Strict Scrutiny - Pineapple & Rage

Episode Date: September 4, 2019

In our final summer episode, it’s a reproductive rights and justice block party (or wake, depending on your perspective). Leah, Melissa, and Kate discuss the reproductive rights and justice cases that made their way to the Supreme Court, the cases that almost made their way to the Court, and the cases that might make their way to the Court soon. They also point out how many of the Court’s cases have implications for reproductive justice before walking through some recent reproductive justice litigation involving the Supreme Court bar. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Leah Lippman. I'm an assistant professor at the University of Michigan Law School. I'm Melissa Murray. I'm a professor of law at New York University School of Law,

and I'm also the faculty co-director there for the Birnbaum Women's Leadership Network. And I'm Kate Shaw. I'm a professor of law at Cardozo Law School in New York City, and we are missing today our fourth member, Jamie Santos. Going forward, it's going to be usually two or three of us on every episode, but not typically all three of us plus Jamie, so your full strict scrutiny team. And once the term starts, we'll be dropping a show about every other week, usually with just two or maybe three of us on each show. So you'll hear from all of us regularly, but not all of us on every single show. And on this particular show, we are going to cover what goes into reproductive rights and justice and what kinds of Supreme Court cases are relevant to reproductive rights and justice, cover our recurring issue, strange bedfellows, this time in the field of reproductive rights and

justice, and then discuss some possible reproductive rights and justice cases that might make their way to the Supreme Court sometime soon. And then on our legal culture segment, discuss some recently filed reproductive rights and justice litigation related to the Supreme Court bar. It's going to be a good one. Hot tea being spilled. All the time. All right.

So many of you are at home wondering, Melissa, what does she mean by reproductive rights and justice? And that's probably because although you're familiar with the term reproductive rights, which typically means abortion, access to contraception, we don't really hear a lot about reproductive justice. And this is a more recent term, one that copped up in around the 1980s, late 1970s, and again was sort of held out as a contrast to the reproductive rights movement because it explicitly focused on the conditions under which women and men were able to actually think about the question of whether or not to bear or

beget a child. So the issue wasn't solely about abortion or contraception, but all of the various background conditions that might go into deciding whether or not to be a parent. And so for that reason, reproductive justice or reproductive rights and justice is necessarily a more capacious frame in which to think about these kinds of questions. It includes not just the question of access to abortion or access to contraception, but also the workplace conditions that might shape one's decision about whether or not to parent, the social conditions about whether or not to parent or even how to be an effective parent. It could include economic justice, access to not just contraception, but more broadly, all of the conditions under which individuals might make the decision about whether or not to become a parent or form a family. Now, you and Kate, Melissa, recently co-edited a book with Yale Law's Reva Siegel, Reproductive Rights and Justice Stories, that tells the stories of a number of reproductive justice cases.

And in that book are essays about the big reproductive rights cases we all know, like Roe v. Wade or Planned Parenthood v. Casey. But it also includes some other cases as well. Right, Kate? Yeah. So Melissa writes an essay about Griswold v. Connecticut, which is this important precursor case to Roe v. Wade, really about contraceptive access. Right, Kate? colleague at Michigan did a chapter on Hibbs v. Nevada, a case involving a challenge to the Family and Medical Leave Act. There are cases involving drug testing pregnant women and sterilization. So just as Melissa was saying, cases that talk about issues that go beyond the scope of just abortion and contraception, and also sort of use these frames that highlight the intersecting relations of race and class and sexuality and sex. And so I think when we say

reproductive justice, we mean to bring all of that into the conversation. So I think we'll probably start talking about the cases on the docket that are more traditionally kind of repro rights cases just today. But we'll talk about some others and also some cases that don't seem to arise in this area at all, but actually might have pretty significant implications for reproductive rights and justice cases down the road. And let me just say, when we talk about reproductive rights and justice, and one of the things that Reva and Kate and I talked about when we were framing this particular project, and the way that Kristen Luker and I talked about this when we were writing our casebook on reproductive rights and justice, which was the first casebook to sort of define the field, we really wanted to be attentive not just to the sort of standard narrative about women

and reproduction, but we also wanted to bring in men. Like reproductive rights issues are men's issues. They are issues that profoundly impact people who are on the margins. So women who are incarcerated, women of color, women who are not native English speakers, women who are undocumented. So this lens is not just more capacious in terms of subject matter. It's actually more capacious and more inclusive in terms of who gets talked about. And that's when one of the perennial critiques of a reproductive rights frame, and we were very consciously trying to avoid that. And so in our book, Reproductive Rights and Justice Stories,

