Strict Scrutiny - Messing with Texas

Episode Date: September 11, 2021

Leah, Melissa, and Kate reconvene for another emergency podcast on Texas SB8, which is now being challenged by the federal government. Y’all, they are messing with Texas! Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, formerly your podcast about the Supreme Court and the legal culture that surrounds it, and now an emergency basis podcast about Texas's efforts to ban abortion and the

Supreme Court's willingness to go along with it. We're your hosts. I'm Leah Littman. I'm Melissa Murray. And I'm Kate Shaw. So last week, we did two emergency episodes on Texas SB-8, the law that allows any private citizen to sue an abortion provider who performs an abortion more than six weeks after a person's last period, as well as anyone who assists someone in obtaining or performing an abortion more than six weeks after a person's last period. The practical effect of the law has been to force providers in Texas to stop offering abortions more than six weeks after the last period. The abortion providers have sued to stop the law from going into effect.

And as we discussed in our previous episodes, the United States Court of Appeals for the Fifth Circuit, which oversees cases from Texas, prevented the federal trial court from considering the provider's request for an injunction against the law. And an injunction is an order that would prevent the state or state officials or private officials from enforcing the law. And just before midnight on September 1st, so the day the law went into from enforcing the law. And just before midnight on September 1st, so the day the law went into effect, meaning the law had already been in effect for a full day, the Supreme Court issued a curt 5-4 order declining the provider's request for an emergency injunction. Again, an order that would have prevented the law from remaining in effect.

The court did so, it insisted, because several unique features of the Texas law had created what the court described as procedural uncertainties about whether the providers were entitled to have a federal court give them an injunction against the law. The court insisted it was not weighing in or saying anything about whether the Texas law was constitutional. Instead, it said it was just saying that maybe there wasn't a way for the providers to challenge the law in court, which would mean that Texas could enforce a law that is flagrantly unconstitutional, hat tip Justice Sonia Sotomayor, under the Supreme Court's existing abortion cases, which recognize that people have a constitutional right to have an abortion before viability. As we noted in the episode, that didn't necessarily mean this was the end of legal battles involving SB-8.

In particular, while the court had suggested that the providers, who are private citizens and private organizations, may not be able to obtain an injunction against the law, that didn't necessarily prevent the United States, the federal government, from obtaining an injunction against the Texas law. After hearing that bat signal, the United States on Thursday, September 9th, filed a lawsuit against the state of Texas in federal court seeking a declaration that SB8 is unconstitutional and an injunction that would prevent the state and its officers, as well as individuals acting under SB8, from doing anything to enforce the law. Here's Attorney General Garland announcing the lawsuit. Today, after careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the state of Texas. So today we're going to discuss this lawsuit, why it addresses the purported or alleged procedural defects with the provider's lawsuit,

and how the case might proceed from here. But before we get into the lawsuit, we did want to issue a few corrections, not to things that we said, but to things that other people said, including Supreme Court justices. So the first correction errata is to Texas Governor Greg Abbott. In describing SB8, Governor Abbott said, Obviously, it provides at least six weeks for a person to be able to get an abortion. Excuse me, what's this on my library? Oh, it's my new favorite teen novel. Are you there, God? It's me, Greg Abbott.

Greg, this is not how pregnancy works. I hope someone is on your side. Do we need to explain this to listeners? Like, should we spell this out? I mean, this displayed such a- There's a thing called a period. You get a menstrual cycle that is separate and apart from getting pregnant and the act of conception or fertilization. That is, after you have your period, you can get pregnant. These things are separate in time. Was that clear enough? That's a good start, Leah. I wish the

governor had had that tutorial on lady parts before he had that press conference. I think it would have been illuminating. So again, read up on it. Someone on your staff should be able to tell you, but don't have press conferences where you're waxing on about the menstrual cycle when you clearly don't know how it works. Wait, can we flag one other thing that Abbott said in the same press conference, which is he was asked about the absence of a rape exception in this Texas law. So it has this ill-defined emergency exception. We don't even really know what that means, but it doesn't even purport to have any kind of rape exception. And in response to a question about the lack of exception, he basically said,

