Advisory Opinions - A Conversation About Academic Freedom

Episode Date: July 21, 2022

David and Sarah return to discussions they had with their last guest, professor Akhil Amar, including living constitutionalism and the question of whether to let voters or jurists decide issues of justice. Then our hosts dive into the University of Pennsylvania controversy concerning the limits of academic freedom at the private Ivy League institution. Plus: the Biden administration’s bid to clarify abortion protections in the Emergency Treatment and Active Labor Act.   Show Notes: -AO: Akhil Amar Talks Liberal Originalism -University of Pennsylvania Law Dean’s Report Regarding Amy Wax -Biden admin looks to protect doctors providing emergency abortions, and warn those who don’t Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at fizz.ca. Maple syrup, we love you, but Canada is way more. It's poutine mixed with kimchi, maple syrup on Halo Halo, Montreal-style bagels eaten in Brandon, Manitoba. Here, we take the best from one side of the world and mix it with the other. And you can shop that whole world right here in our aisles. Find it all here with more ways to save at Real Canadian Superstore. Ready?

I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And we're going to hop around to a lot of topics today. We're going to talk about our tremendous last podcast. So it's rare that we do a podcast that people like so much that the first thing that we want to do is talk about our previous podcast. But that's how good our podcast with Akhil Amar was, a Yale law professor. Just really wonderful. Exactly what listeners had asked for. But we never had a chance to do our normal sort of post-conversation conversation about our guests. about the Johnny Depp juror controversy. So I'm sure you've been waiting with bated breath for that conversation. A Penn Law professor is in real trouble for extremely racially problematic conversations and comments. And so we're going to talk about that in the context of academic freedom. What

are its limits? What is it? What is it not? Also, Texas has sued the Biden administration about a Biden administration rule regarding emergency abortions. So that's a lot to get to. So let's start. Sarah, that Akeelah Marr conversation, if you've not listened to it, listeners, please listen to it. But I'll tell you, I've never seen more positive comments about one of our podcasts, to be honest. And for good reason. It was pretty incredible. What are some of your thoughts afterwards? So first of all, we do know that the sound was not great. We worked for about 20 minutes to get that sound better on his end, and there was just nothing more we could do. And we decided it was better to bring you,

Professor Amar, the best we could rather than not do it at all. But if we have him on again, we're going to work more on the front end to get that sounding good. So first, I thought his explanation of the conversations happening on the left were perfect because I think it just has more credibility coming from someone who's on that side to say, yeah, look, there's sort of this originalism that can lead to liberal outcomes. And then there's living constitutionalism, which for anyone who has been to law school, we at least had our Federalist Society Halloween party was always called the night of the living constitution. I love that. And then again, there's this version of just, um,

and this is really the living constitutionalism idea, the Dworkian idea that you're just trying to get progressive results. And the nine justices and the lower court judges below them are these platonic guardians overseeing society who simply know what is better with some guidance from constitutional documents, kind of maybe sort of where it's helpful. And the reason that I think it was helpful the way he talked about it was because, again, I think it actually provides context to what's happening on the right. provides context to what's happening on the right. That because that had been really a primary framework on the left for 40 years, I mean, basically coming out of the Warren court, either you have sort of the Kagan preserve the Warren court, hence why she likes precedent,

or just keep reaching for progress, whatever those platonic guardians define as progress, with no real regard to the massive mistakes that the Supreme Court has made in the past. I do also love, because he is both a historian, a professor for the undergraduate department, and the law school, he is able to say, for all of the amendments, for all of the major moments in American history, frankly, the Supreme Court has gotten it more wrong than voters have. And so the platonic guardian idea is so deeply flawed. And then for the right to be creating their own version of the platonic guardian ideal, which is what I think is at its core the Adrian Vermeule common good constitutionalism,

I think that's important because it shows you where it came from. And that frustration on the right that the left, sure, maybe there's a few originalists now, but for the most part, they're either trying to preserve the Warren court or be platonic guardians seeking their own truth and good. And then the right has had its hands tied behind its back with all of this textualism and originalism. And it's actually good when we come out with policy results that we don't actually like,

that we don't think are good for society because that's what the constitution says, that they want their own version of what the left has been doing for 40 years. Again, I hope it's been very clear over the course of this podcast that I think that's bonkers town. But it provided, I thought, a really helpful context

for how the primordial ooze from which all of these are created. Yeah, there were two parts that stood out to me. One of them you just mentioned, which was sort of walking through how the voters have been better than the justices on multiple justice issues, which I think is quite instructive for those who are really worried as maybe the current court sends more issues back to the voters.

And so what we're seeing both in the Dobbs decision and also what we're seeing with some of the judicial skepticism of the administrative state, which is short of the judiciary, the part of the government most removed from the voters, maybe we should have more confidence in the voters than we do in either administrators or justices. So I thought that was really interesting. And then what was just so fun to me was that he explained my own legal education to me better than my own legal education was explained to me at the time by putting really that frame, this sort of dorkiness frame around the idea that what the Constitution does is simply articulate very broad values.