you get really terrific essays about the Magical Ten, a group of non-native English speakers, non-English speaking women who were sterilized in Los Angeles at a public hospital without their consent. And so some really terrific stories that bring to the four people that we ordinarily don't hear from in these topics. Okay, so maybe we'll shift to some of the cases that are pending before the docket now. So the first case that we thought we would talk about is a case called June Medical Services, which people may actually have heard of because back in February, the Supreme Court got involved in the case at a pretty early stage. So the case involves a Louisiana admitting privileges law. So basically a law that requires abortion providers to have admitting privileges at a nearby hospital. Wait, that law sounds familiar, Kate.

So A, it's familiar, but B, actually, to the uninitiated, it sounds pretty unobjectionable, right? Like you're practicing medicine. A relationship with the hospital doesn't seem like something that is so problematic. In practice, it turns out these requirements are almost impossible to satisfy. And so they lead inevitably to clinic closures. Why are they so hard to satisfy? So there isn't always a hospital, A, within 30 miles, right? That's 30 or 50 or even 100 are sort of the requirements that states put in place. So literally, the clinic just might not have any hospital nearby. So that's one.

Two, hospitals often require, in order to maintain an admitting privileges requirement, a doctor to have basically made a particular number of admissions in a particular year. And it turns out that most of the time, abortion is a very straightforward and low-risk procedure. So if you're performing abortions, you're just not going to do a lot of admissions in hospitals. And so the very safety of the procedure undermines your ability to establish, to satisfy the requirements that these hospitals put in place. And then there are hospitals that I think don't want to facilitate abortion provision. And so – Catholic hospitals?

Quite difficult. Yes, I think among others. But yes, certainly Catholic hospitals. So I think that it turns out, sounds unobjectionable in practice, hugely difficult for abortion providers to satisfy these requirements. So, and as Leah said, this law sounds familiar because a virtually identical Texas law was struck down by the Supreme Court in a 2016 case called Whole Woman's Health versus Hellerstedt. Record scratch. Then why did Louisiana enact it if it had already been struck down by the

Supreme Court? Does Louisiana not listen to the Supreme Court? Well, there's been a change in the Supreme Court. I think Louisiana may have noticed. I think a lot of states may have noticed, right? So weird, given that the new justices have professed the strongest commitment to stare decisis. For suckers. Strongest commitment to stare decisis. Justice Kennedy was in the 5-3 majority, right, that struck down, rather, the Texas law at issue. And obviously, Justice Kennedy is no longer on the court. And so, you know, I don't think it's any secret why Louisiana and, you know, this incredibly long list of states have moved in the last 12 months, right, to implement these very restrictive abortion regulations. So what happens in June medical services is clinics

bring a challenge. The district court takes a look and says, yeah, this requirement would drastically reduce abortion access throughout the state, wouldn't provide any benefit to women's health or safety, and so drags it down. The Fifth Circuit, probably the most conservative court of appeals in the country, reverses 2-1, says, actually, no, it's fine. The law can go into effect. It did this in spite of the 2016 Whole Woman's Health case. And so in that case, the 2016 case, the Supreme Court used just to sort of introduce people to some of the big cases. And we've alluded a couple of them already.

But in that 2016 case, the court uses the test set forth in the 1992 case, Planned Parenthood versus Casey, which is really the governing test for courts evaluation of abortion regulation. So in 1973, the court in Roe versus Wade first announces the constitutional protection for abortion. But it's really in 92 in Casey that a court kind of refines and changes the test. So it explains that states can regulate abortion, but they can't impose what the court says are undue burdens, at least in the context of pre-viability pregnancies. Okay, so back to the Louisiana case. So in February, the challengers say, the Fifth Circuit upheld a law that looks just like the law that you guys struck down in 2016. Could you correct that, please? And 5-4, the Supreme Court agreed with them, right? So it granted a stay to keep the Louisiana law

from going into effect. So the four conservative justices dissented. They would have let the law go into effect. Kavanaugh, in his first substantive statement on an abortion-related topic since joining the court, wrote this kind of tortured opinion explaining that regardless of what the lower court had found, maybe it would be possible for some of the four doctors, count them, one, two, three, four, who currently performed abortions in Louisiana to get admitting privileges.

