have thousands, potentially thousands of cases involving, you know, abortion providers?

Yeah, you know, I think the bigger challenge is, you know, I’ll take a step back from that. I think it’s going to be really challenging to find a lawyer to prosecute a case like this. I think, you know, regardless of what our personal beliefs are, you know, somebody’s really going to have to because the statute

Does allow for attorneys fees to be awarded. It does.

It does. And but in that I think, you know, the concern that I would think in that situation is recovering those fees, you know, recovering the funds that you’re awarded. I think most lawyers are going to look at a situation like this and be like, Yeah, I don’t think I’m going to jump into that fray. So then you take it a step further. Let’s say you did find somebody who was like, Hey, you know what? I’m willing to? Who knows? Maybe I’ll collect my fees no matter what. I’m going to be in the news and I’ll all press is good press. And so I’ll take this case and they decide to prosecute it. I agree with you one hundred percent. I think judges are going to be disinclined to want to hear this kind of litigation unless they absolutely have to and then when they have to. I absolutely agree with you. The realist in me says, Hey, you know, whatever your personal politics are, is the way you’re going to rule. There’s broad discretion in what you say or what you do. And you know, and the application of the law in this instance. So I definitely would think you’d better know your audience.

Is this something that goes in front of a jury? I don’t even I don’t know for sure if this is even a jury question. This is something that could be allowed in front of a jury number one and number two. I guess my big problem is a lawyer taking a case like this would be how do I prove that this occurred? How do I prove that the act occurred? I mean, I still think it’s a massive hurdle to get over to get those medical records to prove that an actual abortion, you know, a post six weeks abortion took place.

Right? Yeah, yeah, you’re absolutely right. Well, and you know, and you look at that as you go through the question of a jury. Obviously in Texas, not all states are this way. So if you listen to it from another state or country in Texas, most issues can be presented to a jury in a limited fashion, but it usually revolves around questions of fact so a jury can consider questions of fabric questions of law. But if you can’t prove

If you can’t prove that an abortion took place, you’re never going to get to a jury. Right? The judge is going to kind of toss it before it gets to a jury on a summary judgment.

Yeah. So I think that’s where a lot of this litigation will probably terminate itself.

I get I get the intent of the law is designed to take the state out of it. So it’s not a state actor. It’s also it’s also designed to it’s designed to discourage abortion procedures. That’s that’s really I mean, let’s call a spade a spade, right? It’s designed to discourage abortions. But whether it whether it whether actually I would really be shocked to see if somebody’s going to actually collect damages and win a case like this, I mean, I’d be I’d be surprised. It definitely would make history, I think.

Oh, I agree wholeheartedly. And not only that, like history, like you’d be, you know, it’d be all over the media. You’d be doing interviews left and right just because people would want to, like talk to the person who was actually prosecuting this case and successfully. I agree with you, Brian. I think that, you know, we’re early on the law as drafted, I think has some problems. And you and I both know that if it’s got problems in the courts, you usually are going to ferret those out. Now, does that mean that it gets overturned in part and sustained in part? Is it all overturned? Do they come back and revise it and try to implement it? These are things that are still in our future.

I mean, I do think they should have had and they should have added a rape or incest provision in there. That just seems sensible if you’re trying to make a sensible law on this thing. I understand the I understand the the pro-choice and the pro pro-life arguments on both sides of this thing. But you know, it seems to me that if you’re trying to make a sensible law about it, you would have to include a rape or incest, you know, protection in there.

Yeah, I mean, you know, these are just things that it’s not the victim’s fault. And if you’re especially, let’s just take it, you know, take it into the extreme. Either you’re a minor, you’re 16. You know, this is the person. It’s incest, you’ve been raped at home and they’re not going to take you to the doctor and let you find out, you know what I’m saying? So like at that point, what happened? You know, and so these are things that, you know, but that’s the challenge of drafting these kinds of laws. You know, every law that you and I both know our code book, we have a family law cookbook. We have a Court of Civil Code, but there are gigantic. And they’re constantly being updated and revised and amended to address just the nuances of drafting. So take that in laws that have been in existence with case law supporting them for years decades. Now you’re talking about something that’s just now hitting the books and what it’s going to be. So I guarantee you legal scholars are picking every word apart to see kind of what’s acceptable and what’s not.

