Advisory Opinions - Is Donald Trump 'Absolutely Immune'?

Episode Date: December 14, 2023

Sarah and David give listeners another action-filled pod, starting with a controversial abortion case in Texas before breaking down special counsel Jack Smith’s petition to the Supreme Court. Plus: —Why justices aren’t doctors —Texas’ abortion law is not working —What does being pro-life mean? —An extremely rare move by Jack Smith —David’s (informed) rank speculation —Is conversion therapy covered by the First Amendment? —The number one movie of all time: Glory (1989) —David discusses Nancy’s announcement Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, another action-filled pod. Yes. We're going to start with the SCOTEC's abortion decision. We're going to then move to the cert before judgment petition to the Supreme Court that special counsel Jack Smith has brought on that

presidential immunity argument. And then we're off to the races. Then we move to the Supreme Court and that dissent from denial by Justices Thomas and Alito with a little like, hey, me too, by Justice Kavanaugh. And yeah, we still have to get to all those oral arguments. So let's just do this. Let's go quick.

Okay. This week, the Texas Supreme Court lovingly called SCOTEX instead of SCOTUS. Get it? SCOTEX. I get it. Okay. I just, I'm trying to get you in the lingo, David. I did trip up over it initially. I was like, Skotex? Oh, okay. Got it. Got it. Yes. So Skotex has nine elected justices, and this came before them as like an emergency shadow docket, if you will, emergency docket, which is going to work somewhat similarly to the U.S. Supreme Court.

Basically, a woman and her doctor get a temporary restraining order from what amounts to a trial court in Texas saying that she can get an abortion under the medical necessity exemption in Texas law with the new abortion law. The attorney general, Ken Paxton, immediately appeals that. SCOTEX takes it. And they're going to hold that, no, it has not met the standards. And they overturned the TRO. But the whole time, like they put the TRO on an administrative stay while they're getting it. It's a hot mess. So we're going to try to I think, David, the best way to do this is we'll just do pure sort of process what the opinion says. Yeah. Then I want to do kind of a legal analysis of like higher level. What do we think about that opinion as it applies to the law? And then three, some of the political ramifications of that. So I just want to read the Texas Health and Safety Code, Section 170A2B2. An abortion is allowed when, quote, in the exercise of reasonable medical judgment, the pregnant female has a life-threatening physical condition aggravated by,

caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced. In this case, Kate Cox, they have two children already. She's 20 weeks pregnant with their third child at the time that this was filed. They get a diagnosis of trisomy 18. There's no real question that this is incompatible with life. Trisomy 18 is an awful, awful diagnosis. Trisomy 18 is associated with very low birth weight, abnormally shaped heads, birth defects in organs that are often life-threatening. Most children with trisomy 18 do not live beyond the first two weeks of life. Fewer than 10% will live to a year. All will require continuous care and extensive life support

regardless. Her doctor, Kate Cox's doctor, talked to her about, you know, what was going to happen at this point. She was going to need a C-section if she carried the baby to term. She wants to have a third child. She's had two C-sections before. There was some discussion about this C-section potentially impairing her future fertility and chances of successful birth for a future child. Also, perhaps relevant, she has been to the emergency room four times, I believe in the last, was it a week, two weeks? In a very short amount of time, related to severe cramping, leaking, like this is not going well, blood pressure issues, etc. Okay. So the Texas Supreme Court, in short, says that she kind of didn't plead the right thing, that despite the doctor saying that in her good faith belief that she met this medical exception, that in fact, she didn't say that it was in her reasonable medical judgment that she met this medical exception. didn't say that it was in her reasonable medical judgment that she met this medical exception.

The court goes, I wouldn't say out of its way, but a woman who meets the medical necessity exception need not seek a court order to obtain an abortion under the law. It is a doctor who must decide that a woman is suffering from a life-threatening condition during pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians, not judges, both the discretion and the responsibility to exercise their reasonable medical judgment given the unique facts and circumstances of each patient. Nevertheless, this case did not meet that, they said, because the doctor did not use the words reasonable medical judgment. So this was a per curiam opinion. It was not

therefore signed by any of the judges, but there's also no noted dissents. So in SCOTACs, that means you have at least six judges who signed on to this. It's possible it's only six or, you know, one to three other justices didn't agree, but just didn't note their dissents, for instance, that's very possible. Same thing that happens at the U.S. Supreme Court, although that's five votes at the U.S. Supreme Court. And so let me just walk through a little bit of how that part works, David. Okay. So unlike the U.S. Supreme Court, cases are randomly assigned at SCOTACs. You just go in order.

So like when a case comes on the docket, it just like a regular case, not an emergency case. Like you start with the chief justice and you just go on down until you've run through all nine and then you start back up again with the chief justice. That's how a study memo gets assigned. That will include a recommendation over whether to grant cert like you'd have at the U.S. Supreme Court. And in that case, perhaps a study memo would recommend a PC, a per curiam reversal,

just needs the sick votes. And that chambers that wrote the study memo would then be the author of the per curiam opinion. But here's the problem. This is not normal order. This was an emergency petition. So we actually know nothing. It can be totally random at that point, not random in the like going in order, just like random, like who wants it? Given how short this opinion is, and how sort of sterile the language is, I find it impossible to guess who wrote it. And I know several of the SCOTEC's justices personally, like I have no idea who wrote it. And I know several of the Skotex justices personally, like I have no idea who wrote this opinion. And I don't know of any other Skotex aficionados

who have good guesses on who might've written it. Worth noting at the end, there's this line that says, justices Divine and Blacklock concur. Right. Which isn't necessary, right? Cause like, huh? Yeah. So they wanted to specifically for it to specifically be known that they're in the majority of this

per curiam. That's right. Yeah. They're the most conservative justices on the court. I would not be surprised if one of them was also the author of this. But no real way to know at that point. Okay, so let's dive into the legal part. Because, right, the woman and her doctor say she needs this abortion to prevent the future impairment of fertility issues related to having another child. And Ken Paxton, the attorney general, his argument is this is related to the baby's condition. If this baby were compatible with life, if you thought this was a healthy baby, nothing you're saying would mean that you were seeking an abortion. So it's actually not that the pregnancy is causing these life-threatening conditions or the impairment

of a major bodily function, but rather because you won't be able to raise this child, you want to abort this child and have another child. Do you see what I'm trying to say there, what his argument is? That the law is about the pregnancy causing it, but this isn't about the pregnancy causing it. All pregnancies would cause potential fertility issues down the line

if you needed a C-section. All pregnancies carry risk. The reason she wants to abort this pregnancy is because of the condition of the fetus itself, and that's not part of the medical exemption. The Texas Supreme Court doesn't address that whatsoever. Yeah, not at all. Not at all.

