Strict Scrutiny - Message Received

Episode Date: September 2, 2021

Commander Professor Steve Vladeck joins us for an emergency episode about SB8, the most restrictive abortion law that has been allowed to go into effect since Roe v. Wade. Follow us on Instagram, Twitter, Threads, and Bluesky

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All I ask of our brethren is that they take their feet off our necks. Welcome to an emergency episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. You all asked for an emergency episode. We are delivering. We are your hosts. I'm Kate Shaw. I am Leah Avalito. I'm Melissa Murray. I just don't know if the Gilead jokes are funny anymore, you guys. It's a little too existential to be funny, Leah. I'm not introducing myself as Commander Vladek. I'm just telling you guys. That's not happening. We are joined, as that spoiler revealed, by Professor Steve Vladek, the Charles Allen Wright Chair in Federal Courts at the University of Texas Law School. Welcome to the podcast, Commander Vladek. Oh Charles Allen Wright Chair in Federal Courts at the University of Texas Law School.

Welcome to the podcast, Commander Vladek. Oh, gosh. Thank you for having me. I wish it were under better circumstances. Steve is maybe the one white, straight man I could stand to talk to right now. So compliment as the case may be. I would like to think that we can include Kate's other half as well, but I'll take that. Mr. Kate Shaw also knows less fed courts. So we add white straight man who you'll talk to who can actually talk about federal courts. That's right. That's right. Well, you're our number one.

There you go. Thank you, guys. All right. So, Steve, thank you for joining us. Again, emergency episode. We got to get right into it. What is Texas SB8? Yeah. I mean, so SB8 is just about the most restrictive abortion law, certainly the most restrictive abortion law that's gone into effect in any state in the 48 years since Roe v. Wade was decided. And it has two very different sort of halves to it, the substantive half and the procedural half. The substantive half is not something sort of crazy and out of left field, even though it is a direct assault on Roe, it's basically a six-week abortion ban. There are a couple of sort of technicalities. There's a amorphous medical

emergency exception. But for the most part, the substance of SB-8 bans anyone in Texas from performing an abortion or from aiding and abetting in the performing of an abortion after the sixth week of pregnancy, which the statute specifically defines by reference to the menstrual cycle, not any later date. Six weeks when, of course, many women don't even yet know that they're pregnant. And that is patently unconstitutional given the current constitutional jurisprudence on abortion that has not yet been overturned. Yeah. I mean, this is not like a whole woman's health versus Hellerstedt question about just what an undue burden is when you're dealing with, you know, targeted restrictions of abortion providers. You know, these are not trap laws.

This is like no abortions after six weeks. And so, you know, there's no universe in which the substance of SB8 and Roe or Casey can coexist. Right. And can I ask another question about the abetting, the aiding and abetting provision? It talks about aiding and abetting, but it is not actually a criminal law. Is that correct? Right. It imposes civil liability. And so the statute is very sort of devilishly, fiendishly designed to chill conduct. And so the aiding and abetting provision basically say like, if you give money to Planned Parenthood, if you drive pregnant women to an abortion provider, if you do anything else that helps you facilitate the performance of abortions beyond the six weeks of pregnancy, you too face as we're sitting here recording has thus far succeeded, is to scare these people out of the abortion business. And just about every provider in Texas has stopped providing abortions as we're sitting here talking, you know, beyond week six. So can we get a little more detailed about the enforcement mechanism, right? So it's a

prohibition on performing, aiding, abetting. So how does this prohibition get enforced by the terms of the law? Yeah, so this is where things get really wacky. And this is the sort of the procedural half. If all we had was the substantive half, right, there'd be no need for an emergency podcast. A federal district court would have blocked this bill and a pre-enforcement lawsuit. Even the Fifth Circuit, I think, would have had trouble staying that decision, right? The Supreme Court would have sort of left that injunction in place. We've seen that over and over again, even as the court's gotten more conservative with laws that are such a direct assault on Roe.