Ok, let’s move on because it is I mean, we’ll tie this together later, but this is kind of tied to, you know, to this kind of bodily kind of integrity argument. My body, my choice argument is the vaccine mandate that it was just handed down yesterday by law.

Don’t go around here, law dog around here.

So the illustrious leader mandated yesterday through executive order that all companies that have 100 or more employees are required to have their employees vaccinated or the employees are required to be vaccinated or have a COVID test once a week. All federal employees, with the exception of postal workers, have to be vaccinated by a date certain and all persons in the military have to be vaccinated. I don’t think there’s any exception to that. I don’t think there’s even a testing exception to the federal employees. So which, you know, leads me to the to the big. The big question is, can a can the can the state mandate vaccinations? And so I did some some research on this on this topic, and it’s interesting. There’s there’s kind of I would kind of I looked at this guy’s article. He wrote an article for MSN has Ghanim Nicholas Tampopo, I think is his name, and I hope I didn’t pronounce that. Hope I didn’t miss. Mispronounce his name, but it was a very good argument. It was a very good kind of synopsis of the of the kind of you kind of have pre-civil rights era cases and you have post-civil rights era cases. So just to give you a little bit of a history lesson, Sam, I don’t know if you want one or not,

Always a student of yours, Bryan. Oh, is your student,

But this guy is this gentleman is a political science professor. And let me find it at Fordham University in New York. So he he kind of wrote an article about vaccine mandates, and this was this is a recent article like it was put out in August. So there’s two big cases that the court could or that they think that the Biden administration is kind of kind of kind of rely on to to enforce these kind of vaccine mandates. One of them is the Jacob Jacobson versus Massachusetts case in nineteen, oh, five and then another one is the buck versus Bell case, which was in nineteen twenty seven. So the and these were like I said, these were pre 1960s era civil rights litigation. So basically, there was a the Jacobson case, which is the case that’s most, most heavily cited for this is a nineteen oh five case. And basically the there was a smallpox outbreak in in the Northeast, and they were forcing everyone to get smallpox vaccinations. And basically, if you didn’t get a smallpox vaccination, it was a $5 fine. And if you didn’t pay the fine, he went to jail. So this guy who was a pastor challenged the law because he, I guess he said he was having side effects from he would have it could potentially make him sick or or something of that nature and challenge the law. And it went all the way to the Supreme Court and the Supreme Court said no, the state can mandate a vaccination, can mandate that you have a vaccination now. The difference between that and I guess the state didn’t say you have to be vaccinated, the states that the Supreme Court specifically says the state can find someone for not getting a vaccination. So there’s a little bit they’re not forcing you to get a jab in your arm, you know, or being forced into into medical treatment that you don’t want.

So the state said, but they did say the state has an interest in the public health to mandate people to get a vaccination or face a fine for this in this particular instance. And like I said, if you didn’t pay the fine, you went to jail and the fine was five bucks. So it was the equivalent of about one hundred and fifty bucks a day. So it was not a big, not a big fine. Second case, which is a. Amazing to me actually was the buck versus Bell case, and it was a case involving involving, they call it the feebleminded, so basically it was a case involving forced sterilization of area of a basically a mentally a mentally challenged person. And this case was decided in 1927 in the courts. The court siding that Jacob Jacobson case said that the court could mandate a forced sterilization and the interest of the public health, which is absolutely shocking to me. But that’s 1927. You know, that’s 1927, right? So here we are. Fast forward to the sixties. We have a whole litany of cases in the civil rights era dealing with kind of bodily integrity. So you have the beginning. In 1965, there was a Griswold versus Connecticut case involving, you know. The state trying to prevent people from using contraceptives. Obviously, that was decided that, you know, you can obviously use contraceptives. The loving versus Virginia case, which in 1967 case, which allows for being able to marry regardless of race so you can marry outside of your race. That didn’t occur until 1967. Surprisingly, the Roe v. Wade case in 1973 obviously allowed first trimester abortions. There is a 1987