So he basically said, let's let the law go into effect. Let them try. If it's really so hard, maybe they can come back to the courts. But Roberts was not persuaded by this, right? So he joined the more liberal justices to keep the law on hold pending the Supreme Court's resolution of the cert petition that the clinics then filed. So the justices may consider taking it up at the long conference, which is the first big conference that the justices participate in at the end of the summer after they've all returned from their European travels.

And they consider the cert petitions that have piled up in their absence. So it might be the long conference. It might be within the first couple of weeks after that. But just to underscore what you said, like the decision that the Supreme Court issued was not about the ultimate validity of the law. It was instead whether to allow Louisiana to enforce the law pending the Supreme Court's decision on whether to hear the case challenging the law's constitutionality and the court's ultimate disposition in such a case.

And the challengers in this case are asking for the Supreme Court to summarily reverse the Fifth Circuit. That is, they're asking the court not to grant full review and hear argument. They say, you don't need to do that, right? You already issued a decision finding that an admitting privileges requirement adds no health benefit to women and would burden abortion access. So no need to hear full argument here. privileges requirement adds no health benefit to women and would burden abortion access. So no need to hear full argument here. There is, however, convention at the court in which summary

reversals of that kind are supposed to garner six votes. There's a courtesy rule that the court won't summarily reverse unless it has six votes. I think it's the case that in at least one Post-Citizens United case, American Tradition Partnership, I think it was called, there was a 5-4 sum rev. Sum rev is sort of Supreme Court shorthand for summary reversal. So I think they, in theory, could. But I think you're right that by custom—

Not on this. Well? Not on a case like this, I think. I mean, in theory, they could is all I'm saying. But yes, I think you're right that they won't. So much more likely then is that they grant cert and they take it up. And so this question that we'll probably spend some more time talking about, about whether they kind of forthrightly let us know that they're considering reversing course in their abortion jurisprudence

and maybe reconsidering at least whole woman's health, if not also Casey and Roe, could happen in the very near term, right? Or they could, you know, try to do what the lower court a little bit and even the Kavanaugh opinion here tried to do, which is just a strain to distinguish these basically identical laws and say, we're not revisiting Whole Woman's Health. This is different. It's Louisiana, not Texas. And today is Tuesday, not Monday. Another case that the court was thinking about last term was Harris versus West Alabama Women's Center.

This was a particularly important case, not necessarily because the court did anything that was particularly exciting, but that there is a concurrence from Justice Thomas that suggests that he would go further. Justice Thomas, I think, would always go further. And here he definitely signals that he would like to. So this case involves an Alabama law that completely prohibits a particular form of abortion called dilation and evacuation. This is a form of abortion that is not used for the majority of abortions. I think 93% of abortions actually use a different form of abortion. And this is used in the second trimester for a minority of abortions. But it has garnered a lot of tension or attention from the pro-life sector. So this law, again, sort of responds to that kind of anti-abortion fervor, and it completely prohibits the use of this form of abortion and not only just prohibits it, actually criminalizes it. So any doctor who performs this faces a

criminal sentence of 10 years imprisonment. So this is a serious, serious penalty for those doctors who believe that this is the appropriate method of abortion to use on a particular patient. The law was challenged, and in the district court, they struck down the law as an undue burden because it explicitly bans one entire form of abortion. That typically is something that courts don't view as being within the state's authority. There needs to be at least some sort of consideration of the situations in which this kind of procedure might be necessary. The 11th Circuit also affirmed the district court's decision striking the down, but it really did so grudgingly. So this was an 11th Circuit opinion drafted by Judge Ed Carnes. Also on the opinion were Judge Dubina and sitting by designation from the Middle District of Georgia, Judge Leslie J. Abrams. So they affirm this decision from the

district court reversing this as an undue burden. But Judge Dabina writes separately to emphasize that he is only doing so grudgingly. And in fact, he cites specifically justice. I don't want to have to follow precedent, but I guess I will. Make me. Well, it's actually even better than that. So in his concurrence, he writes like only the Supreme Court can reverse court has to, because the Supreme Court says so. But he specifically cites Justice Thomas's concurrence in Gonzalez v. Carhart, which is a 2007 abortion case that Justice Kennedy wrote where they uphold the federal Partial Birth Abortion Ban Act. And in that case, Justice Thomas, with Justice Scalia signing on, says that he thinks