Arkansas's fetal heartbeat law is a good example of this. South Dakota, too. What makes this harder, the reason why we're here, is the procedural trap that the statute creates. So the procedural part, it does two things. First, it takes the state entirely out of the enforcement business. It expressly disclaims the power of the governor, of the attorney general, of any other state executive branch officer to enforce SB8. And that is a very, very transparent effort to rely upon this 2001 en banc Fifth Circuit decision called Akpolovi v. Foster, where the Fifth Circuit held that if none of those people are involved in enforcing a law, you can't bring an ex parte young action.

You can't seek injunctive relief against them to stop them from enforcing the law. So no state enforcement. Instead, private enforcement, and private enforcement by literally anybody, not any Texan, not any Texan who knows someone who might be getting an illegal abortion, literally any Tom, Dick, Harry, or Handmaid's Tale fan, or not fan, depending upon context. So I just want to unpack something that you said, Steve, so our listeners understand how the state enforcement versus private enforcement affects the ability to bring a lawsuit challenging the law. So what happens is before a law goes into effect, if you want to prevent the law from going into effect, you can sue a state official who would be charged with enforcing the law and say, you state official can't enforce the law. You're charged with enforcing it. I am going to ask for a court injunction preventing you from

doing that. Here, however, because the state, the attorney general, or local DAs aren't charged with enforcing the statute, you can't name them as defendants in the lawsuit, or at least that's what this private enforcement mechanism was designed to do. And so that created some uncertainty about who the plaintiffs could actually sue. They sued a host of state judges, the leaders of state medical boards, as well as some private individuals, anti-abortion organizations, as well as individuals affiliated with those organizations who said they wanted to enforce the statute. And the plaintiff said, well, look, these people say they want to enforce the statute. We want an injunction to prevent them from doing so. And we also want an injunction against state judges from docketing these cases.

And those were the defendants that they named. But of course, because this is an atypical enforcement mechanism, there was some uncertainty about whether those defendants were the right ones and whether those defendants enjoyed immunity, at least the state officials, or whether, again, the private individuals were proper defendants. And so that uncertainty both delayed the litigation and created a set of questions that caused the chain of events that we're going to be talking about. I agree. I would add two things. One, the plaintiffs in the suit that we're going to talk about tried to successfully certify, right, not just state court judges and clerks, but classes of state court, which is the only way to ensure that the relief runs statewide. Because what's happened in other, there have been other cases, but they've all been to block specific people from enforcing the bill. And if you're, you know, Whole Woman's Health, if you're Planned Parenthood, you don't care if John Doe is enjoined from enforcing SB-8, because Jane Doe is not.

And so, right, the double-edged sword of the procedural trap is, one, to make pre-enforcement challenges just about impossible because it's so hard to identify who the right defendant is. But there's the enforcement side of it, right, which is, you know, most of the folks who I've complained about this to since July, who are not as sympathetic to the underlying right as I think we all are, would say, well, it's not a problem. The providers can just raise Roe and Casey as a defense in an enforcement proceeding. Well, there are two issues there. One, it's not at all clear that anyone will have standing to bring an enforcement proceeding. The bill is so cynical that it deliberately creates plaintiffs who will not have standing

in a state court system that follows federal rules where it's a jurisdictional defect the courts have to deal with first. But two, even if there are plaintiffs withstanding, the providers are facing thousands of these suits where there's $10,000 damages per case where the costs and fees are on them. And so what everyone, I think, on the inside understood is the second this law went into effect, it was going to put the providers out of business. Can I make an observation, Steve? The point that you made about the attorney's fees, the attorney's fees only run one way. So if the providers lose, they're on the hook for the other side's attorney's fees. And this is sort of taking a page out of the anti-discrimination playbook because anti-discrimination law has for around the last 20, 30 years provided for the possibility that states may not be as assiduous in enforcing