It's not really a code of laws in and of itself, but sort of more like a mission statement with very broad values that are to be interpreted and applied by the judges. That was my legal education at heart. Not all of the professors that I had, but the vast majority of the professors I had, that was exactly my legal education. And for him to explain it in five minutes for folks, I thought was really interesting. And then I said I had two thoughts, but I really have three.

really interesting. And then I said I had two thoughts, but I really have three. The third was, what an interesting model he presents for how to engage vigorously on ideas while still respecting people. Almost too much, right? Like the amount of prefatory stuff he wants to put in there to say, here's, you know, and especially this, I think, came out when we got to the conversation about the independent legislative theory and the reforms to the Electoral Count Act. You know, there was a whole long conversation about why he should have credibility with those on the right that I thought was incredibly effective. Yeah. Yeah. He's like, I think Dobbs was correct, at least on the narrow legal question. I think Bruin was right. I think Citizens United was right. So when I tell you that Bush v. Gore is trash, is a judicial fart in the wind, believe me when I say it. And then when I tell you that this independent legislative theory is stupid, ahistorical, and wrong, believe me. And I will say, I do wish there had been more of that in

the law review article that he co-wrote, of course. So he said he's not even the primary author. He noted the alphabetical order, rather, that it is not an alphabetical order, meaning he is not the primary author. But I felt like it was easy to dismiss that law review article as- A polemic. Yeah, maybe a little bit. And I thought his explanation on the podcast was actually very good. And there's, of course, we couldn't get into the entire law review article, but there were also a few very persuasive pieces of it in terms of constitutional interpretation, looking at, for instance, another clause of the Constitution where it talks about department heads

for the appointments clause. And he then creates something called the independent department's head theory, which, of course, makes no sense. The department heads report to the executive if you believe in the unitary executive. The idea that the president of course is in charge of the entire executive branch as per article two, then the independent executive branch head, department heads doesn't make any sense. He says, same with the independent state legislature theory. They are of course bounded by the Constitution the same way that their state constitutions, I mean, the same way that the department heads are bounded by the executive are bounded by the U.S. Constitution. I, in general, have thought that the independent

state legislature clause is a close call on some of the more outlier questions, like this North Carolina case, which I think is really well teed up where the courts themselves draw the maps. But he definitely persuaded me on all of the less close calls, all of the more like, yeah, look, the Constitution says you can't do this. And the legislature says they want to do it anyway, like, no, they are bound by the constitution the same way they're created by the constitution. How many members are in the state legislature, what their veto overrides are, all of that. So I'm, I am still looking forward to that case. Maybe we'll have to have him back after. And his disagreement with judge Ludig over who should be in charge in a contested election,

I was totally persuaded that it should be Congress. I am, however, not at all persuaded that it ever will be Congress again. Yeah. No, that was interesting. And it makes me want to get Judge Lutig on the podcast, which- We can do that. Yeah, which is overdue anyway. He should have been on this podcast already. So-

Yes. Yeah. Yeah. So we need to do that. So we'll get Judge Ludig on this podcast. Judge, if you're listening, expect an email post haste. Done. Yeah. I thought, anyway, I just mainly wanted to start this podcast by saying, listen to the previous podcast if you haven't done it. So educational. I got some notes, by the way, from a couple former students of Professor Amar's, and they were like, yes, I'm glad you got to experience the Amarification of your world for an hour.

So true. And I mean, have we talked less on a podcast ever? No. I was just like, no, keep talking. I know. Yeah. I less on a podcast ever? No. I was just like, no, keep talking. I know. Yeah. I don't even need to be here. Like, it's just like, hand it to him.

I know. It was great. We just handed the baton over, but it was fantastic. I loved every second of it. We'll fix the audio issues for next time. Thank you for bearing with us. It was worth it to strain to listen. So do that, even if it's a bit of a strain.

Yeah, absolutely. Okay, so do we want to go from the high concept to the low? Really? I don't know about you, Sarah, but I got a number of notes asking about Johnny Depp and Amber Heard. I'm so excited to talk about this because I get a lot of things wrong about the law and I got this one totally right. We'll take your victory. Take your victory lap. Tell us what happened. Okay. So the herd team files this letter with the judge and says, this is quite recent. Um, a couple of weeks ago, definitely after the trial, after the verdict, all of that. And the letter says, we need a mistrial.

This whole thing has to be undone. One of the jurors impaneled was not who they said they were. Bum, bum, bah, huge drama. And then I read the letter and the letter says that a juror with the same name who lives at the same address as the juror who received the juror summons was actually impaneled. So we have, and I'm going to get the ages slightly wrong, but the 77-year-old John Smith was the one who was summoned. 55-year-old John Smith, also of Mockingbird Lane, is the one who shows up and then is the one that's impaneled. And they're like, you can't, no, it's the wrong person. This was fraud and it tainted the whole process and we have to have a whole new trial. And I was like, whoa, whoa, whoa, that's not how that's going to work. And let me tell you why. One, we have no evidence of why the wrong

juror was impaneled. For instance, fraud would imply that the person knew that the summons was for their father and then showed up and lied about who they were in order to get on that jury. There is nothing in that letter that showed that the letter that was sent, the summons, specified which John Smith at Mockingbird Lane was supposed to show up. Was the birth date on the letter that was sent, the summons specified which John Smith at Mockingbird Lane was supposed to show up. Was the birth date on the letter? Not in their filing, at least. Two, when they did show up,

were they asked, are you John Smith birthday X at Mockingbird Lane? Not in the letter. Three, you still had voir dire. You got to ask all the questions you wanted. You had your peremptory challenges, which you can strike someone for any reason. And then you had your challenges for cause. And I would think a good challenge for cause would be, that's not a 77-year old. That's not the juror who's here. And don't forget, each side has each juror's little,