Let's make something very clear. Rape is a crime. And Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets. So goal number one in the state of Texas is to eliminate rape so that no woman, no person

will be a victim of rape. Great news, you guys. Because they weren were before. Why hasn't Texas done this before? Yeah. That was weird. Magic, magic bullet. There's a silver bullet that will stop rape in the state of Texas,

and they have just been waiting to deploy it, and now they're going to. I mean, it was just a mind boggler. I'm actually not sure which answer, which his revealed lack of familiarity with the female menstrual cycle or his secret plan to end rape. But but it was that heretofore had never actually been in action in Texas. Right. OK. The second correction or errata is really just some noting of additional evidence for

something we talked about in a previous episode. Recall that the Supreme Court order denying the provider's request for an emergency injunction said that the court couldn't or wouldn't issue that injunction because, quote, their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. So basically, some uncertainty means no relief. As we mentioned last time, the court has granted various kinds of emergency relief, including injunctions, but also stays in circumstances where there was uncertainty about a lot of different procedural issues. So Leah, do you want to highlight some of these? Sure. So on the last episode, we mentioned how they enjoined a New York coronavirus measure

that was no longer in effect and wasn't being applied to the plaintiffs who were challenging it. There were also considerable questions of procedural uncertainty involving the legality of the executions that the Trump administration carried out in the waiting days of the administration. Yet the Supreme Court allowed the Trump administration to carry out those executions without ever definitively resolving the procedural issues that the lower courts had found with those executions. So what did we learn this week? It turns out they sometimes can and do issue various forms of emergency interim relief, even when there is uncertainty. How do we know this? preventing Texas from carrying out a planned scheduled execution. Mr. Ramirez is arguing that the state is unconstitutionally denying him the ability to have a preacher physically by his side and audibly praying for him when he is executed. As it turns out, that claim appears to raise some or involve some unsettled legal questions.

Right. Since the court moved quickly and ordered the parties to submit briefs and set the case for argument on November 1st. So again, turns out, spoiler alert,

the Supreme Court can grant emergency relief on an interim basis while they resolve important unsettled legal questions. Who knew? Can I just read the last sentence of Justice Kagan's dissent

in the order denying the relief that these providers sought on the night of September 1st? She says, in these ways, the majority's decision is emblematic of too much of this court's shadow docket decision making, which every day becomes more unreasoned, inconsistent, and impossible to defend. I mean, just every day. That was a week ago. It's more inconsistent this week than it was last week, and it's really, really hard to defend. I do want to say, we're not at all disputing the court was correct to act here. It is the inconsistency that Kagan is pointing to that is just so maddening. This case, Ramirez, was one that was argued as an emergency appeal on the shadow docket, but the court actually migrated it to the merits docket, setting it for argument in November. So

ostensibly, that is something that could have happened here as well. Well, I actually, I think it's worth asking about that. So yes, it could have, of course, it could have issued the injunction and here being in the Texas abortion case. So there were four votes, obviously, there were four dissenters and four votes is the number of votes it takes to grant a cert petition. So if it's been styled as a cert petition, I think it is an interesting question. What I don't think the court could do, at least consistent with its ordinary practice, is to take up a case that has never been heard on the merits in any lower court. Now, it could skip the Fifth Circuit, but because no district court had even ruled on the substantive merits of the constitutional question in the SB8 case. So, I mean, they ruled on immunity, on sovereign immunity, but not on the substantive constitutionality. So it would have been certainly atypical for the court to take it up. But the court can do whatever it wants. You're pointless and you're right. And just taking it up rather than denying relief, like, I wonder if the four in dissent gave some thought to how to try to do that. Well, it seems like the court did whatever it wanted. Yeah. Maybe this is what it wanted. Now on to the latest front in the legal challenge

to Texas SB8, and that is United States versus Texas, the good lawsuit of that name. So it's not the only lawsuit of that name. Steve Vladek, Commander Steve, a frequent guest on this podcast, let me know that there's another United States versus Texas. And then he asked me to just do a little Google search or Westlaw search to see how many times the United States has sued Texas for things that it turns out a lot of times. And it also turns out Texas has sued the United States a bunch of times too. So this is a set of repeat players, you might say. Don't mess with Texas, as it were. But no, do mess. Well, Merrick Garland's like, I'm a mess with them. Let's do it. All right. Let's talk about