the entire Supreme Court body of jurisprudence surrounding abortion is literally made up out of whole cloth. It is totally specious, and the court should reverse course right now, accordingly. Judge Dabina cites this and is like, this is where I am. I'm on board for this. So we know where Judge Dabina is. Judge Abrams writes what must be one of the most succinct opinions I think I've ever seen. She's a law school classmate. In fact, she was my moot court partner in law school. She also happens to be the younger sister of Stacey Abrams. You may have heard of her. But she's someone, I think, who doesn't suffer fools. But she writes that, I am only concurring in the judgment. I am not signing on for any of the reasoning here from anyone.

I'm just here for the outcome. And so— Here for the judgment. I am not signing on for any of the reasoning here from anyone. I'm just here for the outcome. And so I'm here for the judgment only. Please leave me out of this. It's like, I'm just a district court judge. She's visiting. She's like, I'm here. I'm going back to my district court. But she does. She writes one line, which is that this law falls, right? So that's the bottom line here. That's the bottom line. I'm not subscribing to any of the reasoning that either Carnes or Dabina signed on for here. And just strike it down. And I'm going to go back to Albany and say no more about it. So, again, a really important case because we see the reference back to the Thomas, you know, all of this abortion jurisprudence is crap. And I raise that because this is a theme with Justice Thomas that was sort of like a kind of off the wall argument. But it's becoming more and more on the wall. Certainly this term where it seems very clear that Justice Thomas has been doubling down on his critique of the court's past abortion jurisprudence. And, you know, we're going to see even more from that. And Justice Thomas, in denying this, so Alabama seeks a writ of certiorari whereby the court would hear this case. And the court on the very last day of term denies that petition for certiorari. Justice Thomas concurs in that denial, but writes separately to say, here abortion providers

persuaded the district court, despite mixed medical evidence, that other abortion methods were too risky and the lower courts therefore held that Obama's law had the effect of burdening abortions, even though it did not prevent them. Ordinarily, balancing moral concerns against the risks and cost of alternatives is a quintessentially legislative function. But as the Court of Appeals suggested, the undue burden standard is an aberration of constitutional law. This case serves as a stark reminder that our abortion jurisprudence has spiraled out of control. Although this case does not present the opportunity to address our demonstrably erroneous undue burden standard, we cannot continue blinking the reality of what this court has wrought. So the gauntlet is thrown down.

We are only two cases into our preview of what has been the docket of the last year on reproductive rights, and I already feel the need to order a pizza full of pineapple and rage. So let's continue marching on. So we see where we're going. Right. Into the abyss. Into the abyss. Let's take the next step. So another case that the court had on its docket for this last term and ultimately decided not to hear was Gee versus Planned Parenthood. The specific question in this case was whether Medicaid patients and Medicaid providers had a private right of action to enforce the choice of provider provision in Medicaid program. So Medicaid is a health insurance program whereby the federal government offers the state's money to provide health insurance to certain populations if the state meets certain conditions. And one of those conditions is that the state offer individuals who are eligible for Medicaid

the ability to obtain medical assistance from anyone qualified to perform medical services and who undertakes to perform medical services. And some states have attempted to throw out Planned Parenthood from the Medicaid program. And this case was one of those. And so the specific question in the case was whether Medicaid patients and providers could sue in federal court and obtain an injunction whereby a federal court would say the state is violating this statutory term, which requires the state to offer individuals in the Medicaid program the ability to obtain medical assistance from people who are qualified to provide it. Different courts of appeals have come to different conclusions on this question. So that meets one of the typical criteria for the Supreme Court to grant certiorari. However, the court denied the petition in this case that led to a separate writing by

Justices Thomas, Gorsuch, Alito saying we should have granted cert. There's a disagreement among the courts of appeals. The Supreme Court is basically gun shy and trying to keep abortion out of its docket. But that's not a valid reason not to hear the case. So Justice Thomas had more to say. He would go further. And he got the opportunity to go further in his concurrence in Box v. Planned Parenthood. So this is an appeal coming out of Indiana. We talked about it in one of our past shows, so I won't belabor the facts of it. But suffice to say, it involves two provisions of an Indiana abortion,

of Indiana abortion restrictions that were signed into law by then Governor Mike Pence, who, as we all know, is now the vice president. One of the provisions is basically a nondiscrimination clause saying that you cannot get an abortion in Indiana if the purpose of the abortion is to either sex select. So pick the sex or gender of the fetus, race select, get rid of a fetus that is not compatible with your particular racial outlook, or if it's meant to terminate because of a pending disability. There's also another provision, the fetal disposal provision, which says that any fetal remains that are produced through the termination of a pregnancy have to be disposed of using the same kinds of methods that you would use for human remains, so cremation and then subsequently burial or one or the other. Indiana loses at the appellate level.