I'm forgetting the word for it, but their piece of paper that would have their vital information, basically what was on their jury summons. So they had every opportunity to do it that way. And none of that's in this letter. And so I saw people on Twitter that was like, this is a big deal. Oh my God, they're going to have to do the trial over again. And I was like,

harmless error. Where can they show that there was fraud, that they didn't have an opportunity, or that it changed the outcome in some meaningful way? Which again, if you could prove the fraud, they really wanted to get on the jury, maybe you could get there. But short of that, anyway, so for all of those reasons, I was like, no, I see nothing here. I see a lot of smoke. They want you to assume that there was fraud. They want you to assume that there was all this, but none of it's actually in there. So fast forward then to the depth team's answer. Wah, wah, wah. They knew it was the wrong juror. The Hurd team knew it was the wrong juror

before the jury was seated. You'd just like with elections, David. Yep. You don't get to wait until after you find out what the election results are to challenge the rules and say that they were unconstitutional. You have to challenge them when you find out about the rules, when you know the rules and say that they were unconstitutional. You have to challenge them when you find out about the rules, when you know the rules are constitutional,

not when you get to find out that you lost and then get to go back. And that's exactly what happened. The judge threw out the whole thing, and there wasn't even a big to-do about it. But I do have to say that the Depp team's response, it was a little snarky. And I generally don't like snarky legal documents. But this one line was very effective. And it said, in a rare moment of candor, the herd team acknowledges that they knew that the person sitting was not the one who was summoned ahead of the trial. And I was like, ooh. sitting was not the one who was summoned ahead of the trial. And I was like, ooh. And again, after a whole trial, after the judge has dealt with the legal teams, a subtly snarky line like that could be very effective. And it was in this case. This is just a good practice tip. Preserve your objections, y'all. If you can't sit on your objection, do not sit on your objection. If you see something wrong, you have to assert it immediately. Don't pocket it and think, aha, after everything's over, I'm going to play this card.

Nope. Got to play your cards when they're dealt to you. To be clear, if they had raised the objection, that person wouldn't have been seated. So they were, in that sense, it's, that person wouldn't have been seated. So they were, in that sense, it's a little bit of a catch-22. The only possible opportunity they were going to have is to hold this in their pocket because they have raised their hand and said, that's not 77 year old John Smith of Mockingbird Lane. 55 year old John Smith was not going to be seated on that jury. Yeah. Yeah, true. And the fact that they didn't object tells you

right from the get-go that it wasn't that material. Because you don't go ahead and lose a trial on purpose to preserve an objection to the lost trial, right? So you're trying to win. And if you thought that he was going to prevent you from winning you object right then and there so or use your peremptories or use your four causes none of that happened this was a loser from the start and people need to stop jumping at every court filing until they see the other side's response which in this case i thought again like there was just nothing in that letter that actually met any of the standards for a mistrial, which would be so high. It's so high. Yeah. And you know, the truth of the matter is it gets higher, honestly, the longer and more

complex the trial is. Of course. Yeah. Once you've been through a month, two months. That was a lot of time. Yes. And very expensive in terms of court resources. Exactly. Yeah. Once you've been through a month, two months. That was a lot of time. Yes. And very expensive in terms of court resources. Exactly. Exactly. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken.

Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Let's talk a little bit about academic freedom. Let's talk a little bit about academic freedom. Penn Law School has begun a process, a disciplinary process against Amy Wax. So Amy Wax is a tenured professor at Penn Law School who has been, Sarah, how would you describe it? On a bit of a journey, would you describe it? On a bit of a journey, on a bit of a journey into a pretty dark place.

And so I'm going to go through some of the things that she has done. So what the dean of Penn Law School has done here is written a letter to the faculty senate, and the dean is Theodore Ruger, has written a letter to the Faculty Senate to convene a hearing board to review whether Professor Amy Wax's conduct constitutes a major infraction of university standards under the faculty handbook. And Penn Law School, just to be clear, is a private law school, but it has broad academic freedom protections for its professors. So the letter lays out a number of statements. Now, this is going to be very important as we talk about this. And the reason why I wanted to bring this up is because I wanted to use this as a launching pad to talk about academic freedom more generally, which is a really important conversation. It's not that Amy Wax is

a particularly important person. It's that this is going to raise a very important conversation. And so she has, the letter is broken up into sort of on-campus activity, things that Amy Wax has said and done on campus and off-campus comments. So, for example, we'll talk about some of the on-campus conversation. So one of the allegations, telling a black student, Ayanna Lewis, who asked whether Wax agreed with the panelist, John Derbyshire, who was a panelist apparently on a university panel. Panelist John Derby stars statements that black people are inherently inferior to white people that, quote, you can have two plants that grow under the same conditions and one will just grow higher than the other, unquote. Telling black student, I'll stop using the names even though