Called And This Is It Gets It Gets More and more. Um, interesting as we go along. So the nineteen eighty seven case was, yeah, hold on. U.s. versus Stanley. And it basically says you’re not you. You cannot be forced, the state cannot force you to have medical treatment without your consent. And then the next case after this was the U.S. versus or I’m sorry, was Cruzan versus director of Missouri Department of Health, which talks about you being able to refuse treatment even if it’s in your best interest. So. Take what you can see is is kind of. And then it, then the next couple of cases with the Lawrence v. Texas case, which allows you to have any kind of sexual relations with another person that you choose to have. And then, of course, the Ober Obergefell case, which it deals with same sex marriage. So there was obviously this push in the civil rights era towards bodily integrity. You know, they call it kind of more of a bodily integrity era as opposed to what the old law was, which was obviously pre-civil rights era, which was up to and including the state forcing sterilization. So now we have vaccine mandates. So I don’t know that the government can use the the Jacobson case on vaccine mandate because. Number one, it was a state law passed by the I believe, the Massachusetts State Legislature or State Assembly, whatever it’s called in Massachusetts enforcing that law and the Supreme Court basically said that state or local governments can enact can enact measures that are in the public good for their state or their local area. Now this, we’re talking about a sweeping vaccination vaccination mandate on private companies. That’s nationwide, right? So, you know, let’s discuss and discuss.

Yeah, you know. So, Christine, the court’s history, obviously, this is an executive mandate, so it hasn’t been passed legislature federally. And the challenge is, you know, you’re talking about these two different the three branches of government courts, legislature, the executive branch and how they overlap. And so an executive mandate, these powers have really kind of, in my opinion, gone a little crazy ever since. Really, you know, George Bush to, you know, he really kind of took the mandates open Pandora’s box, Obama ran with it, and it’s been like doubling down ever since. So the challenge that presents is he’s kind of doing two parts. He’s going to use this case to say, Look, it’s the greater good argument, right? Do the needs of the many outweigh the right of the few? And if you know, if you look at, I think, the challenge that he’s going to have and I think we, you and I both had this conversation in the past, but what is this pandemic? How threatening is it to the overall public good? And I think that’s going to weigh heavily along the courts. The courts have evolved to more of a personal defense, meaning that, hey, you know, there’s a sanctity of the body and an individual’s right to protect it or not protect it. However, there that counterbalance that cantilever weight is society, right? They’ve already ruled in the past that, hey, you know what? States have the right to protect the overall societal population that exists by bypassing certain laws. It’s whether or not we’re going to have states rights versus federal rights because what the court has done, in my opinion, is typically looked at the states and said, if you want to do it, you have the right to do it.

If you if you got if you got a foundation, a basis for a reason to do it, we’re going to allow you to do it. However, you know, there are certain exceptions, and I think this is going to be a really interesting battle as it kind of goes up and down the pipeline because I don’t think that the Supreme Court, especially the conservative court, is going to want to extend federal rights to this level. However, the challenge that they have is, you know, the checks and balances between the, you know, the court branch, the legislative legal branch, the legislative branch and the executive branch because there are certain inherent powers in an executive mandate and one of them is in these kind of like times of war, times of exigent circumstances. And that’s really where I think he’s going to rely on is to say this is a pandemic, it’s worldwide. It’s killed hundreds of thousands of Americans. I have a basis to want to do this on a limited fashion. The problem is this is another one of those Pandora boxes, in my opinion, that if the court decides to allow it to continue, its really an unfettered check on the executive branch writing legislation without passing it through Congress. Who are our elected officials as well, who are really, you know, designated that power the power to pass legislation that would affect the state. So, you know, it’s a it’s a complicated argument that’s really going to go forward legally. That’s going to be, you know, well, litigated for sure.

Yeah. And I guess the big concern is, can you mandate people to do something by executive fiat? The president basically using dictatorial powers to mandate people to do something. And look, I get that the president is the is the chief executive of the government and the and the commander in chief of the military. So if the president wants to mandate vaccines for the military, whether you agree with it or not, he has the right to do that. If if the president wants to mandate vaccine for federal employees, he’s the chief executive of all federal agencies, so the president can do that, whether you agree with it or not. Now I do find it strange that they exempted, you know, six hundred and forty four thousand postal workers from this mandate.