And again, there's this really grudging opinion from Judge Mannion, a la Judge Dabina, who says that I am only striking down these laws because I'm a good judge who follows precedent. But fix it, SCOTUS. Fix it, SCOTUS. You are the ones that have the power to actually give us the tools to strike, uphold these laws and keep abortion out of Indiana. And so it then goes on to the Supreme Court, these two petitions for certiorari. The Supreme Court grants cert on the issue of the fetal disposal provision and overturns the lower court's injunction on the fetal disposal provision. And then it goes on to find that the state has a legitimate interest in the proper disposal of fetal remains. So it upholds that law.

It denies cert with regard to the non-discrimination provision upholding the lower court's injunction. And that particular decision prompts a stinging concurrence from Justice Thomas, who links the whole question of abortion with eugenics. And he talks about this question of eugenic abortion, the idea of having abortion to basically weed out undesirable traits. And he talks about that's exactly what this particular law that's been challenged prevents. It prevents women from basically being eugenicists who want to get rid of a fetus that they find incompatible with their views about gender or race or disability.

And he links this history of eugenics in the United States. There's a very long history of American use of eugenics to abortion. And as Dahlia Lithwick put out in her Amicus podcast, he's really opening the Overton window, sort of offering an alternative line of discourse for finding abortion to be untenable or problematic. So obviously, the whole idea that restricting abortion or regulating abortion is good for women's health has, for some, seemed specious for a long time, but it's been harder and harder to prove that there are health benefits to these restrictions. He's trying to offer a different way to justify restrictions on abortion and indeed the criminalization or outright elimination of abortion. And so the hope, I think, is that this idea of abortion as eugenics will become over time

normalized and a greater part of the discourse. And that really shifts the tone of how we talk about abortion and women seeking abortion so they are no longer unwitting victims of a quote unquote abortion industry, but rather willing participants in eugenicide. I was just going to say, and that really aligns with some of the rationales that states have given in these recently enacted abortion restrictions. So, for example, in Alabama's very draconian restriction on abortion that basically outlawed all forms of abortion, the preamble to the law cited statistics from the Holocaust, for

example, and said we are basically in Alabama attempting to prevent another Holocaust slash genocide, again, kind of linking women who have abortions to eugenicists and participate in genocide. Yeah, no, that's a wild statutory preamble. I mean, I guess I can't tell Melissa. So you think that what he is doing is sort of saying that women who obtain abortions are eugenicists, as opposed to suggesting they're victims of a eugenics-minded abortion industry. I mean, the Alabama law, though it begins with that preamble, does exempt, purports to exempt women from the criminal liability provisions, right? It's doctors. It's sort of these predatory clinics and doctors. You know, I think that the rationales are evolving. So there may not be a

clear answer to this. But I just don't know sort of how these seeds will flower, because I do think it's clear that the rationales are changing, that promoting women's health and safety, I don't think it's going to be abandoned, but it is being supplemented by another set of rationales, some of which are new, some of which are being revived after having sort of laid dormant for some time. So I guess I can't quite tell the direction that this litigation is going to go in. Well, it's definitely different from love them both, which has for a long time been the standard pro-life line, you know, both being the fetus and the woman, like the woman's misguided and we need to love her through her poor choices. But I think you're right. This may just be a case of like, let's throw everything

at the wall and see what sticks. Something has to stick. And I think for Justice Thomas, any one of these things, whether it's doctors or women as eugenicists, all of this would be fine if it ultimately led to the elimination of abortion and the overruling of Roe. Yeah. And while Alabama exempts women from criminal liability, the Georgia law that criminalizes abortion does not. And I also think the law you just talked about, Melissa, in Box, you know, has some parallels to this theme, particularly the fetal burial and fetal cremation restriction. If you think of laws of that kind as really kind of coming up against