they're public, but telling a black student that she had only become a double IV because of affirmative, quote, because of affirmative action. Telling another student that black students don't perform as well as white students because they're less well prepared and they're less well prepared because of affirmative action. Telling another black student that if blacks really and sincerely wanted to be equal, they would make a lot of changes in their own conduct and communities. Commenting in class that gay couples are not fit to raise children and making other references to LGBTQ people that a student reported evinced a, quote, pattern of homophobia. Inviting on campus Jared Taylor, one of the world's most prominent white supremacists,

for a mandatory lecture in her law school course. To prepare for the class, Wax assigned an interview with Enoch Powell, a man who was ousted from his leadership role in the British Conservative Party for his inflammatory and racist public speeches. Other things like telling another student that Hispanic people don't seem to mind living somewhere where people are loud. Okay, so this is on-campus stuff. Okay, that last one's weird. That is really weird. It's really, really weird. And so then she has said a lot of things in public statements off campus, giving speeches and writings, etc., such as stating, quote, our country will be better off with more whites and fewer non-whites.

None of this stuff is subtle, folks. None of this stuff is subtle. Stating that, quote, women on average are less knowledgeable than men, women are, quote, less intellectual than men, and there is some evidence for the proposition that, quote, men and women differ in cognitive ability. The Asians have a, quote, indifference to liberty, lack, quote, thoughtful and audacious individualism, and that, quote, the United States is better off with fewer Asians and less Asian immigration. Here's another one. I mean, quote, Brown. I think we've got it. Yeah, we got it. Okay. So, Sarah, first your sort of high-level thoughts about this, and then let's get kind of specific because it makes a really big difference,

not just whether something has occurred, both where something has occurred on campus and off campus, but also the nature of the on-campus speech. So kind of put this in perspective for us a bit. Right. So in that list, I hear very different problems. Yes. Some of those are legal problems for Amy Wax that are not going to maybe stand up to defenses of academic freedom. And some of them are problems for Penn in the sense that, you know, when you hire someone and give them tenure and you decided to have tenure with your faculty and that contractual relationship, some of those things are just part of the contractual academic freedom that you granted a professor that you probably regret hiring and getting tenure to now. And that maybe that should have us questioning the system

of tenure. I'm very open to that. For instance, at Midland University in Nebraska, they don't have tenure. Small liberal arts school, about 1,600 students. You probably haven't heard of them, except you might have heard of their former president, who in fact got rid of tenure for the faculty. You want to take a wild guess? Hmm, Midland University in Nebraska? That would be right. Yes, yes. One Senator Ben Sasse? That would be right.

Which is all to say, it doesn't have to be this way, but if you're going to have it this way, that's contract law, and you created a contract with this professor. So, for instance, in class, inviting a speaker who students find offensive, that is the core academic freedom stuff. Those speakers sound obviously pretty offensive. I'm not totally sure what their value is in a law school setting to hearing their ideas,

but it doesn't matter. None of that matters. Core, core issue. On the other hand, outside of class, or actually for that matter, inside of class, telling a specific student that they're only there because of the color of their skin, which actually makes them inferior, not a core academic freedom moment because that's not pedagogical. That's insulting. And it's designed toward a specific student. Yes. Very different than a teaching moment in the classroom. Even, I mean, you could imagine a teaching moment in

the classroom that does insult a specific student. This doesn't sound like it was that. So those are my two main examples. Incendiary speaker that you brought before the class that they don't like, SOL. Insulting a specific student because of their race, implying that they're, not implying, saying that they're inferior and don't belong there, outside that core academic freedom sphere. And then the speech outside of the academy entirely where she's engaging, like she's being interviewed in a panel or on the radio or whatever, that's going to be, as a general matter, extramural, considered what's called an extramural utterance, is almost always going to be predicted. And I almost want to say always, but I'm going to say almost

always just because always is a big, big word. But I'll give you some examples from my time at FIRE, Foundation for Individual Rights and Education, both when I was a member of the FIRE Legal Network and when I was president at F. Most famously, Fire has had a long commitment that says it does not matter whether your speech is on the left or on the right. It doesn't matter if your speech is vile or virtuous, if it is protected by academic freedom at your institution or protected by the Constitution. Now, the Constitution doesn't apply here to Penn. It doesn't apply to professor speech at Penn because Penn's a private university, that we're protecting speech at fire. We're protecting speech. And so we famously had a

case involving a professor named Ward Churchill from CU Boulder, and we've talked about him before on this podcast, but he famously said that the 9-11 victims, the people who were murdered on 9-11, were little Adolph Eichmanns, okay? That is absurdly offensive, just absurdly offensive. It's also protected speech. It was an extramural utterance. In that circumstance, it was protected by traditional notions of academic freedom, as well as by the Constitution, because he was a professor at CU Boulder speaking on a matter of public concern. And oh my goodness, Sarah, did people get upset at us for defending his free speech. Oh my goodness. but it was protected speech. Now, that does not mean, and this is in your distinction

on the speech between here, here's a panelist that's going to invade, engage in inflammatory, provocative speech versus here's my personal insult of you, student. You don't have the academic freedom to commit a civil rights violation. I was just going to say, you're going to have two things coming in conflict. One is law and one is contract. And violating the law is going to be an out clause in that contract. Right, exactly. So teachers, professors are still under the obligations of civil rights law of Title VI and Title IX. And so if you are engaging in targeted harassment of a student, then the school is going to be able and indeed might be legally obligated to take action to prevent targeted harassment.