this lawsuit. Yeah. In order to understand why this lawsuit has a better chance and addresses the purported defects with the abortion providers lawsuit, let's recap what the court said and what the state had argued were the procedural questions that prevented the court from determining whether SB 8 was constitutional and issuing an injunction against it. So those flaws included the following. One was whether the providers could sue judges, name judges on state courts as defendants and get an injunction that named state court judges as defendants. The providers had named the state court judges as defendants because if you're a private citizen, you can't sue the state of Texas.

You can't name the state of Texas as a defendant. So they instead had to identify certain state officials, and they named state judges, among others. Also, there were questions about whether the plaintiff providers could name state officials as defendants, not just the state court judges, but also others, when the state had said, we the state and any state officials are not involved in the enforcement of these lawsuits at all. So those were the questions in the provider's lawsuit that the Supreme Court had identified that prevented the court ostensibly, or so they said, from issuing an injunction against SBA.

So in this lawsuit, the United States is arguing that Texas SBA is illegal for really two reasons. One is that the law violates the due process clause because it limits the ability to obtain an abortion before viability. So it violates Roe versus Wade and Planned Parenthood versus Casey, the decisions announcing that the Constitution protects the ability to get an abortion before viability. Second, the United States is arguing that the Texas law is what's called preempted by a series of federal laws and regulations. Basically, state law can't be enforced if it undermines certain federal law or if the state law is being applied against federal officers or to undermine federal contractors carrying out a federal program. And here, the United States says, there are a variety

of federal programs that require the United States says there are a variety of federal programs that require the United States to offer assistance to people who choose to get abortions, including Job Corps, the Federal Bureau of Prisons, an immigration program, the Office of Refugee Resettlement. And so the United States says by potentially imposing liability on federal contractors or federal officers who are merely carrying out their jobs to enable people to get abortions if they so choose, the Texas law is interfering with federal law and federal governance and federal programs. I have to say that's a very interesting claim because in the whole run-up to this lawsuit when people were talking about ways that the Biden administration could intervene,

there was talk about, could they set up abortion providers in VA hospitals or on military bases and things like that? And I think the Hyde Amendment always consistently came up as an impediment to being able to facilitate abortion in that way, using federal facilities and property to administer abortions.

But this is actually slightly different. There are these jobs that don't necessarily require the federal government to subsidize abortion, except in certain cases that are still permitted under the Hyde Amendment. And by imposing liability on federal officers or contractors when they do those things that are within the scope of their duties, you have essentially the state preempting the execution of a federal program. And we should just define for people who aren't familiar with the Hyde Amendment, this longstanding appropriations rider that prohibits the use of federal funds in the provision of abortions. So Leah, I am no proceduralist. So I have a ton of questions

about why the flaws disappear in the United States. So I'm literally looking to you to help me out here. So one, it's my understanding that based on sovereign immunity, the district attorney or the head of the Department of Health is because private citizens can't sue the state for imposing upon their constitutional rights, but the United States can. And so that's what the federal government has done here. But how does it then get around the question of whether or not naming Texas manages to encompass not only Texas and its officers, but also the private citizens? I think it does that for a few different reasons. One is the lawsuit asks a court to issue an injunction that would apply not just to Texas and Texas state officials and officers, but also anyone acting under the authority of Texas law, SB 8. And I think that is a totally fair request for an injunction against this kind of law.