Which is a real argument. Yeah. We'll get to whether I think it's a good argument, but like it is a real argument. But instead, they just have this distinction they try to draw between a good faith belief that the doctor has that this meets the medical exemption versus in her reasonable medical judgment. I'll just read the sentence because I've read it so many times, David. Oh, Sarah, don't get me started. Well, get me started on this because I'm about to get started on it, but go ahead. I'm going to read this, then I'm going to hand it to you. In this case, the pleading state that Ms. Cox's doctor, Dr. Domla Carson, believes Ms. Cox qualifies for an

abortion based on the medical necessity exemption. But when she sued seeking a court's pre-authorization, Dr. Carson did not assert that Ms. Cox has a life-threatening physical condition or that in Dr. Carson's reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exemption requires. So she did state that she, anyway, so I went back and looked at the actual pleadings. Here's what they actually wrote that was in the TRO. Consistent with Dr. Carson's good faith belief and medical recommendation that Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed. Okay, that was found not good enough. All right,

David, go. Okay, here's what confuses me. I'm going to read a different portion of the opinion. It says, Dr. Carson asserted that she has a, quote, good faith belief, unquote, that Ms. Cox meets the exceptions requirements. Certainly a doctor cannot exercise, quote, reasonable medical judgment, unquote, if she does not hold her judgment in good faith. But the statute requires that the judgment be a reasonable medical judgment. And Dr. Carson has not asserted that her good faith belief about Ms. Cox condition meets that standard. What?

Okay. It's a total word salad. It's a word salad. It's the difference between subjective. They're saying good faith belief is subjective, but reasonable medical judgment is objective. And can I compare it to something else that's a mess, David?

Yeah. Qualified immunity. Yeah. Right? Good faith mistake is subjective, but we don't use that anymore for officers. Instead, we use clearly established law, which is supposed to be an objective test. This is even less clear than qualified immunity. Well, but here's the thing that's

super confusing to me. So here is the sentence. Dr. Carson asserted that she has a good faith belief that Ms. Cox meets the exceptions requirements. Now let's scroll, scroll, scroll up the opinion to see what the exceptions requirements are. And it begins in the exercise of reasonable medical judgment. Yes. So I'm saying I believe in good faith she meets the requirements, which include the exercise of reasonable medical judgment. And the court seems to be saying that what you have to say is in the exercise of my reasonable medical judgment, I have a good faith belief that in the exercise of my reasonable medical judgment, I have a good faith belief that in the exercise of my reasonable medical judgment. See, this whole case seems to be dependent

on the use of those magical words, reasonable medical judgment, in the doctor's specific statement as opposed to the doctor referring to the statute. So see why I'm extremely confused here. So that, you know, you're not confused. You've got it. Okay. Like that. They wanted a way out of this. And can I tell you a little bit about why they wanted a way out of it? Please. There is another case pending at the court that's in the regular order, a merits case, so to speak. And that case is actually on

defining that medical exemption, this language that we're talking about. And it's, you know, it's a bit of a hot mess in a different way. So that oral argument was held at the end of November. We didn't cover it because I think at this point, we're sort of waiting for an opinion. It didn't seem that important based on the oral argument at a state Supreme Court. But now it is. OK, so basically the argument from the plaintiffs in that case is that nobody knows what the exemption means and the state won't tell us, said the attorney for the Center for Reproductive Rights during the oral argument. rights during the oral argument. And of course, when Ken Paxton filed his brief in this case, meaning, sorry, the Cox case, the one that we actually have the opinion for, he's threatening,

not threatening, he said he will prosecute the doctor. The punishment for that is life in prison if you perform an abortion and you misread the medical exemption. And then here, Sarah, the Texas Supreme Court is basically saying, this is just what the doctors are supposed to decide, not us. Why are you coming to us in the first place except, yeah, this doesn't count? What? Yeah, exactly. Exactly. So they're saying this is what the doctors are supposed to decide,

but you didn't use the magic words in the pleading in the court. So it's a mess. And Sarah, let's go back to the statute, which is also a mess, okay? So here's what the statute says. And this gets to some of my issues with some of the pro-life laws that are out there. It says, in the exercise of a reasonable medical judgment,

the pregnant female has a life-threatening physical condition. So it says, it pregnant female has a life-threatening physical condition. So it says it has to be a life-threatening physical condition aggravated by, caused by, arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function. But if you read that literally, it seems to be saying that no matter what the pregnancy does, you can't get an abortion unless there's the life-threatening physical condition. But how does that relate to majorly bodily function, right? That's right. It's weird. It's very weird because it could just say that the pregnant female has a condition aggrav-threatening statement, which either means

nothing at all, because what life-threatening means is either life-threatening or not life-threatening, but including substantial impairment, or it modifies substantial impairment in a way that means that it has to be more than substantial impairment. It has to be connected to something life-threatening. It's very weirdly, extremely weirdly drafted. And Sarah, we've talked about a lot of weirdly drafted laws. This is weirdly drafted. And this is why I think that oral argument

in the irregular order case is really interesting to me because you actually hear the justices trying to work this stuff out. So for instance, Justice Jimmy Blacklock, that justice who I mentioned is one of the most conservative on the court. He notes his concurrence in the Cox opinion here. So he asked, well, does the exception, would the exception, for instance, include allowing abortions as a result of common pregnancy complications like high blood pressure? Well, let me just break this down for again, why justices aren't doctors and seem to know they're not doctors, but then still way into this. Right, right. So it is true.