And so that's a circumstance where there is a big difference between a targeted statement insulting a particular student on the basis of race versus a discussion of affirmative action more broadly that some people might be offended at the content of. And just to, again, put this in context, when I went to law school, Sarah, we had a lot of radical, pretty radical left-wing speakers who'd say some pretty radical things, including including really deeply anti-religious on occasion, really anti. But the reality was, it was a discussion about issues, and they had offensive ideas. They didn't turn to me and say, David, what's your faith? Well, I'm a Christian, and then proceed to directly and personally target me because of my religion, that never happened. And it never crossed my mind that what I was hearing wasn't

encompassed by academic freedom. But those targeted comments, when you target somebody specifically, that's when you're getting into a bit of a different animal here. That's when you're getting into a bit of a different animal here. Now, the interesting question is what you'll often see with some of these university disciplinary proceedings is that their faculty handbooks are not necessarily brilliantly drafted, Sarah. drafted, Sarah, they'll, yeah, they will contradict each other. They'll contradict themselves, essentially reminding people that they're ambassadors of the university, for example, and at the same time granting them wide latitude. So what, what do you do with that? What do you do with that? But I think it's going to be, this is an interesting case because it is a mix, there is a mixture of what looks a lot like targeted harassment with just generally offensive speech that is covered by traditional

notions of academic freedom. And it's going to be really difficult to pull out from that, what action are we taking on the basis of the targeted speech? And we pinky promise that we're not taking action on the basis of everything else that makes people angry, it's going to be interesting to see what happens. Based on the Coach Kennedy case, I would suggest that they hire an outside law firm, a very good one, to draft that final letter. And may I suggest that they quote extensively from Title IX, for instance, severe, pervasive, and objectively offensive. There should be one paragraph on the severity, one paragraph on the pervasiveness, and one paragraph on objectively offensive. and all that other stuff that they're talking about, which sucks and would make a normal person think that Professor Wax should not be teaching there,

leave it out if it does not go to one of those three things. The severity of the harassment, the pervasiveness of it, and the objectively offensive nature of it. Good luck. I feel like the instinct is going to be to list all the things you listed and say you violated your tenure and you're out. But again, that tenure contract will be binding

with those out clauses of, for instance, violating the law. Well, you know, interesting postscript to the Ward Churchill situation was people started to dive into this guy's background and everything after he said what he said. And guess what? They found out he was a plagiarist. So then the question becomes, now what are we going to do? What does the university do? You're going to punish plagiarism. You have to punish plagiarism. That goes to the core of the integrity of the academic enterprise. But is he getting extra special severe punishment because it's flavored with a little offensiveness on top? Or is the university cleansing itself of any

concern for his constitutionally protected speech and narrow casting on the plagiarism. And then the question is, how would you know the difference when there's actually not been very many plagiarism incidents at CU Boulder? So there isn't a track record of the kinds of punishments. It's a mess. It's a mess. But keep your eye on this because this is going to be an, it's going to lead to a rather interesting and public discussion of academic freedom going forward. And it's also extremely relevant because we're in a cycle of outrage based complaints and terminations directed at professors. FIRE has a Scholars Under FIRE database that has hundreds of examples, and many of them passed through the public debate with nobody noticing at all. This one will be noticed, as most of these Ivy League disputes are.

And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every

mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting aurafFrames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay, Sarah, next.

Biden administration? Biden lawsuit? Biden lawsuit, yes. You studied this. Please tell our listeners. So interestingly, I think the Texas lawsuit actually made more headlines than the Biden administration letter, guidance letter went out. But in the wake of Dobbs, remember the Biden administration is reeling around trying to

be able to say that they've done something. Joe Biden, of course, comes out immediately and says, like, only Congress can actually codify a right to an abortion, codify Roe. But he heads over to his health and human services department and is like, figure something out. So they do, and they send out a guidance letter on the Emergency Medical Treatment and Labor Act, EMTALA. We're just going to, I don't know, call it EMTALA for this podcast. That sounds good to me, yes. Yeah. And this is not a regulation because then they would have had to go through the Administrative Procedures Act. This is a guidance letter. You've probably heard about guidance letters in the context, for instance, of sexual assault allegations due process stuff during the Trump administration.

They rescinded the Obama administration guidance letter, sent out their own guidance letter. So anyway, this is a guidance letter about EMTALA. EMTALA, by the way, is why hospitals can't turn away someone who can't pay, who is in really bad shape. It's been around a long time. I think it is overall a really important part of our social safety net. It basically guarantees ER medical access, regardless of ability to pay. That's right. It was passed in 1986, as it turns out. Requires stabilizing treatment for an emergency medical condition.