anti-discrimination law. And so there have been statutes that deputize private individuals to function as private attorneys general. This is kind of a gloss on that. I mean, it's a little more pernicious because it actually incentivizes vigilantism as opposed to private attorneys general. And one of the things that would incent the private attorney general in the anti-discrimination context is the possibility that they're not like their attorney's fees would later be reimbursed. And that's obviously not here. But it is a weird perversion of the anti-discrimination model that they basically deployed for this purpose. So, Melissa, I think perversion is the right word. And, you know, again, folks who have, those few folks who are publicly defending SB8, right, would say, well, we have private attorneys general for lots of things. And so first, yes, we do, but almost never at the expense

of government enforcement. And again, the key there, as we've been saying, is by cutting out government enforcement, you're cutting off at least clearly available pre-enforcement challenges. But mostly, the other thing is, like, I'm hard-pressed to think of cases where we authorize private attorneys general to bring suits to prevent people from enforcing their constitutional rights. And, you know, yes, all the people defending SB8 don't actually think Roe and Casey are rightly decided, but they're still on the books, at least in 49 states and six territories. That's the cynicism here, is that it's perverting multiple federal courts doctrines in to reviewing whether SB8 is constitutional, I think it would be a much straight, easier case. But it's all this procedural uncertainty that is the point of the exercise. The procedure is the procedural uncertainty is being weaponized to, you know, to affect the result of SB8 being upheld without forcing the courts to actually uphold it.

What did you just say? Did you just say Siri, show me hell? And it's somehow I was talking to Siri and Siri. Siri is also fired up today. Siri is a fucking narc for Texas SB8 and she's going to file a lawsuit against us for criticizing the law. Just you wait and see. I am happy to defend that lawsuit and not contest standing and see if anyone notices so we can litigate the constitutionality of the thing. But because this is I mean, this is the part that drives me batty. Right. Which is if they were confident that the restriction itself were constitutional, there would be no need for any of this nonsense.

And all of this procedural mishegas is intentionally because they're not confident that the substantive abortion restriction is constitutional, but they want it anyway. So maybe we can explain how these proceedings actually played out in the federal courts and how the Supreme Court did slash didn't get involved in the case, at least yet. So you mentioned the lawsuit, right? So the big lawsuit here was it's filed by a bunch of plaintiffs, Whole Woman's Health, the Center for Reproductive Rights, you know, basically most of the big abortion providers in Texas. And you mentioned who they sued. They sued state court judges as a class. They sued state court clerks as a class. The clerk part, I don't want to sort of gloss over that. The clerk part's important because even if state judges have immunity, it's not at all clear why state clerks do. And then, as you say, a couple of private

defendants just to sort of, you know, so that there's at least one defendant with no immunity. They filed this lawsuit in mid-July, right? This did not happen last week. Like, the bill was signed into law at the end of May. The lawsuit was filed in July, right? It's just that the effective date is today. And the district court was proceeding along. The district court had, you know, entertained a motion to dismiss. The district court had denied the motion to dismiss, which is where the procedural gears start turning. And the district court had scheduled a day-long evidentiary hearing respecting the motion for preliminary injunction that the plaintiffs had filed for this Monday, for the 30th. And this is the point at which things start going awry. Okay, can I interrupt you for one second? So just in the denial of motion to dismiss, and you know this history better than

I do, am I right, The district court did find that at least as a threshold matter, these plaintiffs had sued proper parties, right? So there had been that finding. So we're airing some skepticism that I think is part of the design of the statute about how you get to federal court. But at least as an initial matter, this district court found, yeah, you guys get to be here and we're going to get to the merits. Yes. And to be clear, I don't think there was ever any concern that a pre-enforcement challenge would die for lack of standing. Right. I mean, I think there's, you know, under under even this court standing principles, it's quite clear that these providers have standing. I think the tricky part all the way through, as Leah already said, was who are proper defendants and do any of them have immunity? So the district court denied the motion to dismiss and the motion to dismiss was based