High blood pressure is a very common pregnancy complication. Not all women with high pregnancy blood pressure will die. But all close to all women who die due to pregnancy die from high blood pressure. Right. So it is a life-threatening condition to have high blood pressure in pregnancy, even if it's common. And even if it won't often result in death, it is the thing that will kill you. It's why doctors take it so seriously. Like when

I was pregnant during COVID and so I couldn't go to a doctor's office and the first thing they did was tell me to get a blood pressure cuff at home so that I could take my blood pressure on a regular basis, even if I felt fine. Because the second that blood pressure gets high, they want you in an emergency room. Oh, interesting. Yeah. So like, I don't know what the justices plan to do with that. Like, yes, if you have high blood pressure, I would consider that a life-threatening condition

caused by the pregnancy. Even if there's no certainty that it will cause death, but surely you don't need to wait until she goes into cardiac arrest to say, ah, this high blood pressure has now caused a life-threatening condition. That doesn't make sense. I mean, preeclampsia is gonna move fast

or else women wouldn't die from it, right? If it were slow moving, we'd be able to have zero maternal deaths. So there was another related problem, which is the standing problem in this merits case. The women in question don't have necessarily life-threatening conditions. They're just pregnant. Right. And so the state's arguing that they don't even have standing. And so it came up during the argument, like, well, wait a second.

This is from Justice Jeff Boyd. Your position is that in order to seek the kind of clarity that these plaintiffs are seeking, you have to have a woman who is pregnant, who has some health condition that she believes places her life at risk or impairment to a major bodily function. But her doctor says, I don't think it does. And she has to then sue the doctor and maybe the attorney general at that point. And then she would have standing and sovereign immunity would be waived. And they're like, well, no, you see, then she has a malpractice claim against her doctor.

You have to actually show that your problem is with the law and the doctor's confusion over the law, not the doctor, just not knowing whatreatening means, which is such a silly argument given what we're talking about here. But then the case, the Cox case that we actually have in front of us is exactly what they said it needed to be, right? Here you have a woman who actually has what could be, you know, the impairment of a major bodily function, her future fertility. Certainly that's a major bodily function for a woman. She gets the TRO. Then they stay it for a week. First of all, if this is actually life-threatening or might impair a major bodily function, this is not how this can work. We can't have temporary restraining orders that then gets stayed and she has to sit around and twiddle her thumbs as she's going to the emergency room four times. And that's why, for those who have followed this story, you may know

she left the state and got the abortion in a different state. She felt like she had run out of time to actually protect herself. This doesn't work, David. It's not working. Can I offer a bit of a, I haven't seen this interpretation yet. And you tell me if you think I've lost my mind on this interpretation. I don't think this holding is ultimately going to be what Texas wants it to be. Now, we'll see, and especially what Ken Paxton wants it to be. Now, we'll see about what Texas does in this other case.

But if you read it carefully, it seems to be saying, wait a minute, we want we don't want any part of this. This is this is this is the this is the key paragraph. The laws reflect these laws, the Texas abortion statutes reflect the policy choice that the legislature has made, and the courts must respect that choice. Part of the legislature's choice

is to permit a significant exception to the general prohibition against abortion and it has delegated to the medical rather than the legal profession the decision about when a woman's medical circumstances warrant this exception. That's the key sentence. And it is delegated to the medical

rather than the legal profession that the decision about when a woman's medical circumstances warrant this exception. If you take that, strip away some of the word salad about whether saying good faith, I good faith believe the statute's requirements are met rather than quoting the statute's requirements when you state your good faith belief. Doesn't this now hold, essentially, that now what a doctor has, all the doctor has to do is say it is in a good, in my reasonable medical judgment, this is abortion is warranted and you don't have anything more to say about it, judges, because it was delegated to the medical rather than the legal profession, this decision.

So in other words, does this send a message to the medical profession in Texas that, look, the only thing you need to do is the magic words. And then if the magic words are there, it's essentially unreviewable. Is that kind of an outcome of this case? Or am I missing something here, Sarah? I think that's absolutely the outcome. But would you be willing to risk life in prison to say that's the outcome? Yeah, because I don't think Ken Paxton agrees this is the outcome. Correct. Yeah. And that's the issue. And you've got this other pending case where they challenged,

they basically asked the court for clarification on what the law means. They did not challenge it for vagueness. The court, one of the justices at one point asked, like, shouldn't you have challenged this on vagueness grounds, which would knock out the whole law, by the way. Right. this Cox opinion, by the way. Don't forget it was a PC. Like if someone's name isn't on it, it just carries so much less weight. I read it the same way you did, David. But I will tell you,

it seems to me that we see the distortion of having elected justices in what you just said. Because you're right. They're like, look, if the doctor says that, like the law says reasonable, you know, medical judgment. If you're saying it's a reasonable medical judgment,

then our job is done here, as long as you said that. Yeah. But because they're elected, they had to find in this case that somehow the abortion wasn't allowed because otherwise they would get primary from the right. Yes. All nine are Republicans and the ad rights itself, right?

Justice fill in the blank, voted to allow a woman to have an abortion at 20 weeks. That's it. That's all the ad's gonna say. So they had to do both, right? They had to get it off their plate and make sure that they weren't gonna get whacked from the right.

And that's why all things being equal, no system is perfect when it comes to picking justices. I think there's real problems with lifetime appointed justices that are through sort of political connections. I don't think that's great. But electing justices, well, here's the downside, I think. Well, and again, this is one of those cases that, you know, longtime AO listeners will know that you can't just look at the case and say, who won, who lost, right? And I'm gonna be happy or sad

based on who won or who lost. And the pro-life movement is very happy that, they're not happy she left the state pre-abortion, but they're happy with this outcome because I've seen a lot of arguments online that trisomy is not always fatal. About 10% of trisomy 18 patients who are born live a substantial period of time. One year. Less than 10% will live to a year.

Right. So it's almost always immediately fatal. When it is not immediately fatal, it is almost always fatal very soon after birth. And there's a very, very small number of people for whom they continue to live beyond a year. But so there's a lot of argument about the prospects of a baby with trisomy 18. Of course, there's on the pro-life side, a lot of energy around defending pro-life statutes. But here's what I really wish, Sarah, and I'm begging my pro-life friends, colleagues, peers, I'm pro-life. It is not a, you can't draft a terrible statute and then pass a terrible statute.