Because as we talked about in one of our previous episodes, I can't remember which one, the United States can challenge unlawful state action. And there's no question here that the individuals who are authorized to sue the abortion providers can only do so by virtue of this state law. And so I think it's totally reasonable for a federal court to say, look, we have the power to enjoin unconstitutional state action being done under the auspices of the state that is cloaked with state authority. And Texas gave these private individuals authority. And so the injunction can run against them and extend to them as well. But even if that's not right, that is, even if a federal

court says, I'm not going to issue an injunction that says in so many words, this injunction runs against any private individual enforcing the law, if the injunction only ran against Texas and all state officers in Texas, that would apply to state courts and state clerks and prevent them from docketing cases filed under SB8 or adjudicating them. And so that, that is preventing these lawsuits from even being processed or docketed, would give the abortion providers relief because it would mean these lawsuits are just done the second they're filed. They never get off the ground. Or can't even get filed, right? Because the state clerks would actually accept a filing, just would be enjoined from doing so. Yeah, the state court clerks can take them and put them in a special

bin labeled garbage, and that's what they can do with them, but they can't actually file them. So you're saying it's completely immaterial distinction, like actually enjoining private parties versus enjoining all the state actors, because this is, the scheme requires courts to work. Right. And those court employees, judges, clerks, et cetera, are obviously state employees. So Leah, there's another argument here that you can't actually sue the state court judges because they may actually be immune from suit. What do you say to that argument? I say that's interesting but irrelevant because here the United States sued the state of Texas. They didn't actually name state court judges. And even if the United States sued the state of Texas. They didn't actually name state court judges.

And even if the United States is suing the state of Texas and getting an injunction that would apply to state officers that include state court judges, it doesn't actually matter that the individual officers might be immune when you sue the entity that they work for. So just by way of an example, if you sue an individual police officer for damages and you say like that individual officer violated my constitutional rights, a court might say, well, that individual officer doesn't have

to pay you because they're protected by this doctrine of qualified immunity. That is, they might be immune from lawsuit. But even if the individual officer is shielded by qualified immunity, that doesn't shield their employer. So even if the individual officer is immune, you can still potentially sue the officer's employer. And so the idea that the judges might be immune, that that somehow prevents the United States from suing the state of Texas is just inconsistent with how immunity doctrines work. That's actually really helpful. Definitely.

Okay. So can we also talk about standing? Like, so how does the United States define its injury here? Sure. So just by way of introduction to our listeners who might not be immersed in this doctrine. You know, they can actually listen to our Irrational Basis Review podcast where we do actually explain the justiciability doctrines, including standing.

So, hmm. That's true. That's true. But let's say you want to listen to this one first before getting a deep dive. So standing is the rule that requires people who want to sue in federal court to demonstrate that they have an injury, that they've been injured in fact. And so the United States has to show some injury here

that can provide the basis for their lawsuit. And they're basically asserting two different kinds of injuries. One is injuries related to the lack of abortion access in Texas. They're saying, you know, when people's constitutional rights are being violated by Texas shutting down these abortion providers, that's an injury that the United States can assert in court, right? When states are violating the Supreme Court's cases, undermining the supremacy of federal law, the United States can sue to vindicate that interest in federal court. So that's one category of injury. The second is the harms to the federal programs that we were talking about earlier, namely the

prospect that the state might impose liability on federal officers or federal contractors who are just trying to carry out their jobs. That's a harm and an injury to the United States' interest in carrying out federal laws and federal regulations and programs. So can I ask a question about the issue of the United States being injured if a state refuses to observe or actively defies existing Supreme Court precedent? So the precedent that the Department of Justice cited here was a case called Debs, which is about Eugene V. Debs. I don't know if he was a communist or an anarchist or both, but there's a lawsuit involving him in the early 1900s. But a number of courts have subsequently decided in lawsuits that the reach

of that precedent is more narrow. And they've argued that, and pundits have argued, that Debs doesn't go as far to permit the United States to assert this kind of injury in a case like this. What do you say to that? I mean, I say sure, in the normal case, because in the normal case, people themselves can raise and enforce their constitutional rights. But this is no ordinary case. So to the extent this lawsuit is different and new and looks different than previous lawsuits DOJ has brought, that's because the underlying Texas law is itself unprecedented. And it's because the people who are hurt, the individual citizens who are hurt, Texas has designed this law in a way that prevents them from vindicating their own rights. for the United States to be able to assert an injury, not only on behalf of the individuals

who are injured because they can't obtain abortions, but in the more general interest in the supremacy of federal law and enforcing constitutional rights. So again, I get why this seems a little bit wonky or different, but I mean, gosh, the Texas law itself is like wonky and insane and crazy. And so of course, it's going to result in different kinds of lawsuits. Like just by its nature, that was inevitable. Well, that was the point, like to make it as quirky as possible so that you couldn't have a traditional challenge to it. Okay. Another question.