on immunity grounds or the doctrine that Steve mentioned, ex parte young. And what ex parte young says is even though states, that is, and state officials are generally immune from lawsuits, you can sue state officials in their official capacity if all you are asking for is an injunction to prevent them from enforcing a law. And so the state officials in this case had filed a motion to dismiss, arguing either that they were the wrong officials to be named because they didn't actually have enforcement authority, or arguing that they were immune because they are judges, or arguing, again, that they just were the wrong defendants to name. And so that's the motion to

dismiss that the district court denied. After denying the motion to dismiss, the district court then planned to consider the plaintiff's request for an injunction to prevent the law from being enforced on a statewide basis. And to make a long story short, I think that the way that I think about this is it is clear to me that at least many of the defendants are not immune. It is not clear to me that all of them are not immune. So that's where I think there's fuzziness here, right? Which is I think there's a plausible case that at least some of the judges might perhaps be immune, but that still leaves all the clerks, it still leaves the private defendants. And so this is where we have to talk about our dear friends on the Fifth Circuit, because this is where I owe Leah a mea culpa. All of the internet owes me a mea culpa because

I freaked out as soon as I saw what the Fifth Circuit did, because seeing the panel who, let me just introduce, Stuart Kyle Duncan, judge on the Fifth Circuit, Trump nominee, famous for misgendering transgender individuals, among other things, Judge Edith Jones, famous for so many things, I can't even begin to name them. But let's just say she's earned herself a rep, as well as Judge Englehart, another Trump nominee who was on the great Fifth Circuit panel that found the amendments to the Affordable Care Act unconstitutional and possibly not severable from the remainder of the act. So what this panel does is they issue an order.

The order says nothing about whether the defendants are immune. It says nothing about whether the law is unconstitutional. It says, hey, look, we've got to figure out whether this appeal from the motion to dismiss is proper. And so while we figure that out, we're going to stay the district court proceedings and prevent was to take effect and two days before the injunction hearing was scheduled. That was already playing with fire because by delaying the hearing, they were risking the possibility that the district court wouldn't actually have time to enter an injunction against this law before it went into effect. So the only thing I would add to that is if there was any defense of what the Fifth Circuit did, right, and this is, I think, the point where Lee and I very politely disagreed with each other over the weekend and where she has been borne out to be correct and I have not. If there was any defense of what the Fifth Circuit did, you can tell a story about how if a district court were about

to hold a preliminary injunction hearing over parties, all of whom were immune, having already denied a motion to dismiss, right? Well, a denial of a motion to dismiss is immediately appealable on the ground that it wrongly rejected an immunity defense, right? And so I think we would all agree that parties who had clear immunity defenses would have both a right to an immediate interlocutory appeal under something called the collateral order doctrine, right? And if the district court were going to proceed with the same subject matter as the basis of the immunity defense, would have a right to that relief. That is to say, would have a right to some kind of interim relief from the court of appeals blocking the district court from proceeding. The problems are twofold. First, not all the

defendants have that defense. Indeed, the one who moved for the stay is the one defendant who everyone agrees does not have that defense, who is the last person who should have had the at least prudential standing to ask the Fifth Circuit for an administrative stay. But two, even if you're going to do that, once all the briefs are in and the defendant who didn't have immunity has not convinced you that all of a sudden he gets like pendant immunity and therefore gets to appeal right away, you got to vacate the stay. And so, you know, the Fifth Circuit had set a deadline for the private defendant Dixon's response. I want to say it was 9 a.m. Central Time yesterday,

right? The benign version of the story is that at 9.15, the Fifth Circuit vacates its administrative stay, right? Where you could tell a story that, yeah, the panel maybe gave the benefit of the doubt where it shouldn't have, but once it had the arguments, it saw, oh, our bad, we shouldn't have done that, district court, go ahead. And indeed, we know the district court was ready to actually hold the hearing yesterday if it had to. The longer yesterday went on with the Fifth Circuit saying nary a word, the more Leah, I think, is right. And the more that Leah's reading of that is far more accurate than mine, because it suggests that this was not a, let's make absolutely sure everything's ducks in a row. This suggests that this was actually a deliberate attempt to stop the district court, which ought to have everybody howling insofar as at least one of the defendants had no plausible argument that he was entitled to any of that