But most officers don’t get sick, dude. Rain, rain, snow, sleet,

Hail covered, COVID. But still they still deliver the mail. But. But I think that I think the president does have the ability and the right to use his executive authority to to mandate government employees get it. So whether you agree with it or not, whether you agree with it or not, that’s I think, a right that the federal government has now. Where I draw the line in the hill to die on is I don’t believe personally that the president can dictate a private company to force its employees to get a vaccination or or face a $14000 fine or whatever the the the fine is alleged to be if a private, private, privately owned company chooses not to follow a vaccine mandate. And that’s going to be the challenge and that’s going to be the fight. Does that does that? You know, individual, individual, right, Trump, the purported common good in this particular situation, and I think obviously there’s going to be a debate on the science of this debate on me because I do think that there is a situation where the president could take that step if it was bad enough, if the pandemic was bad enough. I don’t personally believe that COVID is is bad enough to where the the the casualty rate is so high that that requires these types of government mandates. Now, is there a disease out there? If there was a say, for example, an Ebola outbreak or something like that where half the people that get it die? Or of course, you have to take absolutely the extreme measures at that point. But this is you’re talking about a virus that even the even the, you know, the vast majority of the people that do get it. Don’t don’t, don’t die of it. I mean, it is serious and it is something we have to take very seriously. And believe me, speaking from experience, you have to take it seriously. But at the same time, is it worth trampling all over everybody’s individual rights to do it? That’s the that’s the real question.

Well, as far as private companies, I’m going to tell you right now, it’s not like there’s not a history of the federal government doing this. I mean, the novel concept that they’re actually going to go in using OSHA regulations to try to implement this on on private companies because every company that deals with things that are regulated by OSHA has to be compliant or face those fines. So, you know, can they say this is a part of the integrity of an OSHA regulation that we can implement on private companies? The sad thing is is where I have more of a problem as well is that he’s trying to do something that Congress is typically empowered to do, which is control the purse strings. He’s basically saying no federal funds go to any contractor, any business doing business with the federal government if they’re non-compliant. And these are the types of regulations that typically are going to come from Congress. So the challenge that I have with presidential fiats and mandates is that they are they’re really circumventing a, you know, the congressional, the legislative branch to do these things because they know that it’s unlikely that it would happen that way.

And the courts historically when they act as that check and balance between these two branches have said, you know, these are the inherent powers constitutionally for these two branches and they should stay within their realm. But these fiats are very unique in relation to, just like you said, as commander in chief, he has a tremendous amount of power within the federal government and this ancillary power to once he’s controlled kind of that environment to effectuate kind of these millions of businesses that surround and kind of support the federal government. And so it is a tremendous amount of power, and I feel like it’s definitely something that we need to kind of I want Congress to be able to kind of really address that and decide through the courts, know what what are the limitations on those powers? Because I agree with you, I think it’s very complicated to say a president has the power to tell every business, you’re going to do this by size.

And I don’t think the speech yesterday helped. I don’t think you should go out there telling you, I’m going to get around the governors and I’m going to force you to do this. I’ve tried to be nice. I mean, that sounds like a dictator talking. I mean, unfortunately. And you know, I don’t I think I think you’re more likely to get compliance if you kind of explain the merits of something as opposed to trying to mandate it down somebody’s throat. Now. I don’t know a lot about OSHA. I don’t practice in that area, but it’s my understanding that in order to for an OSHA regulation, for something to be to be mandated in the workplace, OSHA has to prove that. And this is something for a court to decide, most likely that this is an immediate threat to the to the safety of the workplace, to the health and safety of the. In order to get this emergency ruling in place, they have to be able to prove that this is a threat to the, you know, safety of the workplace, which is covered at that level to be a threat to the workplace. I don’t know the answer to that question.

Yeah. You know, I mean, you know, I guess it’s going to depend like, I think if we were to have this in front of a court before Delta, or maybe some of these variants that you know scientifically

Are pretty, it’s going to get I mean, it could get worse.

Yeah. So I think that’s the challenge the scientific community is going to play a big part in this litigation, you know, because I don’t know that any of us really understand, you know, COVID, how it’s going to mutate, how it’s going to affect us. I don’t think it’s ever going to shut us down like it shut us down in the past. But who the hell knows? You know, I’m not a virologist. I don’t really have that foresight or that scientific background to be able to say it. And I know courts don’t either. So they’re going to rely on those individuals. But I do think that it is a very complex legal argument that presents itself constitutionally between the states, between the federal government branches. I mean, it just it’s it’s far reaching its effect on this, on these issues that seem very narrow, but they’re not. They actually can very easily be expanded on.