And here's the definition of emergency medical condition. A medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably expected to result in placing the health of the individual in serious jeopardy, serious impairment of bodily function, serious dysfunction of any bodily function or part. I don't know the difference between impairment of bodily function and dysfunction of bodily function, but I'm sure someone out there has a lot to say about that. And to stabilize, by the way, defined as assure within reasonable

medical probability that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. All right. So the Biden administration sends out a letter that says, here's the title, reinforcement of EMTALA obligations specific to patients who are pregnant or are expecting, experiencing, sorry, pregnancy loss. It says that this is only to remind hospitals of their existing obligations under federal law. And by the way, the hook for this is Medicare funds, of course. And it says that a provider must perform an abortion if, quote, abortion is the stabilizing treatment necessary to resolve an emergency medical condition.

So in some ways, David, this is just repeating what EMTALA says and then adding the word abortion at the front. So if you must provide stabilizing treatment necessary to resolve an emergency medical condition, this is saying if abortion is that stabilizing treatment, you must provide the abortion regardless of state law. The EMTALA preempts state law. Right. So a few things. First of all, I think EMTALA almost certainly does preempt state law. The question is, is that what EMTALA says? So Texas has sued because their law says the Human Life Protection Act, a person may not knowingly perform, induce, or attempt an abortion. It does not apply if the woman on whom the abortion is performed, quote, has a life-threatening physical condition arising from a pregnancy that places her quote at risk of death or poses a serious risk of substantial impairment of a major bodily

function. Unless the abortion is performed. I'll be very honest. I'm not totally sure where the sunshine is between all of this. The Texas argues that there is sunshine and therefore that they needed to go through the Administrative Procedures Act or that it's not preempted or they have a whole, I mean,

or the 10th Amendment, like they throw the kitchen sink at this. But I'll admit I'm a little confused if someone walks into a hospital and they have a life-threatening physical condition, then the Texas law doesn't prevent the abortion. And so the question is, is there something short of poses a serious risk of substantial impairment of a major bodily function compared to serious function? I mean, you really have to compare this

language here. Yeah, it's amazing. Yeah. And maybe there is some sunshine, in which case, okay, then Texas has standing, certainly. And then the question is, yes, but if an abortion is the stabilizing treatment needed to resolve the emergency medical condition, then it's within EMTALA, in which case I do think EMTALA preempts it. So I think this is more of a press release lawsuit at this point, David, staring at this for a while. I don't see the legal problem with what the Obama, sorry, what the Biden administration did, but that they didn't do much is the point. Simply saying that if someone is in a life-threatening condition and a state, for instance,

doesn't have exceptions for the life of the mother, which some of these states may not at some point, and I think those will be in legal jeopardy for totally different reasons. They're saying Imtala preempts that if that person walks into an emergency room that accepts Medicare funds. I think that's just correct. Yes, I think that's just correct as well. And like you, when you talk about the difference

between what was it, serious or substantial? I mean, they seem sort of like synonyms, but yeah, it does seem like a press release lawsuit, but a really kind of silly press release lawsuit in some important ways from the standpoint of you're just evaluating this from a press release standpoint. if you have followed sort of Dobbs Twitter since Dobbs, and at first, I'm sorry, because Dobbs Twitter since Dobbs has been just awful, you'll see the following argument is taking place. On the one hand, you'll have a lot of folks who are pro-choice are saying, wait a minute, all of these states have laws that do not clearly protect the life or physical health of the mother. have laws that do not clearly protect the life or physical health of the mother. They don't do it. That's why a 10-year-old had to cross state lines from Ohio to Indiana to receive an abortion in a life and health threatening situation. And then you have a

lot of pro-life folks saying, no, no, no, you're being disingenuous and bad faith interpretations of these statutes. Show me the statute that doesn't protect the life or health of the mother. And so you're having this going back and forth, back and forth argument where the pro-life folks are saying to pro-choice folks, you're distorting the law. And then here comes old Ken Paxton going, look at that federal guidance that protects the life or health of the mother. Leroy Jenkins, I'm going after it. But how dare you say we don't protect the life or health of the mother? It's weird, Sarah. It's just a little weird to me.

Yes, and? So part of their argument is that EMTALA does not confer a right to an abortion. Agreed, Texas. Agreed. But nobody's saying that it does. And the question is whether the stabilizing treatment would be an abortion. And if it is, you can perform it regardless of the state law in question. Remember, this wasn't a guidance sent just to Texas hospitals. This was national.

And so I think in part the Biden administration would say, yeah, I don't think EMTALA protects anything that Texas wasn't already protecting. Again, I'll read you now side by side. He's a statutory language. Okay. So this is Texas. Risk of death or poses a serious risk of substantial impairment of a major bodily function. impairment of a major bodily function. Here's EMTALA. Serious impairment to bodily functions. Serious dysfunction of any bodily function. So Texas says only for a major bodily function can you have the abortion. EMTALA says serious dysfunction of any bodily function. But the serious, I think, anyway. Okay, maybe there's some sunshine there. I would want a specific example.