relief. Now, the problem with that, of course, is the fifth circuit can come back and tell a story that, fine, will lift the administrative stay only as to the private defendant, right? And Judge Pittman can go ahead and have his preliminary injunction hearing against Dixon, but none of the state officials. I still think that would have been something, right? That they didn't even do that is what I find indefensible and is what put all the onus on the Supreme Court, where once it became sort of, I think, Monday afternoon, right, once it became clear that the Fifth Circuit might not do any of this, the plaintiffs asked Justice Alito in his capacity as circuit justice for the Fifth Circuit for either an injunction blocking SB8 directly or at least to vacate the administrative stay and get the hell out of the district court's way. And Justice Alito called for a response by five o'clock last night, which I think we all interpreted just as when he did that last week with MPP as a sign that the court was planning to rule last night. And we sat around last night waiting for the court to rule,

and it never did. And it still hasn't, as we sit here recording this. And so what does this mean? I mean, I think part of what makes this case so difficult is the rulings that we have, you know, from the Fifth Circuit, they don't talk about the merits of that Fifth Circuit order just administratively staying the district court proceedings together with the Supreme Court's non-decision is that in Texas today and until some court steps in, abortion providers are shut down because they are exposed to tens of thousands of dollars in liability and damages if they perform an abortion or if anyone assists a woman in obtaining an abortion. So that last part, I think, is really important because not only does it basically kneecap providers, it dismantles any network of support that a pregnant person might have in Texas. Like, I mean, if the barista at Starbucks can rat you out, who's going to be the Uber driver that takes you there? Or donating to Planned Parenthood. I mean, this is a Supreme Court that has told us over and over and over and over and over and over again that donations are protected political speech of the highest order, apparently except when they're aiding and abetting a constitutionally protected medical procedure.

So, I mean, guys, it is it is impossible to not be deeply cynical about all of this, partly because SB8 is an incredibly cynical law. And what the Fifth Circuit did, especially in hindsight, if I can slightly apologize for a week and me, right, is incredibly cynical. And because the fact that the Supreme Court couldn't be bothered to act. So, you know, and I want to talk about the court for a second, because, you know, I've been the sort of shadow docket Cassandra, as opposed to the real Cassandras for a couple of years. You have been there for a long time. And people have said that you're hyperbolic, you're crazy, like you're just making a mountain out of a molehill. But Steve, we have always believed you here on Strict Scrutiny. Who said I'm crazy, hyperbolic, I guess. I mean, I'm not going to tell you directly, but...

The irony of all of this is that last night was the court literally not doing what it's done in the shadow docket over and over again for the last three years, right? We have seen the court bend over backwards to move incredibly quickly in cases where claims of interference with the free exercise of religion were at stake, in cases where property rights were at stake, in cases where, you know, federal immigration policies were at stake. But abortion, the court, you know, lets everybody go to bed, even though it had asked for briefing by five o'clock. And so, you know, it's just the message that sends, like, this is, you know, this is to go back to sort of what the headlines were this morning.

I've been a little persnickety about saying Roe is dead. I don't think Roe is yet dead. But man, even if the court comes back, guys, while we're sitting here or later today and lifts the administrative stay and lets the district court go ahead and enjoin SB8, the message it sends about where they rank abortion in the pantheon of constitutional rights that are going to enforce is one that they can't take back now. The message has been sent no matter what they do going forward. So I think that's a really important point about sort of the expressive value of the inaction. But just as a practical matter, even if the court does come back and, you know, lift the administrative stay and allow the injunction hearing to happen, you can't really

unring this bell if clinics shutter or you can't unring the bell if whatever this, you know, sort of Meshuggah procedure has wrought creates incredible confusion on the ground among people who aren't lawyers in Texas. And that's something I think the incalculable cost of that is something you can't really wrestle with. People aren't going to know what the state of the law is. Larry Tribe and I wrote a piece in the Times in July about SB8, back when very few people I think were paying enough attention to it. And the piece that really boggles my mind, guys, is like, all right, I get it. There are people who are zealously dedicated to ending legal abortion in this country, right? But this won't stop with abortion. If state legislatures can run this procedural ploy