the line and starting to shame women who have abortions as a method of dissuading women from having abortions, that is the state's promotes its interest in protecting fetal life and, you know, choosing life by dissuading women from abortions by shaming them. Well, like these things start to look very much like the rationale that Justice Thomas is articulating in his concurrence, I think. Well, I think that's totally true. I think the other thing that these laws are doing, in addition to sort of providing another method for dissuading or deterring women through shame, they're also sort of, again, emboldening

or embodying the fetus as a person. I mean, in Alabama, the fetus may have non-discrimination protections that other people in Alabama may lack. And the idea that fetal remains have to be disposed of via funereal proceedings, I mean, again, like human remains. I mean, it is a kind of personhood argument that is being offered at the same time as it's shaming women into different choices. OK, so now we're at something like season three or four of The Handmaid's Tale. I'm going to fast forward us to season seven of The Handmaid's Tale, a.k.a. Garza versus Hargan. So this case involved the Office of Refugee Resettlement's treatment of undocumented women who entered the United States and are in the legal custody of the Office of Refugee Resettlement.

This case involves whether and how ORR must allow the women to leave the physical custody of the shelters in which they are housed in order to obtain abortions. Now, the women in these cases went to state court and obtained what are called the state bypass procedures. If you are a minor, you generally need to obtain parental consent in states like Texas before obtaining an abortion. However, the Supreme Court's case law requires states to offer minors a judicial bypass procedure whereby they prove to the satisfaction of a court that they are capable of making the decision about whether to end their pregnancy on their own.

So these women convinced state courts that they are in that position. ORR, however, said a bunch of different things about why it didn't have to let the women leave its custody. One, it said we never have to let the women leave our custody because we can decide that it is in their best interest not to have abortions. Bracket that one for a second. Alternatively, they said, we don't have to let them leave our custody because we don't want to facilitate abortions by letting them leave the shelters and obtaining abortions on their own. They also said, with some prodding of the Court of Appeals judges, we don't have to allow the women to get abortions until they are in the custody of a private sponsor rather than the government because that would, quote, put them

in a better place to have an abortion. Alternatively, the government said, we never have to allow you to get an abortion because you can just leave the United States. So different rationales for what the government was saying it could do. The district court said, you know, too long, do not read. Are you fucking kidding me? No, you can't do this. The Court of Appeals, in an opinion by Judge Kavanaugh and another Court of Appeals judge,, maybe ORR can do this at least for a little while longer. You know, P.S. the women had already been pushed to their second trimester.

And the full D.C. Circuit said, no, no, no, no, no, ORR can't do this. So in addition to the concurrence by Judge Kavanaugh, the Solicitor General filed a, quote, petition for certiorari. I am calling it a, quote, petition for certiorari because they didn't actually ask the Supreme Court to hear the case given that the only technical determination by the Court of Appeals was whether to stay the lower court ruling on the injunction. And by that point, the women specifically at issue in the case had had abortions. Instead, the Supreme Court asked, I'm sorry, the Solicitor General asked the Supreme Court to vacate the lower court stay and then asked the Supreme Court for a show cause order on whether to refer the ACLU attorneys representing the Young Women's Guardians as to whether they should be sanctioned by their local bar organizations. That was Garza versus Hargan.

The Supreme Court issues kind of a non-ruling in the case saying there are some serious allegations. We're not going to say anything about them. Instead, we're just going to vacate the Court of Appeals opinion in this case. That's the precursor to Garza versus Hargan, where the case is now is a D.C. Circuit panel has essentially agreed with the initial stay ruling of the full D.C. Circuit and saying ORR's panel, I'm sorry, ORR's policy is unlawful. Right. And we should say that this is a new group of detained immigrant minors, right? Who are, so it's, there's a new class that's been certified because it turns out this comes up, right? The federal government is detaining a lot of people. And so even though

the original Jane Doe, I think there were two originally, right? Both did finally successfully obtain their abortions, though much later than they would have had the D.C. Circuit not stood in the way of the original district court ruling. But so there's this new class that's been certified. And so now there's a question about whether the Solicitor General is going to run off to the Supreme Court and ask the Supreme Court to review this particular Court of Appeals ruling. But I think that Justice Kavanaugh would be recused since even though it is technically, you know, new immigrant women, it's the same case. I think he would have to recuse himself, right? I think the optics would be terrible for And he participated in it.