And Leah, you're doing such an awesome job sort of walking through this. So thank you. So the injury, the standing question or set of questions are sort of distinct from the availability of a cause of action. There will be an argument that how is the United States even getting into court in the first place? What is the vehicle that gets it there? What is its cause of action? And how is the United States or how do you respond if those questions arise? Sure. So again, just to define the term, a cause of action just means some authorization to

sue. Some law or some principle says you, the United States, or you, private citizen, can bring a lawsuit when you're injured or to enforce this right. And oftentimes, that cause of action will come from a federal statute. And here there isn't a federal statute that says the United States can sue states when they're violating people's constitutional rights and trying to insulate themselves from judicial review. But I just think that is so well settled by precedent that the United States has a cause of action against states, both to protect federal

programs from interference by the states, as well as to enforce constitutional guarantees, including the supremacy clause, that that argument to me is, I guess, to explain why I think that argument is so frivolous. It's helpful to think back to the lawsuit that the Obama administration had litigated successfully against the state of Arizona to challenge Arizona's anti-immigrant law. I think it was called SB2. And the United States sued Arizona at no point in that litigation, which again made its way all the way up to the federal courts, including the U.S. Supreme Court. Did anyone, including Supreme Court justices, question whether the

United States had a cause of action to sue states for acting unlawfully? That's just something that is so well established as a matter of tradition in so many cases that I think it would be really extreme to all of a sudden question whether the United States has a cause of action against states when states can sue, you know, the United States when they argue the United States is acting unlawfully. I mean, it can't be that the state of Texas, of all states, can't be sued by the United States when the state of Texas has launched a gazillion and one and then some lawsuits against the United States. Like, that's just a completely untenable asymmetry that states can against the United States, like that's just a completely untenable asymmetry that states can sue the United States when they say the United States is acting unlawfully,

but the United States can't sue states when it thinks states are acting unlawfully. That does not describe, you know, a federal system of government. It is essentially an action directly under the Constitution, right, in terms of what the complaint alleges, a violation of the right to abortion protected by the Supreme Court's cases under the 14th Amendment. And so that there is essentially a cause of action directly under the Constitution that the federal government can bring. And thinking about a world in which states can sort of shift policy disagreements into the federal courts. And every time, I mean, obviously, we're recording this just after President Biden has announced that there are going to be

a bunch of sweeping new vaccine mandate requirement incentives, sort of frame them, I guess, in how you will. And clearly, states are going to sue over that. And it's just like a dystopic world, I think, a vision of a world in which states can constantly sue, and successfully so, to challenge virtually all federal action. And yet the federal government is disarmed from doing that when states act in what everyone agrees are explicitly unlawful and unconstitutional ways. And yet I think there's concern that this Supreme Court might be receptive to a, you know, superficially really kind of formal and procedural argument that would prevent the

United States from actually getting to litigate this case on the merits in the federal courts and the Supreme Court. But maybe let's save that sort of predictive discussion. But I do think it's something that is cause for concern. Well, maybe we should just turn to that now, because some of the reaction, at least initially on Twitter and elsewhere, was like, why are they bringing this lawsuit? You know, the Supreme Court will never let them win, whether it be on those procedural grounds that we were talking about, or otherwise based on, you know, what they did in the abortion providers case. So I guess, what do we kind of think about that? I think about it not necessarily in the register of law, but in the register of politics. And it may be helpful to sort of see what I mean or hear what I mean by listening to the attorney general

as he discussed why they chose to bring this lawsuit. So here's a clip. This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents. Nor need one think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that empower any private individual to infringe on another's constitutionally protected rights in this way. The United States has the authority and the

responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights. In this clip, it feels like he's not really talking to the public, but rather is actually talking to the court. Like there is a grave, grave danger if states and localities, subdivisions of the United States can essentially say, we're not going to abide by decisions of the Supreme Court. Like whether you agree with them or not,