with abortion, they're going to try it with other stuff. That raises two possibilities. One, all of a sudden, most of our constitutional rights are going to become unenforceable. Or two, only some of our constitutional rights are going to become unenforceable. It's going to be the ones that the current Supreme Court doesn't like, but doesn't want to overrule. And that, to me, is the ominous part of all of this, is that this goes so much even even like as big as abortion is, this goes so far beyond abortion. Do we call this inaction? Of course, as a technical matter, it is inaction. Right. Because the Supreme Court did not act by the moment when the law went into effect. It has, you know, as you, Steve, have been chronicling, it has been incredibly active

on the shadow docket. It acts when the CDC, eviction moratorium, right? You know, it acts in very, very time-sensitive ways to protect or enforce all other kinds of constitutional rights, including the rights of landlords to exclude, and certainly religious liberty as the current Supreme Court understands it. So it acts with real speed and dispatch to protect other kinds of constitutional rights. So the decision not to step in to prevent the taking effect of this prohibition on abortion in the state of Texas is action, right? It is action. I think it just seems like a mischaracterization to suggest that it is inaction against the backdrop of the practice that has cropped up in the contemporary Supreme Court on the shadow docket. So that is, I think,

point one. And sort of another kind of broader point is just like, I was, I don't know, we've all now been watching the Supreme Court for a long time. I was pretty shocked by the sort of institutional failure that seemed to be in display in this decision to not step in, right, by the, you know, effective moment of this law last night. Even if you think, as I now really do think a majority or supermajority of the Supreme Court believes that, you know, as I now really do think a majority or super majority of the Supreme Court believes that, you know, Roe and Casey were incorrectly decided and, you know, should probably be overruled. If you care about the rule of law, you know, the idea that the highest court in the land would allow a state to pass a law that is clearly unconstitutional under the court's

doctrine and just not tell a state, no, you can't do that until we've actually changed the law, just seems to me, you know, an undercover of night and through this kind of silence, a fundamental offense against the rule of law and also just cowardly and irresponsible. So I was actually shocked. And, you know, sometimes you think you're sort of beyond being surprised by what this court does. And I actually learned last night that I am not. You just said so powerfully what I've been struggling to articulate all day, right? Which is, why was I so angry at the court last night, right? And it is the bait and switch, right? It is, you know, ruling at 11.56 p.m. the night before Thanksgiving in the Roman Catholic Diocese case, right? It's ruling at 10.30 p.m. the Friday night before a long weekend in April

in the, you know, California in-home gatherings case. I want to say sort of two quick things on that. The first is, for those who think that the short clock made it impossible for the court to rule, let me remind folks that it's been 10 whole days since Justice Alito issued an administrative stay of the Fifth Circuit decision in the MPP case to buy the court three more days. So if the court wanted to act last night but case to buy the court three more days, right? So if the court wanted to act last night but wasn't sure what it wanted to do, it could have issued a temporary injunction. It could have said, you know, this is an administrative injunction. We are enjoining SB8 literally for 72 hours pending further order of the court. That would have been unusual procedurally,

but not beyond its power. Even if they weren't sure yet what they wanted to do last night, they had the power. It's our monthly emergency test here. No, it's happening. It's happening right now. It's happening. They're coming for you, Steve. They're coming for you. Steve, run.

Run. Run, Steve. I'm about to be served with a lawsuit under SB8. As we got closer and closer to 1 o'clock Eastern time, midnight Central, was with you on like i can't believe the court's gonna do nothing and here's to me guys the real problem here's the disconnect which is there's a story that conservatives can tell about why it was appropriate for the court to not intervene right and the story is not about the substance of sba the story is about the procedural shit, which is to say, well, likelihood of success on the merits is a big part of whether we do emergency relief. Even if we think you're absolutely going to win on the merits merits, we're really not sure that you have the right defendants here.