And when somebody says, this statute is vague and a real mess, and you say, but I'm pro-life, that's not, that doesn't cleanse you of the obligation of competence, okay? And in fact, in many ways, I'd argue, if you're pro-life and you are very keen on not just saving children's lives,

but also winning hearts and minds, which by the way, is an indispensable element of the pro-life movement, you're not gonna be able to get away from it. I don't care how much you tweet about murder and things like that. You're gonna have to win over hearts and minds. Isn't there like a really high obligation

on you to get this right so that you're not facing this? You know, that's the thing that bothers me. You know, if you look at a lot of these internal squabbles and there are some great folks who are proposing good legislation out there, Sarah, who understand the complexities a bit more. And then there's a lot of just a lot of stupidity and aggression. And I would say stupidity masked by aggression. In other words, Um, and I would say stupidity masked by aggression. In other words, hey, this statute's got problems.

Squish. What are you, a squish? You don't like to say babies? No, wait. Have you read the statute? It doesn't make the most sense. Squish. Rhino.

Okay, that's, come on, guys. Read the statute. And you explain to me in plain English what it means to have a life-threatening condition that's only about a serious impairment of a bodily function. Like, how does that get into, how did, parse that for me, please. And are you going to tell me and look me in the eyes and say, this is the best way we could draft this statute?

So it's a mess. So the statute's a mess. And as you're pointing out, Sarah, even though there are elements of this decision that are actually kind of clear, like when it says, wait, reasonable medical judgment, that's just medical. Why are we in it? That's a kind of a clear statement. But then there are other portions of it that, as you said, were a word salad. Don't you owe an obligation to people when the stakes are this high to be clear and to be precise and to use coherent reasoning and logic

when freaking life in prison is at stake for the doctors adjudicating this and life and death is at stake for mothers and children? What are we doing here? What are we doing here? 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.

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ken paxton's argument from the attorney general's office that because she would carry a healthy child to term in this situation that is actually the child's diagnosis that is causing the abortion and not the health and safety issue. And I think it's interesting because there's something to it, right? That's not a frivolous argument. But again, it misses sort of this medical reality that is pregnancies that have problems like trisomy 18 diagnosis

often come with more complications. That's why she's been in the emergency room. Very few women with healthy pregnancies why she's been in the emergency room. Very few women with healthy pregnancies are going to be in the emergency room four times at 20 weeks. Right. Something is wrong with the fetus. And so that's why this is all tied together.

And David, I will just say as a punchline here, because we've gotten many emails about this and I didn't actually address it during the whole Dobbs thing, but I'm willing to address it now. People have asked me where I fall on this issue. And the reason I didn't address it is because it was hard for me to articulate

exactly where I was, which is that I'm pro-life, but what does that mean? Well, here's what it means, you finally have pinned me down. I'm not for this. And if I consider myself pro-life and don't agree with this opinion, don't agree with this statute

and how it's at least being currently interpreted by the attorney general, these, I am the women you're losing. Conservative pro-life women who were like, whoa, whoa, whoa. I've actually been pregnant. What are you even talking about? That high blood pressure is so common that now that you just have to like take

the risk of? What? This is insane. This is going and and now I'm going to echo something that the other side says. This is going to kill women. Because the doctors are not going to be willing to risk life in prison, because it might be life threatening. You know, you have high blood pressure, but let's just see how it goes for a little while. That's, again, how you're going to be willing to risk life in prison because it might be life-threatening. You know, you have high blood pressure, but let's just see how it goes for a little while. That's, again, how you're going to end up with preeclampsia. And once that happens, you've got minutes, maybe a few hours. You do not have days for doctors to decide how life-threatening it is. They needed to decide that before. Yeah. Sarah, I'm not for this either. OK, I'm pro-life. I'm not for this. You know, guys, you know, here. So let me let's talk about the Ken Paxton point. And the Ken Paxton point is actually incompatible with the Texas Supreme Court opinion, ultimately, because the Texas Supreme Court opinion isn't actually evaluating these various specific issues. It's just saying it's up to the doctor that he just had to use the magic words. That's the Texas Supreme Court opinion. I doubt that'll be their ultimate holding. It might be. And that's the problem. We'll see again. And we'll cover it.

We weren't maybe going to, but now we will. Yeah. Yeah. Now we will. You've got my attention, Maybe you're going to, but now we will. Yeah, yeah, now we will. You've got my attention, Skotak. Yeah, now we will. And there's actually an answer, I think, to the Ken Paxton issue, which is whether or not something is a serious medical issue

and the exercise of their reasonable medical judgment is a serious medical issue is not the same thing as then therefore saying every time there is a serious medical issue is not the same thing as then therefore saying every time there's a serious medical issue, a woman will choose to abort. That's right. If this had been a healthy fetus, she may well have said like,

well, I'll risk not being able to have a fourth child if I can get this one to term or to 30 weeks. Or, you know, and the emergency room visits, you know, I will take on that risk myself. Right. But Ken Paxton doesn't get to decide whether she takes on that risk. That's exactly it.

So if the issue is it's in the exercise of reasonable medical judgment, there is a serious issue, then that ends the state's involvement, period. And then it becomes completely a risk analysis on the part of the woman. That's the way. I mean, there's women who forego chemotherapy to continue carrying a baby to term, even though it highly raises their chance of dying.