Roe and Casey are the existing precedents dealing with abortion. And what Texas has basically said, for our purposes in our state, we're not going to abide by that. I mean, it's a lot like, I think, the post-Brown situation where the South was like, yes, you said this stuff about integration and Brown. But guess what? We're not going to do it. And then the court writes an opinion in Cooper versus Aaron saying that, you know, not only is what is in the Constitution stuff that you have to observe and abide by, but when we interpret the Constitution and decide what it means, those pronouncements also take on the force of constitutional law. So I think he was reminding the court and perhaps that five-person majority that you are skating into an area here. Maybe you don't want to be here. This might not be where you need to go. But you are

basically setting up a situation where states can basically say they don't think the Supreme Court and its decisions are legitimate and they don't want to follow them. And that goes for blue states as well as red states. Right. Yeah. There's a sense in which this lawsuit could successfully appeal to the kind of institutional vanity and self-regard of the Supreme Court, regardless of the specific, you know, the hostility that a majority of this court clearly harbors toward the substantive jurisprudence around abortion. And what, I mean, I just that that seems to me a framing that could, in theory, appeal to the court in a broader way. I think this is red meat for the blue base, right? I mean, there have been so many people over the last week who have been like, you know,

is the Biden administration going to do anything? Are we going to have a state that basically says, like, we don't care about what the Supreme Court says, like, and is the Biden administration going to let that happen? And I don't know that they had any real choice, but to do something and, you know, the initial plans that were floated, you know, robustly enforcing the FACE Act, which is the Freedom of Access to Clinic Entrances Act, probably weren't going to do it. Because the problem isn't getting into a clinic, it's getting into a clinic and getting the service that you want to be provided provided. And, you know, that wasn't it. So this, I think, seems more robust and I think speaks to the base that wanted to see the Biden administration do something significant. And like maybe, you know, that wouldn't be reason to bring

the lawsuit if you think the lawsuit like would result in some additional harm if you lost. And I actually – I think it's more likely than not that, of course, the Supreme Court is not going to allow this lawsuit to proceed, even though I agree with you, Kate. It is pitched in terms of institutional vanity. I still think it was worth doing. Like, you can't just sit back and take it when someone is giving you the middle finger. And, you know, again, allowing a state to ban abortion without overruling Roe and allowing the state to get away with its gambit to, again, ban abortion without having to answer for that. Like, Dahlia Lithwick wrote this wonderful column about how the Supreme Court's order was basically just telling people, like, sit back and take it. And, you know, I just think it was not an appropriate

response to just be like, yep, that's what we'll do. You know, give me the football again, Lucy. I mean, come on. I totally agree that the administration needed to do something. And I do think that one advantage here is that it could actually dislodge this case in the lower courts. Like, I mean, I just feel like I want to like scream from the rooftops, like the Fifth Circuit still has this stay in effect. Like, it is just crazy that they put the district court proceedings on hold prior to the effective date of this law. And we are a week and a half later, and there's nothing happening because the Fifth Circuit hasn't lifted that stay, and it's insane. And so I think that just the entrance of a new player, and like a big player, obviously, the federal government,

into this litigation, which I gather is being consolidated with or at least assigned to the same judge as is presiding over the initial complaint filed by the clinics might at least shake things loose so that like right now it's just kind of like, well, the status quo in Texas is there's, you know, basically no abortion after six weeks. And I just, I mean, you sort of worry about, you know, framing and Overton windows and all of a sudden it's like, well, this state of the world has existed for a while. And all of a sudden, it doesn't seem so wildly anomalous for an actual abortion ban to exist in the United States today. And so that I think is sort of thing one. And then just as I sit and think about the possibility of the court, you know, kicking this United States suit, just like it's so perverse, the idea that not only states can sue the federal government,

the federal government can't sue the states, but this Texas law basically says literally any psycho can get to court, and yet abortion providers, spiritual, you know, people who provide counseling and spiritual guidance to women thinking about maybe terminating a pregnancy or maybe not,