And again, to your point, this is the fight? Right. Whether the woman is simply going to have serious dysfunction of a bodily function or whether it's a major bodily function determines whether a hospital is going to terminate the pregnancy. I think there's other things to fight about on the

pro-life community that are way more important. Yeah, no, completely agree. And of course, it's not saying that you have a right to an abortion in an ER any more than Imtala says you have a right to an appendectomy. But says you have a right to an appendectomy. But you do have a right to an appendectomy if that's the treatment for appendicitis. That's right. That's actually such a good example because if you have appendicitis or, you know, your appendix just ruptured or something, that is the only treatment. There's not some other treatment that you do for that. And same situation here. Texas seems to be implying that those hospitals should be performing something else. For instance, and I hate to keep using this example because I understand all of the complications around it, but if you have

a ruptured ectopic pregnancy, the answer is to remove that. And by the way, probably your fallopian tube. There's not some work around where we stabilize them and send them somewhere else. Now, footnote all of that. I understand that many of these state laws very clearly define abortion as excluding the treatment of ectopic pregnancies because abortions are defined both implanting in the uterus and a viable fetus. both implanting in the uterus and a viable fetus. So obviously an ectopic pregnancy would not be either of those. But as we've seen before, some of the states screwed up.

One state in particular screwed that up. So again, the EMTALA reminder to me is a press release from the Biden administration. And now we have a lawsuit from Texas. It's a press release from Texas. All much ado about nothing. I think this case will get tossed. Now, here's one last interesting question that I've been talking to and I've heard from a number of doctors about this very question. And I want to bounce it off you, Sarah, and just get your

immediate reaction to it, that I've heard from a number of doctors who say the following. immediate reaction to it that I've heard from a number of doctors who say the following. I am very aware that state law protects the right to an abortion when the life of the mother is at stake or that, you know, the language from Texas, a serious impairment of a major bodily function is at stake. But what, as a practical matter, a doctor is still going to be deterred from exercising their best medical judgment in that situation because the person who ultimately decides whether or not a, the person who ultimately decides whether or not the abortion was justified isn't a doctor, it's a prosecutor. a doctor, it's a prosecutor, that a county prosecutor will review the medical file and determine whether or not a life or health abortion was truly justified by life or health. And therefore, that's going to have a chilling effect on life-saving medical care. Now, I ask this question with full knowledge that that is not the vast majority of abortions, right? That is not the vast majority. We're talking about the small minority, but that is the

response I've heard from a number of doctors that say, wait a minute, what this is really saying, the hidden line in the statute is when a prosecutor determines or when a jury determines, a prosecutor determines whether to bring charges and the jury determines whether to convict. I guess I have two responses to that. One is just on the practical side. I hope doctors aren't putting their patients at risk over a maybe prosecutor down the road that seems pretty hypothetical. Yeah. However, I get it. And then my second response is, but we've had this line drawing problem the whole time, at least for the last 30 years. So for instance, the viability line, who determines

whether it's viable? Well, the doctor in the case performing the abortion, but written into those laws is the same thing. Was it viable according to a prosecutor? And I didn't hear these same concerns three months ago about that possibility. So obviously people were able to draw medical lines before this. Prosecutors were able to not prosecute cases that were on that line or close to it and rely on medical advice. And of course, yeah, a prosecutor could bring charges, but they're going to need to bring in expert medical testimony during the trial. So there's several protections written in. Do I think that makes them good laws? No, it doesn't. But in terms of the actual legal jeopardy,

I don't know that I'm that sympathetic. Although, you know, people were saying that that story about the 10-year-old was fake because nobody would force a 10-year-old to cross state lines. Turned out, for the most part, they were like, no 10-year-old was raped. That's just so unusual. What are the chances? It turned out it was totally true. Related to that, there's been another story of a woman whose pregnancy was not going to be viable. And I've had this happen in my friend group, I will just say, where you go in one day, there is a little bit of a heartbeat. You go in the next time, there's not a heartbeat. You go in the next time, there's a little bit of a heartbeat. You go in the next time, there's not a heartbeat. You go in the next time, there's a little bit of a heartbeat. You go in the next time, the fetus has died. And then you remove it. At what point along that line are you allowed to remove the fetus? And in one of these examples,

the doctor basically refused to remove the fetus until there was absolutely no heartbeat, you know, whatever it was, multiple times in a row, instead of what they normally would have done, which is remove the heartbeat that, you know, first time, sorry, remove the fetus, the first time where there is such a weak heartbeat that there is no medical chance of this being carried a term, especially when you're talking about an eight, nine-week fetus. This isn't a 30-week-old fetus. You know, to the extent, like that was a doctor who put off something that they would have done pre-DOBS, pre these trigger laws that they're not doing now. Yeah, I don't like that. I'll just say. I think we're going to go through a period of time where there is

a necessity of refinement of a variety of laws that were originally passed with no real belief that they were going to go into effect. And so they, because they were passed without any real sense that they were going to go into effect, some of them, and again, we're talking 50 states here, so we're not opining on your state's law. Some of them were not drafted with the care necessary to deal with foreseeable situations that could jeopardize a woman's life or health. And so that we're going to see some incidents. And, you know, a number of lawyers I respect came to, that I respect on both sides, came to completely different conclusions about what the Ohio law, the Ohio abortion law,

permitted or prohibited with regard to the 10-year-old. Because some people were saying under Ohio law, she didn't have to cross state lines. And others were saying, show me in the statute where she didn't have to cross state lines. By the way, I kind of agree with the people who said, show me in the statute. You know, folks are arguing that it was a serious, it could cause serious bodily function harm. Not to get too graphic here, but 10-year-olds arguably are, and again, I want to be very clear, 10-year-olds arguably are, and again, I want to be very clear, physically evolutionarily more equipped to carry a baby than, say, a 45-year-old or 50-year-old woman in terms of bodily function. So I definitely don't think it at least easily falls under that. I think you can argue it. It absolutely will affect her bodily function. That's not the question, but all pregnancies do that. And so the question is, how in the Ohio law are you