Yes, I've known women like that. I've known women who've died because they carried a child to term and allowed a cancer to run unchecked. And then by the time they started receiving treatment, it was too late. But that was that was their judgment. That's not Ken Paxton's choice. Right. Exactly. And so if the question is, what is a reasonable medical judgment with a clear statute there? That's the law. Right. And so the Texas Supreme Court seems to be saying, as of right now, with this other case pending,

something that is, hey, it's all up to you doctors. But again, we have to wait and see. And that's what's so frustrating about this, Sarah, is there was overwhelming evidence that this was much riskier than normal. As you were saying, there's four trips to the emergency room. You have a child who is almost certainly incompatible with life, real concern about future. And look, I do not take lightly at all, at all, the life of the child inside of her. Not at all. And I don't know what I would do if it were me,

for what that's worth. Right, right. I don't know. I really, and I've struggled with that since we knew we were going to talk about this. I can't give you an answer. I mean, you know, we faced a moment with our granddaughter where we didn't know. We knew there were life-threatening, there was a life-threatening, series of life-threatening, there was a life-threatening series of life-threatening birth defects. We didn't know if it was going to be a trisomy situation. And Camille made an immediate choice. I'm carrying this baby. I'm not doing any one more thing to add additional risk, including the amniocentesis that could have defined much more specifically what the condition was. But the question I have is under a circumstance where

maybe we knew there was incompatibility with life and the physical condition that she was in, what's much worse than the physical condition that she was actually in, you know, what's then? And then the question becomes, how much say should Ken Paxton have on that versus the doctor? Sorry, I'm laughing not because it's funny, obviously. I'm laughing at the absurdity of injecting Ken Paxton into that conversation. Yeah, I will also say again with, I don't know any women who haven't had miscarriages and David, I've talked about my miscarriage, um, and ectopic pregnancy on this podcast before, but I will also say like a trisomy 18 diagnosis and four trips to the emergency room, this was going to end anyway. I'll just like, I'm not a doctor,

but I know lots of women. And like severe cramping, blood, like, well, let me tell you what's happening. Like, so in some ways, like you don't need to worry as a pro-life person how this pregnancy was going to end because unfortunately, it was always going to end one way. Right.

So, okay, we'll wait for that Texas Supreme Court opinion. Here's my hope. I hope that they do not kick it on standing right and i certainly hope that they don't find that they cannot provide clarity in the law because of either that lack of standing and remember state standing not the same as federal standing we haven't gone over that a whole ton but like they're different issues yeah um you know because they didn't sort of use again, the magic words that they were challenging this under a void for vagueness concept that like, well, now we're not going to clarify this. You didn't challenge it as vague. And like the law says what it says, and we're just gonna have to wait for prosecutions. Like they have a responsibility

to answer the question here. So, yeah. Yeah, they do have a response. And here's the other responsibility, Sarah. Texas legislature, you have a responsibility to write a law that makes sense. And, you know, I'll bet you money. Can I just like put some money on the table here that what happened was that somebody only wanted the life threatening exception and enough other people wanted the impairment of a major bodily function exception. And that's how it got written that way. And they were like,

well, we'll let the courts decide exactly what that means. Dollars to donuts. Yeah, it's wild language. It's wild language. And so the problem is, if they're going to include the serious bodily function exception, they're gonna have to leave room for medical judgment

unless they list all of those exceptions very quite specifically. But even then, they would have to probably add a catch-all additional statement. So it is, but all I know is this, what the statute should ultimately read is very different from how this statute reads. And if you're going to impose a life sentence on somebody for violation of the statute, you owe them clarity. At the very least, you owe them clarity. And that's anything but clear. And so, yeah, it's just really, it's really frustrating.

And I think, Sarah, this is in a microcosm, emblematic of why the pro-life movement is facing sort of a series of catastrophic losses in elections across America. It's because you look at a situation like this and you dive into it and not even the underlying law is clear enough for someone to rely upon. And I can't even, you know, please be competent, guys. Just please be competent.

Okay. Speaking of needing clarity, special counsel Jack Smith has appealed directly to the Supreme Court from a motion, denying a motion from Judge Tanya Chukin at the D.C. District Court. So this is about President Trump's argument that he is absolutely immune from prosecution because he was president at the time of the actions that he's being charged with between the election and January 6th. And I'll just remind everyone what the actions that he's being charged with, aside, you know, putting aside the statutes here. This is from Judge Chutkin's opinion that was issued December 1. First, they, meaning Trump and others, first, they used knowingly false claims of election fraud

to get state legislators and election officials to subvert the legitimate election results and change the electoral votes for the defendant's opponent, Joseph R. Biden, to electoral votes for the defendant. Second, they organized fraudulent state electors in seven states attempting to mimic the procedures that the illegitimate electors were supposed to follow

under the Constitution and other federal state laws. Third, they attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted state that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome. Fourth, using knowingly false claims of election fraud, they attempted to convince the vice president to use the defendant's fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. including many individuals whom the defendant has deceived into believing the vice president could and might change the electoral results, violently attacked the Capitol and halted the proceedings. They exploited the disruption by redoubling efforts to levy false claims of election fraud and convince members of Congress to further delay the certification based on those claims.

Okay, so she denied entirely the claim of absolute immunity from criminal prosecution for actions performed within the outer perimeter of a president's official responsibility. Now, Jack Smith has taken that and said, instead of going to the D.C. Circuit, I'm going directly to the Supreme Court and asking for something called cert before judgment. This isn't common, but it's not that rare anymore, David, either. Right. And so I saw a lot of headlines like,

an extremely rare move by the special counsel. I was like, well, there. Oh, I like that voice, Sarah. Could you also do that for, we've got a monster truck rally on Sunday, Sunday, Sunday. So he filed an 81-page brief saying, we got to do this. And I'll just read a little bit from the statement at the top.

This case presents a fundamental question at the heart of our democracy, whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not

convicted before the criminal proceeding began. The district court rejected respondents' claims, correctly recognizing that former presidents are not above the law and are accountable for their violations of federal criminal law while in office. Respondents' appeal of the ruling, rejecting his immunity and related claims, however, suspends the trial of the charges against him scheduled to begin on March 4th. It is of imperative public importance that respondents claim of immunity be resolved by this court and that respondents trial proceed as promptly as possible if his claims of immunity are rejected. Okay, David, so we've got a couple things here. There's the underlying merits, fine. But there's also the, does this court wait and let the DC