That's the story they're going to tell themselves. But what I want to ask them whenever they tell that story is, OK, so do you think the same thing would have stopped the Supreme Court from issuing emergency relief if the tables were turned and this was a gun restriction or a religious liberty infringement? And the answer is no. And we have examples of the court taking, you know, sort of brushing procedure aside when it believes that the rights are so valuable. What I find sort of so galling about this is, you know, Melissa mentioned the folks who have been criticizing my criticism of the shadow docket.

The most aggressive one from the Beckett Fund was mocking me for just not thinking that constitutional rights are important. The denial of constitutional rights isn't an emergency to Professor Vladek. This is exactly the point. If that's what's been animating the shadow docket, what the hell was the court doing? I want to return to something, Melissa, you said, which is the expressive message that the court is sending here. Because if you look at all the shadow docket rulings, one takeaway might be that the real emergencies are when Trump administration immigration policies are enjoined and not so emergency when abortion becomes completely unavailable in an entire state. I expected, and I have said this repeatedly, that the Supreme Court, perhaps in Dobbs, the Mississippi abortion case that they will hear once this next term begins, would issue an opinion saying, we're not overruling Roe, but in practice, they would be,

you know, they would weaken its protections and allow states to regulate abortion out of existence. I did not expect them to practically and functionally allow a state to overrule Roe by saying nothing at all. It is truly just galling and so cowardly, as Kate said, for them to do this. In the middle of the night, doing nothing, saying nothing, and just allowing it to be read through these technical procedural lens when the effect of this decision is, again, the exact same as a decision saying, Roe is overruled, at least for now. You know, again, it's possible they will step in later and join the law. It's possible they will later say, no, Roe and Casey aren't overruled. But by allowing the state to, again, make abortion illegal through this mechanism, the right means nothing and abortion is inaccessible.

And like that is just the state of affairs that they have blessed. And I think one question is, you know, one possible way out of this morass for the court is actually to grant cert in this case and to set it for argument alongside Dobbs and to use it to split the difference, right? Like I could see a universe where, you know, there might be justices who say, aha, Texas, you know, you've given us what we need. You've given us the counter example of why if we affirm the Mississippi law in Dobbs, we haven't necessarily overruled Roe. But of course, even if they do that, I mean, Leah's point still stands. Like they still let it go into effect even for a day, even if there could be de minimis. Like all you have to do is read the papers that the Center

for Reproductive Rights filed in the Supreme Court. This is not de minimis. There are specific people they refer to in the papers who had cleared the Texas statutory waiting period, who are running up against the clock, such as it is, who now have to travel out of state and can't because of their personal circumstances. So I just, I mean, I guess it's a matter of degree whether you think the court has effectively overruled Roe. Like, I think they haven't overruled Roe. I think they have shown such gross disrespect for Roe and such shocking tolerance for a state's assault on Roe. And, you know, it was not so long ago that people were up in arms because they thought President Biden was thumbing his nose at the Supreme Court on the eviction moratorium. Of course, he wasn't. Texas is thumbing its nose at the court on abortion. And the court is basically saying, keep going. This is true. Even if like as soon as we're done recording, the court actually blocks the law or at least lifts the administrative stay because by not doing it last night.

I mean, the message they sent is this is just not important to us the way that other rights are. It doesn't really matter to me if you are insisting on discussing the procedural questions we were at the beginning of the show about ex parte young and sovereign immunity, or if you want to or not describe the court as overruling Roe or not. The important point is what the court has done is allow Texas to make it impossible to get abortions for some amount of time. Like that is just what is happening in Texas right now. We should say, though, right. So it's still I think the clinics have said at least some of them, they're still performing abortions pre six weeks and there isn't a medical emergency exception. So they're not all shuttered. But obviously, the vast, vast, vast majority of abortions in Texas are not happening. In their papers in the Supreme Court, the clinic said that they'd stop performing 85 to 90 percent of the abortions they were previously providing. I mean, Leah, I agree with all that. I think the other thing I would say to this is just that from the court's perspective, the procedural stuff,