drawing a line for a 10-year-old that somehow wouldn't apply to a 12-year-old? Or maybe it does apply to a 12-year-old, but it doesn't apply to a 13-year-old, a 15-year-old? Where is that line drawing happening in the Ohio law? I don't see it. And if I had been advising a doctor or her parents, I would have advised going over state lines, sadly. You know, and I think that this, and again, with the statement that I said earlier, none of these circumstances involve the vast majority, the vast, vast majority, but the fault lines and laws are exposed by edge cases. Those are the things that expose the fault lines and laws. And also edge cases have disproportionate public impact. And there's just

no question about that. And so if you're on the pro-life side of the aisle, you want these laws to get stuff right. You want these laws to be sharply drafted, well drafted, clearly drafted, because you don't want to be in the position where you're, you know, a lot of people found themselves over the last week or so saying, A, the hoax, hoax never happened. Whoops, it happened. And then B, oh, well, it would totally have been covered by the relevant statute, would it? And that's not the position that you want to be. And I would be very happy to hear from listeners who say, no, actually, it would be totally covered by the statute. Shoot it in the comments and be precise.

And I'd love to read it. Now, I will say, and I wish that a doctor in Ohio had performed that abortion as a test case. But how can you ask someone to put their medical license in jeopardy, their potentially liberty in jeopardy? So I'm not surprised, again, that they went across state lines. I would have advised that was the smartest, clearest legal decision to make, but it would have been a good test case, David. Right, right. Yeah. And also just my absolute grief for that 10-year-old and her family old and her family. We talk about these in sort of clinically legal terms. And I just want to be very clear that I in no way don't understand the gravity of what we're talking about. It's outrageous. What, what happened to her at every

step of the way, frankly. Oh, it's horrible. And I'm so glad you said that because one of the things you do when you talk about law is you often, it's kind of like in a way a legal podcast can be a lot like a medical podcast in some sense in that you say, doctors will talk in very clinical terms, a patient presented with X, Y, and Z symptom. And in that sort of dry medical language is an enormous amount of pain and suffering. And so, you know, lawyers will say the defendant allegedly did A, B, and C mind-numbingly horrible thing. And you present it in that sort of clinical language or the victim suffered A, B, and C mind-numbingly horrible injury, and you present it in these sort of clinical ways, but that should not obscure the underlying awfulness.

So can we, let's not end on that. So David, we can't end on that. No, I'm just going to say. So if my voice sounds a little hoarse, I didn't get to tell you why. I sat third row. I've never had seats like this for a concert in my whole life. It's the most indulgent thing I've ever done. Third row for Toad the Wet Sprocket, Gin Blossoms, and Barenaked Ladies. Oh my. And I definitely, if I wasn't the youngest person there, I mean, there was basically a gap. Some people brought their children. They're like adult children who had no idea who these bands were, or maybe they listened to them on classic stations or something. It was awesome. The Gin Blossoms in particular were so

good. Oh yeah. I mean the song, you know, Hey Jealousy, that, that was like the anthem of the mid-90s for me. I love that song. I will tell you, the lead guitarist was wearing, I don't know how else to describe them, like old man loafers, like a button-up shirt, loafers, very, very middle-aged. But the lead singer was wearing a black sleeveless T-shirt that was like one of the original Soul Asylum concerts. Soul Asylum was my first CD ever. Well, to tell you the age difference, I would not use the term my first CD. Oh, I mean, I had tapes though. So I have both, but Soul Asylum was my first CD. Oh, I mean, I had tapes though.

So I have both, but like Soul Asylum was my first CD. Oh, okay, okay. So here's- I had Madonna and Beach Boys. I also had the entire cassette tape for Ken Burns' Civil War documentary. So the only time I've been that close in a concert, Sarah, is with an artist that might surprise you, Chance the Rapper.

That had to be a great show. Oh, it was phenomenal. But Austin— And you know what? It doesn't surprise me at all, actually. Of course you did. Of course I'm the one going to Gin Blossoms, and you're going to Chance the Rapper, despite the fact that you're 30 years older than me. That's a slight exaggeration, but

it was in Atlanta in the middle of the summer and we were in the mosh pit. And my goodness, that was an experience. And I will have to tell the story another time, but Nancy almost got in a fight. So yeah, yeah, absolutely. Okay. So that's a better note to end on. Yes, absolutely. Okay, so that's a better note to end on. Yes. Yes, absolutely. All right, well, thank you for listening. As always, please rate us on wherever you get your podcasts. Please subscribe where you get your podcasts.

Please check out thedispatch.com, and we will be back on Tuesday. milestones aren't for looking back they remind us to keep moving forward to turn what we've done into what we can do turning everyday necessities into electrifying possibilities turning a new vehicle into the new standard introducing the first ever mazda cx-70 our largest two-row suv available as a mild hybrid in line six turbo or as a plug-in hybrid crafted to move every part of you