Circuit do this in the regular order? The DC Circuit can move quite quickly. We've already seen the move quickly, for instance, on the gag order question. And this, by the way, remember, the DC Circuit did rule on the gag order. This is the presidential immunity thing. For some reason, I tripped myself up and I was like, but wait, we just had a DC Circuit opinion. Lots of moving parts in this case. Okay, so just on the process question, remember, A, it takes four votes for cert. So you've got to count to four here. Second, emergency docket stuff is disfavored. And this isn't technically an emergency docket, but similar vibes in terms of not following regular order. And third, there's a reason that justices like to get circuit opinions,

because these are their very, very smart colleagues that they respect, taking a whack at it so they can be like, ah, well, I didn't like that, or I did like that, or I hadn't thought of that issue. It's basically like having more briefing by people who aren't advocates themselves. So what do you think, David? Are they going to take it? I think they will. I think they will. It was interesting. I mean, I had this moment on Monday where I honestly misread the Supreme Court's order. It says petitioner's motion to expedite consideration of the petition for writ of certiorari before judgment is granted. And I kind of skipped some of the middle of the language and I almost misread it for a moment that the writ was granted. No, no, no. It was just the motion to expedite consideration

of the petition for the writ that was granted. So Donald Trump has to answer this 81-page petition by Wednesday, December 20th. Right. I think they'll grant it, Sarah. Again, with all Supreme Court predictions caveat, I don't know, but I think that they will. If they don't,

I feel like there's probably a high likelihood the trial gets pushed. Right. So then that like, let's assume we were just doing the political valence. You know, use my two axes, if you will. So let's just think about the bottom axis. Donald Trump does not want the Supreme Court to take this. He wants it to go through the DC Circuit and then he wants it to go to the Supreme Court because he wants us to drag out as long as possible. So if we were just using that bottom axis, you've got three votes to take this. Because like it needs to move as quickly as possible.

Yes. And look, when I talked about why they, the Supreme Court likes lower courts to weigh into this and write their own opinions, that's true. But if the Supreme Court knows they're going to take something, no matter what, it does put a thumb on the other side of the scale is a little bit of weight of like, look, if we're going to do this anyway, let's just do it. Why waste the D.C. Circuit's time having to write an opinion that, you know, we don't need. having to write an opinion that, you know, we don't need. Okay, so on that bottom axis, you've got three votes to take it. So now the question is on the top, on the Y axis, can you find one vote?

Is this a high institutionalism concern? Because, you know, for the good of the country, this needs to get resolved faster. We don't want the trial delayed. Or is it a low institutionalist concern that like we don't need the DC Circuit's opinion anyway? I will tell you that I think it's a high institutionalist argument here to take the case. So then you're looking at the chief, Kavanaugh and Barrett, can you get one of them? You can get more, but can you get one to peel off and say yes? So Sarah, can I engage in some rank speculation for a moment? OK, it's I would say. Informed rank speculation, but still

rank speculation because I'm reading tea leaves. John Roberts is over Trump. I can't repeat all the stories that I know about the court sometimes, but yes, he is. Yeah. John Roberts is over Donald Trump. And that was obvious during the Trump administration. Because if you look at some of the Roberts evaluations of the Trump administrative actions, he's just over it. I think he has a view of the Trump administration very similar to the view that I expressed of the Texas legislature and the way this whole thing played out in Texas, which is like, get it together. You are embarrassing us,

is sort of the view of a John Roberts. And you saw it in these administrative cases and things like this, but I don't think it's gonna be hard to reach for the one, the other to make it four. The question is, would he want to be the fourth if he's not certain and, you know, if he's got real questions about the outcome? So, yeah, I think there's a four there. Okay, so that's on the process question. Now, switch over to the merits question. And we'll just do a very cursory, because I think we'll be talking about this one quite a bit.

I think so, yeah. But cursory exploration here. Again, you want to use that bottom axis, fine, you've got your three votes, there's no presidential immunity. Now on that Y axis on presidential immunity, I think things move pretty substantially. So like the idea that Gorsuch, for instance, is going to want to maximize presidential power with absolute immunity. I don't think so. That at least, you know, again, I'm taking this out of the current context out of literally like the post election stuff, what he's being charged with. This is now just a question on how on how immune are presidents while they're in office. I think you could see a real flipping of that, that actually

the high institutionalists are going to be sort of in favor of a more robust presidential immunity because you don't want presidents getting sued in the general sense or thinking they're going to get sued or charged with all manner of thing. And let me just read again the one that I've continued to have real questions about, which is that number three, they attempted to use the power

and authority of the Justice Department to conduct sham election crime investigations. Well, who gets to determine whether they're sham investigations? So we now get to charge presidents anytime they ask the Department of Justice to open investigations. Whether the department does or not, by the way,

because that's a sham, like what? So I don't really understand why some version of presidential immunity wouldn't cover, like that's an official act. That's not on the outer perimeters. Can I just throw a big complicator into this that just came up in my news alert? The Supreme Court agreed on Wednesday

to decide a question at the heart of the federal election interference case against former President Donald Trump and hundreds of prosecutions arising from the assault on the Capitol on January 6th, 2021. Can the government charge defendants in those cases under a federal law that makes it a crime to corruptly obstruct

an official congressional proceeding? So this is that statute that we've talked about before, the corruptly and the seriatim list of documents, yada, yada, or other. So they had taken a version of this before, but yes, this will also impact the criminal trial, which we've said. So I don't know, David.

My point is, I guess on the, I think it's a little easier on the process side. And I think it's a little bit more of a jump ball on the merit side and definitely will be an interesting oral argument. No, it will be very, very interesting. And that cert grant is a big complicator for one of the counts because you've got, it's going to be heard this term, probably not decided until after the trial date. That's right. That is currently set.

This is an interesting complicator, raises some real tactical questions for Jack Smith. Yeah, boy, it's it just got less likely the trial happens. I've been everyone finds me very unpopular, but I've been saying it's not going to happen. Yeah, that cert grant just made it less like for sure. OK, so, David, there was a dissent on denial of cert about this Oregon law. Justice Thomas dissenting from the denial of certiorari. Justice Kavanaugh also would have voted to grant the petition for a writ of certiorari. Also, Justice Alito.