I agree with you on the I agree with you from the standpoint of I think this opens a Pandora’s box on what they can regulate because you’re talking about COVID who you’re talking about, you don’t. They don’t they’ve never done anything like this mandate mandating a flu vaccine, you know, and potentially flu has, you know, very, very similar characteristics, you know, to COVID, you know, and how it’s transmitted and the vaccines that are available, you know, to to try to prevent to try to prevent flu and transmissibility is similar and things like that that’s got a lot of similarities and they don’t mandate that sort of thing. But I agree with you. What is this from a governmental overreach? That’s my biggest concern about this is the governmental overreach. What is that going to extend to? What is it the next know? What is the next, you know, executive fiat going to look like, you know, what is what are they going to take away at that point? You know, you’re talking about mandating something on 100 million people in the workforce, none of which work for the federal government.

But you’re talking. I don’t go around here. A lot of ground around here like you’re

Talking about the federal government regulating that and, you know, taking that down a peg without, you know, without your congressional, your elected representatives having any sort of say so in that in that matter or your state or your state representatives or your your federally elected representatives having any say so in that matter, that that causes me great concern. I’m not necessarily opposed to public health. I’m not against vaccines by any stretch of the imagination. I think there’s a lot of very, very good benefits that many, many vaccines, including this one. But I’m also but I’m very much against government mandates that that, you know, that aren’t and aren’t necessarily the best option. I think there should have been probably several steps before we got to this point.

Well, look, you know, not just this state, but this country, it’s founded on individual personal liberties. You know, this is something that’s, you know, inherent in the Constitution and the Bill of Rights. And so these are very complicated civil rights issues, even though it seems like it’s not innocuous by any stretch of the imagination, but it lulls the public into kind of this like, Oh, we’re really just talking about vaccines or do you get it? Do you not? Or is it about a mask? No, these are much bigger personal liberty issues at stake, and it affects really the constitutionality. So the way the courts decide these issues really have very large implications for the law and how it transforms because we’ve got to understand our legal system, obviously is Bryan. But like people who are listening, it’s based on precedent, meaning that right courts, when they decide something, the other courts build on that it’s like building blocks, building a stone wall.

Those cases, those cases until we had the civil rights era, which was obviously a massive change to to the whole state of law. You had this Jacobson case, then you had the Buck Bell case, which piggybacked on. There was another case between Jacobson and Buck Bell that also mandated a vaccine. So the and they cited the case before. So like, you’re talking about legal precedent, you’re talking about cases siding on old cases. Well, they did it. Then it was OK. Then this is not that much more of a reach. So this should be OK now and then before too long, they’re there sterilizing people who are mentally handicapped. So, right, yeah.

Yeah, well, look at, you know, we always talk about judicial activism, and I don’t know if our listeners haven’t ever heard that term. It just basically means sometimes judges want to legislate from the bench. It’s, you know, I’ve heard this joke one time is that like presidents, they want to be the Legislature. The Legislature wants to be the courts and the courts want to be the president. So, you know, everybody wants to assume these roles. And really, the beauty of our constitution, the beauty of our legal system, even though most people don’t appreciate it, is this exact thing that these these roles, although defined, they do have some overlap. And that’s really what we’re talking about is when one one branch wants to overpower or overextend its rights, you know, and then, you know, bear down on somebody else’s duties. You know, there’s other branches duty. So like everybody, it’s kind of this constant balance that we’re trying to we’re trying to find, and this is definitely going to be one of those types of cases. One of these types of issues that will be far reaching right?

And then, you know, the right to bodily integrity is not necessarily absolute, but also the right to the right to the government. To mandate everything about your body should not be absolute, either, so

They’re going to start mandating plastic surgery.

So anyway, tying this back into, you know, obviously our divorce divorce situation. And let’s talk about this. This Tik Tok video that I that I saw here, you want me to, I’ll hopefully you’ll be able to hear this. So let me just play this and we can discuss it. If I have our.

With no mask, with my child,

I don’t know. Here we go. You hear that, OK, Sam.