because they're plaintiffs too. The federal government, like no, you know, people with huge stakes in this can't get to court to actually have their cases heard. But people who have literally no stakes, and it's not exactly, it's not that the Supreme Court is letting these, you know, potential plaintiffs in because these are state court actions. But it's just so perverse to think about a world in which people with no stake get to go to court to enforce this law and people with unbelievably concrete stakes are just out of luck. Well, not only that, it's abortion providers who can't perform abortions, people who can't obtain abortions, they can't sue. But the state of Texas can sue the federal government because they argue some federal immigration policy will result in like two or three additional people living in the state of Texas,

or like one additional person purchasing state run health insurance or getting a driver's license. I mean, come on. While we were sleeping, Mexico, which also has a federated system, not unlike the United States, had a federal court in Mexico essentially issue a decision that is believed to set a pathway for legalizing abortion in that incredibly populous Catholic country. And, you know, the contrast between what is happening in Mexico and what is happening across the border in Texas could not be more stunning. You know, the United States is one of three countries, Nicaragua and Poland are the others that have actually rolled back abortion rights over the last 10 years, whereas other countries, even very Catholic countries, where I think there's more divided views on reproductive rights, have actually moved in

favor of liberalization. So again, just some global context to frame all of this. so um i guess the united states did shake the tree loose because uh as we are recording this some breaking news the fifth circuit just released a pericurium decision in which it made the following conclusions it said the district court proceedings, which, again, were on the cusp of granting the providers a request for an injunction, are officially stayed because the U.S. Court of Appeals for the Fifth Circuit has concluded that all of the state defendants, the state officials who the providers named are immune. And so they can't be sued. So the Fifth Circuit made official what its administrative stay seemed to imply and that just means the district court proceedings are now definitely on hold

and that is going to persist a little bit longer in this case and in those proceedings. I mean, I guess I have to give the Fifth Circuit credit for deciding, for issuing this opinion while we're taping so we don't have to schedule yet another emergency episode. So that is the one and only time I will ever say anything nice about the Fifth Circuit in these proceedings. So I guess thanks. Wow. Yeah. And they, so, but this decision, the Fifth Circuit's decision, they have just issued a stay. They haven't formally decided the appeal. And so because of that, this isn't a final decision of the U.S. Court of Appeals for the

Fifth Circuit that the providers could appeal to the Supreme Court by way of a petition for certiorari. It is just a decision on a stay. Again, they could seek a stay of the stay, as they did effectively when requesting an emergency injunction from the Supreme Court. But this isn't the Court of Appeal's final decision. Although given what they say here, right, like we know what's going to happen. We should say there remains that private defendant, right, Dixon? Oh, yeah, no, they, the Fifth Circuit denied the provider's motion to dismiss the private defendant's appeal, which, by the way, is completely effing nuts, given that the only reason why the defendants could of the district court just denying a motion to dismiss is a private defendant. So, I mean, Fifth Circuit per curiam decision, you know, right, right on.

But speaking of how courts are not political, or maybe speaking of politics and law our boy steve breyer um continuing on his book tour uh decided to the book tour with the best timing in the whole world it's like a what do you think he tells himself before he lets these words fly out of his mouth? You know, I want to believe the best. I mean, I actually think he was very disturbed by what the five justice majority did last Wednesday. And, you know, he's reiterated that. But I think there's a way in which he has managed to disaggregate what is actually happening in real time from the particular question of his own retirement and what role that may play in this and in the future. And so I just there's a dissembling going on that I think is really interesting. On a future podcast, we will psychoanalyze Steve Breyer.

That's not what I meant. We and he tell ourselves. ourselves now I'm just kidding. But as you were saying, you know, Justice Breyer on this book tour, in an interview to National Public Radio's Nina Totenberg said that the Supreme Court's decision to allow the Texas abortion ban to go into effect was quote, very, very, very wrong. Coming in hot, Steve. Coming in hot. He also said it's a huge mistake, huge mistake, to decide major things without the normal full argument. Seriously, Steve, if you're looking to offer some takes or these kinds of takes, we'll happily audition you for a slot as co-host or regular contributor on the pod.