yes, maybe it's cover, but first of all, none of the procedural arguments are open and shut in favor of any of what the Fifth Circuit did, right? Even if you buy them, they don't get you all the way to what the Fifth Circuit did. And in any event, and this is the statistic that I think is most telling, there are going to be folks out there who say, well, we don't always allow pre-enforcement challenges. There are some constitutional claims that you have to raise as defenses to enforcement proceedings. That's true in the abstract. No abortion restriction this severe has been allowed to go into effect since Roe. And that's because in every prior case, there has been pre-enforcement judicial review that has blocked it. And so it's not just that this happened, it's that this is the first time that this happened in the 48 years since Roe. And I

think that's part of why, at least here in Texas, it feels so cataclysmic. So we've been talking about the access to courts complexities that this scheme creates. It also seems to me that it does something else in addition to attempt to evade judicial review. It seems like you're the only one of us on the ground in Texas, Steve, but it's like, like, it seems sadistically almost designed to like increase division and rancor among the population, right? To, you know, we're talking about this generally as like this vigilante enforcement mechanism, but like literally it is about deputizing and encouraging private individuals to seek out, spy on maybe, sue their fellow residents of the state of Texas, it just seems like it should be anathema to any decent government

to encourage that kind of activity among members of the population. So it just seems like just deeply morally and politically, in addition to legally problematic, to approach regulating anything this way. But in terms of what you said, you said guns. People have been talking for the last day or so about if somehow this law does remain in effect, in addition to preventing abortion access, legal abortion access in Texas, and then any other state that decides to pass some kind of similar law. But in theory, red and blue states could decide to try to, you know, deputize private citizens to enforce prohibitions on laws that they couldn't outright prohibit, at least constitutionally. And you mentioned guns,

right? So a blue state basically saying, you know, we're not going to outright prohibit gun ownership, but we're going to allow any private person to sue anyone they suspect of owning a gun, or like intending to own a gun. I think there's like, also intending to aid in a bed is prohibited in the Texas law. It's just a dystopic vision of the future if this is what law could look like. Let me add another gloss on that, Kate. I mean, the landscape in Texas for many years has already been that the burden of these prohibitions, these targeted laws that restrict the work of abortion providers has been borne by poor women, rural women, and disproportionately

women of color. And these are already populations that are likely to understand themselves or to feel a level of state surveillance and just general surveillance from other parts of the population than their counterparts are likely. So I mean, it sort of doubles down on the sense of being surveilled within the state. And that too, I think, it sort of doubles down on the sense of being surveilled within the state. And that, too, I think is purposefully dystopic. We're still midstream here on what happens to SB8. And I think it's important for folks not to sort of lose sight of the fact that there's still no court that has actually said this is constitutional. But that's exactly the problem. And, you know, the harbinger it sends not just about where we are on abortion with regard to the Supreme Court, but about where we are on states using such transparently cynical measures to frustrate constitutional rights we just don't happen to like, I think is a sign I would not have thought the Supreme Court would have sent as recently as 12 hours ago.

So do you think, Steve, that we're going to see more laws like this from other red state legislatures? Yes, and we'll see them from blue states, too. And that's when we'll get, you know, the super awkwardness of trying to explain why some of those can be blocked pre-enforcement, but others can't. I honestly, I don't think there's a blue state legislature in the country who would do something this sadistic or cruel or insane to fellow citizens. I just don't. Maybe I'll be proven wrong. Under his eye. Under his eye, seriously. Blessed be the fruit. And thank you so much, Steve, for proven wrong. Under his eye. Under his eye. Seriously. Blessed be the fruit. And thank you so much, Steve, for joining us. Thanks, guys. And thank you listeners for tuning in. And thanks to our producer,

Melody Rao, and to Eddie Cooper for making our music.