Holy shit. Holy shit, there’s a lot of you know, I have a five year old son who is with his mother, my ex-wife and her entire family. Five days a week while he goes to school in her district. Also, as many of you know, she and her family are all anti-vaccine anti-mask. Guess what she admitted to while I was recording in my car on my property? I asked her point blank Are you covered vaccinated? She said no. I said, Do you plan to be? And she said, Maybe I don’t know. She said, maybe I don’t know. I now have hard proof of her admitting she is not COVID vaccinated around my son and takes no precautions whatsoever. And I can subpoena video of her being in stores unvaccinated with no mask with my child. I don’t know for sure, but I think this could really help my case.

Well, all right. Let’s go. Let’s go over that for a second. Number one, I don’t think putting a video out on TikTok about what your legal strategy is going to say. They’re going to help your case, but that’s, you know, that’s just for openers. That is,

Do everything

You can do and to. Do you really think that whether someone chooses to be vaccinated or not, vaccinated is going to and have an impact on a custody case? I mean, obviously when this first when this pandemic first hit we had, there was a series of people trying to prevent the other person from having, you know, their visitation time with the with the child because of the COVID outbreak. But the Supreme Court and every District Court and appeals court shot that down pretty darn quick. So what do you think about these vaccine mandates in custody cases?

Well, you know, I do think that I’ve seen litigation in the past where, you know, I tell clients all the time going to court and fighting. It’s like going back in time to high school when you were in high school. I’m sure everybody who’s listening was super popular. And maybe you know why you’re popular, maybe you don’t. Or if you weren’t popular, maybe you know why you weren’t popular, or maybe you don’t. But here’s the deal Court is the same way you walk into a courtroom, and sometimes because there are so many shades of gray in the way a court has discretion to decide things they can like you or not like you because you look like their uncle. You know they could hate you because you look like the last girlfriend that dumped them. You know, whatever. It can be the strangest things because they’re human beings in black robes. So while I don’t think that this would necessarily be determinative, I do think that it could play a part in litigation as you go forward based on kind of the overall pattern of behavior a parent might have. So if you look at it and you say the judges are going to decide a case on a child’s best interest rate and best interest is this big, huge span of who the hell knows work right? And so a judge can look at that and say, OK, maybe I don’t care that you get a vaccine, maybe I do. But are you introducing your child into a dangerous situation? Because as an example, I give it to you and it’s not the same, but it’s similar.

Hey, you’re over the age of twenty one and you can drink legally. Absolutely true. Do judges like it when you have possession of your child and you’re in a custody battle? Absolutely not. Absolutely not. It doesn’t matter how innocuous it is. The barbecue, if you’re sitting there and everybody’s tossing beers back and it just so happens. Somebody you don’t know, shows up, gets drunk, starts a fight your kids there. Guess what? Holy crap, that’s going to show up in your court case. And is it your fault? No. Can you drink legally? Yes. Does a judge maybe not like you because you took your child to a barbecue where people are getting sloshed watching a cowboys game? Maybe, maybe not. And so while I don’t think this is necessarily determinative on his TikTok video, I do think that what he’s looking at potentially has some legs to walk around for a bit. Because if you say, Hey, look, let’s say your child is unvaccinated under the age of 12, you’re unvaccinated, you get COVID, the child gets COVID and is ill. And heaven forbid, hospitalized. And then you’re going to go to court and say, Hey, you’re going to have to answer just as any other parent when you go to court, you have to answer for what you do for and and what you don’t do for your children. And so I do think that that this this has the potential to make a judge potentially like you or not like you, depending on their politics or their personal stance on the issue.

But to me, this sounds like, honestly, this sounds like a guy trying to use any anything that they can possibly use to say, Mom, you’re bad. This person I chose to have a child with is an awful person and I need to have. I need to have the children that that’s that’s what that screams to me. And that’s that’s, I guess, maybe my experience talking a little bit. I think it’s one thing if you let your child run up and down the COVID ward in the hospital, you know, without a mask on and without a vaccination, that’s one thing I think you choosing not to be vaccinated and taking your child to target is quite another. I mean, if you look at the statistics of children that are dying of COVID, it’s it’s more. Children in the city of Chicago have been shot this year than have died nationwide of COVID, so it’s not a high risk for children. It’s a risk. Don’t get me wrong, just like everything else of the flu is a risk. Covid’s a risk. There’s lots of risks for children out there. Is that going to be what wins you, your custody case? I don’t think recording the parent saying they’re not vaccinated and they take your child to Walmart or Target and and there’s unvaccinated people walking around and you don’t mask is going to be what gets you over the top of your custody case.