So there were three votes. Now, I think I talked about this before, but there used to be this thing called a courtesy fourth. Right. At the U.S. Supreme Court that if you got three votes for cert, just someone throw in the fourth so that way it can be heard. The courtesy fourth seems to have died. And I mean dead. It is now

past any resuscitation hope. There's no life support. It's rotting in the ground. And here you may find it, RIP, courtesy fourth, because you've got Alito, Thomas, and Kavanaugh wanting to grant cert, and you're telling me they couldn't get Gorsuch or Barrett or the chief? Yeah. Courtesy fourth, this one. Okay. Courtesy fourth is dead. David, do you want to introduce what this is about? Yeah, this is essentially about when somebody, a counselor

is counseling clients who suffer from gender dysphoria, who are having difficulty accepting their biological sex. And the question is whether or not a licensed counselor can assist minors who suffer from gender dysphoria, but want to be comfortable with their biological sex. That's the quote, want to become comfortable with their biological sex. And so in other words, a client comes in, they says, I don't feel comfortable mind by body. I'm a man, but I don't feel comfortable in my biological sex. I want to feel comfortable in my biological sex. And there are in the state, essentially that Washington is saying,

you can't counsel them to become comfortable in their biological sex according to their wishes. That is labeled to be conversion therapy as a regime that seeks to change an individual's sexual orientation or gender identity. It's extremely broadly worded law that at the bottom line holds that a helping a minor become comfortable with his or her biological sex is prohibited, even if they want it. OK. And so the question was, does that violate the free speech rights of the counselors?

And I think it's the easiest answer in the world, Sarah, is yes, okay? It's yes. And if you deny, if you don't think that it's yes, let me reverse it. And let's say that Alabama says to counselors that if somebody comes in and they're struggling with their gender identity,

and Alabama says, you have to counsel them to accept their biological sex. You may not counsel them to accept their gender identity. They have to be counseled towards biological sex. A lot of people on the other side would immediately flip around and say, why are you suppressing the free speech of counselors who are using their best counseling judgment on this issue?

Now, I do agree that there are forms of conversion therapy, like true conversion therapy, that are awful. I am not denying that at all. This statute is so broadly written. Again, Sarah, what are we back to? A very similar theme that the statute is so broadly written that it's just scooping up an awful lot of what would clearly be protected speech,

even the speech that the client came to the counselor for, wanted from the counselor, would be excluded, prohibited, punishable. And I'll just read from Justice Thomas' denial from dissent. There's little question that SB 5722 regulates speech and therefore implicates the First Amendment. True, counseling is a form of therapy, but it is conducted solely through speech. If speaking to clients is not speech, the world is truly upside down. SB 5722 sanctions speech

directly, not incidentally. The only conduct at issue is speech. It is a fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content. And what they, and then Justice Thomas says, the Ninth Circuit attempted to sidestep this framework by concluding that counseling is unprotected by the First Amendment because states have traditionally regulated the practice of medicine. Pause. Is that the rule you really want? I'm asking that of all sides here.

Is that the rule? I know there are people who look at the outcome who are very much believe that affirming trans kids is the only humane, decent thing to do. But remember, what did the Ninth Circuit do? It essentially said that counseling is unprotected. So what you're doing here is you're giving other states a blank check to enact mirror image opposite laws here. So this idea that counseling is unprotected has resonance, as Justice Thomas noted, with the NIFLA case, National Institute of Family and Life Advocates. This was the crisis pregnancy center case where California was attempting to require

crisis pregnancy centers to advertise for state-funded free or low-cost abortions and tried to argue that this compulsion of speech, which would otherwise ordinarily be completely illegal, is legal because they were regulating medical speech or professional speech, a separate category of speech. And this is something that the Supreme Court in NIFLA, that was an argument the Supreme Court rejected in NIFLA. And so I'm with Justice Thomas here. I mean, it's very difficult for me to see how this is not speech. Now, that's not granting a blank check that all forms of conversion therapy are the same? No. But this idea that this is not speech, this is counseling,

is fundamentally not protected speech. Yikes, Sarah, yikes. So here's what's weird about this to me, David. Not a lot of heat on the page from Justice Thomas and not from Justice Alito either. Justice Alito wrote separately, dissenting from the denial of certiorari, like Justice Thomas, I would grant the petition for a writ of certiorari. This case presents a question of national importance. In recent years, 20 states in the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy.

It is beyond dispute that these laws restrict speech and all restrictions on speech merit careful scrutiny. There's a circuit split. For these reasons, this case easily satisfies our established criteria for granting certiorari and I would grant review. Well, that's not very spicy, Justice Alito. And it leads me to this conclusion, David. They've got a different vehicle.

Oh. Because in the Ninth Circuit, remember there's the panel opinion, the one you talked about. Then there's the petition for en banc review, where you have the statement by Judge O'Scanlan, where he would have granted en banc review. That was joined by a couple other judges

on the Ninth Circuit. Then you've got that Boumete dissent. Anytime Boumete is dissenting on the Ninth Circuit, like it's like straight shot to the Supreme Court these days. Right. More so than really any other judge on the Ninth Circuit, in my not data-filled opinion. Just casual observance. There's a circuit split. This is a clear issue. Justice Alito doesn't sound spicy at all. They've got a different vehicle that's coming up that is not on my radar. And maybe it's not going to be in the conversion

therapy context. Maybe it's going to be different professional speech, for instance. But nobody seems too worried about this on the court. So I'm not going to be worried. Yeah, it's, yeah, it's interesting. No, I, that, that's a, I missed that, Sarah. I was, but you're right. And, and looking at this, it's not spicy Alito. Justice Thomas is not bringing the high heat, which he knows how to do. I mean, God knows we've seen both of them on dissents from denial, like bring a fastball. So if they're not worried, I'm not worried. All right, David. Well, do you remember during the Trump administration, there was this ongoing joke about transportation week?

Every week was transportation week and then they never got to it because some other emergency popped up. So our conversation about SEC v. Jerkacy, Moore and Purdue Pharma, it's transportation week. We didn't get to it this episode. Once again, so sorry. Our list continues to grow. But David, before we go,

I did want to talk about two other things. One, before we hopped on this podcast, we were talking about the death of an actor who is best known for a lot of recent stuff, but who you and I remember most. And I'm sure a lot of listeners of this podcast just guessing that y'all are like us

and find the movie Glory to be, if not your number one movie of all time, certainly in your top 10. It's incredible. And he was a major actor in the movie Glory

with a fantastic performance and he passed away. And so just a nice reminder to go rewatch the movie Glory. My son is not old enough to watch Glory, but as soon as I think he is, we're on it. Yeah, I will never forget as long as I live watching that movie for the first time.