He's like, I am a no audition talent. Like I'm just offer only. You think that these are his auditions? He's trying to secretly communicate with us. Well, should we just make him an offer? I think we should make him an offer. The offer is conditional on him not having a second full-time job.

Like that. Those are the terms. Those are the terms. I'm sorry. But if he accepts those terms, that's he's got the job, right? Yeah. There's a microphone with your name on it.

You'll get all the good cases. And we won't make you. Exactly. We'll let you lead the discussion on all of the good cases. We'll even let you talk first. And you don't have to open the door when people knock. Nope. Well, this has been another fantastic dispiriting episode.

I mean, I was glad to see this lawsuit. I think this is good work by the federal government, the kind of work the federal government should be doing. Do I think this is the magic bullet that is going to save abortion access, Roe and abortion access in Texas specifically. No, no, I'm not super confident about that. So do you want to hear my secret fear? Like depending on what gets to the court and in what time, like what if they actually decide Dobbs first or get to Dobbs and basically say, you know what, these are no longer precedents,

and then you don't really have an argument for this lawsuit anymore. Yeah, I mean, that could happen, but it took it to be a result of this lawsuit, right? No, no, no. I'm not saying no, but I mean, I think there's like this lawsuit could be gutted if there were action and Dobbs. So I mean, I just took it to a dark place. Yeah, but then Texas and other states don't even need this like workaround at that point. I mean, obviously, there's a space between 15 and six weeks. And if they do something narrow in Mississippi, which is a 15-week ban case, you know, maybe Texas tries. Or there's like this question, which is like, yeah, they could just ban it outright.

But like this insane, sadistic, turning Texan against Texan-like scheme is actually something that they want as opposed to they need because they can't prohibit it outright, at least right now. So maybe they can't. Maybe there's a more hopeful posture, which is, you know, the fact that the Justice Department brought this lawsuit, again, this is a political kind of move. You know, the court recognizes that, you know, all eyes are on them. And, you know, maybe this means in Dobbsbs you don't get the kind of full-throated evisceration of abortion rights. Maybe it's a quieter, subtler hollowing out the way we had predicted. But the politics of this suggests that maybe overruling Roe right now is not the way to go. You need a strong response to enactment of laws like this and action like the action of the Supreme Court in letting this law go into effect. And that has to be from all quarters, sort of whether

or not it's ultimately successful. I was just thinking like, I mean, you're reading the order, it's just like, it's a really shocking dereliction of responsibility on the part of the Supreme Court. And it's like, you know, this order needs to be at some point like relegated to the shadow docket anti-canon, right? The shadow do docket's now got it's like so extensively built up at this point all green on that well or vladek who's got a new book right um uh he announced in the last day or two about the shadow docket so like it's going to have its own anti-canon at a certain point and this i think is going to be at the top of the list and i do think that in terms of what makes something anti-canonical the kind of responses from a lot of different quarters really matter and so so I do think that, again, you know, it's the Texas law as opposed to the Supreme Court's

blessing of it that is what this lawsuit takes aim at. But I think it's all sort of part of the same story. It's all part and parcel. And the court has got to understand that it too is in the spotlight and for reasons that I think they would not want, or at least some of them would not want and would care deeply about. Yeah. Anyway, tiny bit uplifting at the end there. I don't know. I actually was encouraged by the outpouring of outrage that this prompted. I wonder if it would almost be better if the court overruled Roe in Dobbs because people would literally lose it. I mean, I think this was sort of a harbinger of things to come. Thanks for joining us for another one of these so fun emergency episodes. We'd like to thank Texas for giving us the occasion to meet so frequently over the last

couple of days. We appreciate you. Y'all, clear eyes, full hearts, can't lose. We'd like to thank our producer, Melody Rowell, for working double, triple, quadruple time to get these done. As always, we're grateful to Eddie Cooper for making our music. And we are especially grateful to Attorney General Merrick Garland, Lisa Monaco, Vinita Gupta, and Kristen Clark, and the DOJ for not sitting back and taking it.