Now granted, could it be a factor? I guess. I guess it could be a factor, but I mean, they’re going to be yanking a lot of kids out of homes if the sole determining factor is whether or not. I mean, honestly, in that situation, if it was so bad, if this is so bad, shouldn’t child? Shouldn’t that father be calling child protective services and saying this? Parents putting this? Child in a potentially deadly situation by exposing this child to a deadly illness, that’s not what they’re what he’s claiming, he just claiming that she’s an unfit parent because she chooses not to have a vaccine. So and that can be a number of reasons why I’m assuming one of which could be a potentially a religious reason. And you know, there’s there are a lot of a lot of people that that have religious beliefs that are counterintuitive to medical certain types of medical treatment or a personal problem with it or whatever. Or maybe they’ve already had it and they feel like they have, you know, decent natural immunity, whatever.

I don’t know. Yeah, yeah. I agree with you. I don’t think in and of itself, it’s anything that’s going to win the day. But I do think that you know what I tried to tell people is going to court fighting about kids. It’s it’s like painting a picture, right? So it’s never going to be the single brushstroke that’s going to finish the painting or make you win or lose. It’s really the overall portrait that you paint for the court. And so if this is a part of a neglectful parent, you know, a very a parent who makes poor decisions, then yeah, it better be reasoned.

75. Not reason one.

Yeah, you know, but I do think that what I will always tell clients is know your audience, right? So if you know this judge has this be in their bonnet, then you know, take your swing. But if it’s something that most judges who have listened to a gazillion of their horrible, she’s horrible. They do this. They don’t do that. It really has to be something substantial, substantial and imminent threat to a child to really kind of have some meat and potatoes to your soup to get you any kind of relief if you’ve

Got all of these things and oh by if you’ve got all of these things, there’s alcohol use potential domestic violence and there’s a child’s unkept that the mom doesn’t pay the rent, the electricity gets cut off in the winter and all this stuff going on, you know, mom doesn’t make the kids go to school. And then on top of that, she doesn’t take care to make sure that they’re not at risk of COVID. I think they’re you’ve got you’ve got your case. I think if this is reason, number one, I think you’ve got a you’ve got a long uphill slog and it’s probably has the potential to backfire on you because, well, I think it would just backfire.

Yeah, I think that where it would change, you know, like potentially maybe his argument might have some merit is if you’re in a hot spot, right? So like you’re in a community, you’ve got 80 percent of the community is ill. The hospitals are overrun. You don’t. I’m saying then, OK, maybe then you have a shot to use something like this. But if it’s yeah, if everybody’s doing OK,

Say she has a lung condition, asthma is particularly susceptible to problems. Yeah, some some sort of comorbidity that could really cause this child to have a significant reaction. If that that that absolutely is an extenuating circumstances, but a normal run of the mill kid. I think you probably better come a little stronger to the table.

It’s a little scary. I think you’re going to be swinging with, but you know.

But I thought, it’s interesting because that’s what I guess you can find anything out there on tick tock these days. I really that’s we’re going

To be getting our news. Just tick tock, man.

I really hope that’s not the crux of that gentleman’s case, because if it is, then he better go back to the drawing board. So, yeah. All right. So good discussion today. I think we covered a lot of ground and a and a short amount of time. Hope it was interesting. How do we how do we get in touch with Sam? How where are you located and how do we get in touch if somebody wants to

Talk to you? If you need me, you can get a hold of me in the Dallas Fort Worth area. You can reach me, obviously, by our website at W w Dadaist. You can also reach us at the office at four six nine eight four four seven one eight one and you can reach me by email at S Sanchez at ASED. We’re also in Miami, so if you’re ever down there and need our help and give us a call

And I’m in the Houston Woodlands area, you can reach me. Office number is two eight one three seven four four seven four one hour B Abercrombie and ask our website, as always, is WW Aztecs. We can be reached there and hope you like what you heard. Please, please comment. We always like the comments. We always like the questions, so please comment if you’ve got a question or concern or you want something you want us to discuss. Happy to do it, and I thank you for the time today, Sam and we will talk soon.

Doctor, you good.

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