And it was amazing start to finish, but I remember the scene. And anyone who's seen Glory remembers the scene. And this is Denzel Washington, who was kind of a rebellious Union soldier. And at one point, he's ordered to be whipped. And wow, that scene. Like, I can't even talk about it without choking up

how his shirt is stripped from him. Sorry. David actually is choking up. I can see it. It's yeah, it's unreal that scene. And it's also because the topic that's coming up. Yeah. But, you know, in watching that movie, the enormity of what slavery was, you know, impacted my young mind in a way it had never

done it before because everything else was like reading stuff, right? You know, like you're reading about stuff and then the way they portrayed it. And that moment stands out to everybody like that moment. It was just that one moment with Denzel Washington that stood out so much. But the Andre Brouwer performance of Captain, I mean, of Corporals Thomas Searles from start to finish was magnificent. Just magnificent. He was Thomas, he was Matthew Broderick's friend

and a scholar, a bookish man who said, I'm going, you know, I'm signing up. And the movie ends at the Battle of Fort Wagner, where tragically, they just all are, you know, it's a 1989 movie of the horse to world event that occurred in 1860. So I'm not spoiling anything, where they're just all killed. And, but it was still, you know, one of the most inspirational movies I've ever seen in my entire life. So we watched it in junior high, like, you know, in class when the teacher's like, we're watching a movie because she's like feeling lazy, except this was not feeling lazy.

This was like the movie had just come out a couple of years earlier and she like just came out on VHS basically. And she was like, stop everything. We have to watch this movie. It was incredible. And I, at the end, they show the, I don't know what the term for the art is, but the bronze, it's not a statue.

It's like a relief. Yeah. That's in Boston of the Massachusetts 54th. And I saw that and she told me it was in Boston. And I was like, well, then I have to go live in Boston someday. And it was in that moment that I decided I must at some point in my life live in Boston. How, how funny is that? So, um, how to, it actually did have this big impact on my life, uh, aside from even just the historical part.

Yeah. Yeah. You know, that's one of those things. It's a shame that the main and, and well, listeners tell me, I hope that the main memorial of the 54th, the primary memorial of the 54th isn't confined to Boston because this is one of my hobby horses, Sarah. These Union soldiers fought and died all over the South, all over the South. They didn't die in Massachusetts.

They died in South Carolina. They died in Virginia. They died in Tennessee. They died in Mississippi. Where are their memorials? There. Because these are American soldiers on American soil, you know, and I think that's one of the things that just gets lost in the monument debate, which is usually about what are we going to tear down? I'm asking a whole different question. When are we going to build more? Oh, I would love to have a Massachusetts 54th Memorial in South Carolina. Yeah, that'd be incredible.

And listeners will tell me if there is one. I think I have a I long ago I went to the site. I was in Charleston. I believe Fort Wagner's outside of Charleston. This is a distant memory. And I've been through all of that. And I don't remember seeing one. Maybe there is one now.

Here in Franklin, we have a very, very, very tall statue of a Confederate soldier. But we just recently erected a statue, a smaller statue, but beautifully done of a Union soldier, a black soldier in the Union Army. And I just love that we did that, but we need to do more. We need to do more. By the way, I did not know this, but the Massachusetts 54th Memorial

that's in Boston of Robert Gould Shaw was defaced during the George Floyd protests. Gosh, man, oh man. Well, David, this brings us to another topic that we need to talk about on this podcast. So yeah, he had left it to to Nancy, your wonderful wife, to sort of make her public announcement. But yeah. Yeah. So yeah, we Nancy made a public announcement because we haven't exactly kept a secret and word was getting out and we're starting to get a lot of people

sending us messages. But before, a week or two before Thanksgiving, Nancy was diagnosed with breast cancer, a pretty aggressive kind called triple negative. Listeners who sadly have experience in this area will know what that means. It's not conducive to certain kinds of newer treatments. And so you kind of have to go really old school

with the major chemo. And it just kind of came out of nowhere. It had spread a little bit, but thankfully has not gone metastatic. In other words, it's not outside of the breast and lymph node region so far as we know. And she started chemo right, you know, we got the diagnosis, got a bunch of tests run, and she started chemo almost immediately.

So she's in the middle of chemo now. And we have a lot of reason for hope. She's handling the chemo really well, surprisingly well so far. She's young, she's 49. She's handling the chemo really well so far, but we got a long road ahead of us about six months before surgery.

And so Nancy just did a really, I thought, just very sweet and beautifully written announcement that she put on Twitter and on threads. And Sarah, I got to tell you, there's been a lot of toxicity on social media. Not this week, not this week. And either the trolls just went completely silent, which is which is fine by me. It's totally fine by me. But we've even gotten some really kind notes from, from, from some frankly quite surprising quarters. And, um, that's just been really gratifying. People have been, have really rallied around her

sort of in the public sense. And then where we live here, we have just such a fabulous network of friends and family that have really rallied around her as well. And so, you know, but as Nancy was saying, when driving back from chemo last time, she just doesn't see how like, you know, the single moms out there, you know, the people who have less of a support system, how do they do it? You know, how, how does this, how do they just handle sort of the day in, day out grind of it all? Because it is a grind.

But we just share that with you guys. Appreciate you guys and would very much appreciate your prayers and good wishes for Nancy. Well, David, I certainly speak for the entire AO community and I'm sure there'll be plenty of people in the comments with more eloquent ways to say this.

But we're on your team, man. Thank you. Just totally and completely. And whatever time you need, everything else, like, you know, you've got it. And you just couldn't have a more loyal, loving, cheering squad than your AO family. Yeah, I appreciate that.

And it's just been so gratifying. And so thank you guys in advance for your prayers and good wishes. And with that, Transportation Week will continue at the next episode as we maybe someday get to talk about the oral arguments from this past session. Bye.