I think the optics would be terrible were he to weigh in here. They make their own calls. You know, they keep their own counsel. I think he would recuse. Speaking of optics being terrible on recusal issues and abortion cases, you just teed that one up. I mentioned that the Solicitor General sought sanctions. I just throw them to you and you just bat them in. Sought sanctions against the ACLU attorney who was representing the Young Women's Guardians. One of the attorneys who was on that brief with the Solicitor General is now Judge Chad

Riedler, who's on the U.S. Court of Appeals for the Sixth Circuit. And he recently heard a case involving a restriction on abortion, specifically Kentucky's licensing scheme for abortion clinics. And interestingly, one of the lawyers for the clinics in that case is, da-da-da-da, Bridget Amiri, the lawyer he sought to have sanctioned in Garza versus Hargan. Now, Melissa and Kate, you mentioned optics and recusals. Do you think that there might be some optical questions about a judge's partiality to rule on, let's say, a case on the same subject matter on which they sought to have one of the lawyers sanctioned. I mean, we may have different opinions about this. I actually don't think the

fact that they were adversaries in the previous litigation would necessarily be disqualifying, but it was the extraordinary step of seeking the sanctions against her, which I think lawyers of all stripes and all political persuasions were kind of shocked by, right? It was, you know, it felt like the, at the very worst, what she was being accused of was zealous advocacy for her client. And to seek a Supreme Court,

you know, and to single her out that way was just shocking. So, yeah, I think in this case, there could be a real optics problem though, entirely one of his own making. Yes.

Same. So I also want to note another one of the lawyers in this case is Isha Anand, who is arguing for Planned Parenthood and is a host or co-host of the Versus Trump pod. And I heard her on that podcast and I thought she was so smart and cool. I emailed her and I was like, you're really smart and you're really cool. And I think we should be friends. She's terrific. So full disclosure, she's my former student from Berkeley. She's terrific.

She clerked for Paul Watford in the Ninth Circuit and then went on to clerk for Justice Sotomayor on the court. She argued for Planned Parenthood when she was 33 weeks pregnant, which is such badassery. I would almost like to think, like, I inspired this badassery because I think she saw me being vulgarly pregnant teaching family law. Like, when you're that pregnant teaching family law, it becomes a kind of clinical situation. Like, you're really teaching a clinic at that point. But I think it's really that she is just a total all around badass. She's a lawyer at Oreck here in San Francisco, and she's just a total rock star. And it was really amazing to see her just tearing it up. So I'm going to take a

page from my girl Taylor Swift and her song, You Need to Calm Down, and tried to bring us around to the point that in these abortion cases, a lot of them turn on nominally procedural questions the court resolved, like whether the plaintiffs in the Medicaid case have a private right of action or whether to stay the district court's injunction in Garza versus Hargan. And while these issues can sound super legal and technical, it is important to understand the stakes of these issues. So for example, the Medicaid private right of action question, you know, if a state, for example, kicks out a provider who is able to provide health services to someone, the question is, well, what can you do about that? And the plaintiffs in the Medicaid cases were seeking an injunction. The other remedy that the

court holds out is, well, the other solution is for the federal government, the entity administering Medicaid and providing Medicaid funds, to cut off the funds to states that are violating these Medicaid terms. And you might think, well, that's not really a remedy at all. Why? Because if the federal government removes the funds, well, that's going to hurt the title or the Medicaid program. And also you're dealing with this particular federal government who might not want Planned Parenthood to be a part of the Medicaid program. So if you don't have a private right of action, well, then these Medicaid provisions might just go completely unenforced. So I think that's all totally right. And actually, so you were talking just now about Medicaid funds. Another source of important federal funds

to providers of reproductive health services is Title 10 of the Public Health Service Act, right? So Leah, I think you want to set us off on Title 10 of the Public Health Service Act, right? So, Leah, I think you want to set us off on Title 10? Sure. So Title 10 is a pre-pregnancy family planning services program. And the Trump administration recently promulgated a rule in which it said, essentially, you can't participate in the Title 10 program if you offer any referrals to abortion providers that is women who are seen by Title 10 providers can't receive information about where they might obtain abortion and funding options for it so this rule has been challenged on several grounds including that it

violates statutes that require a Title 10 medical care to be non-directive. And this litigation is currently ongoing. And as part of that litigation, The New York Times just reported that Planned Parenthood, which is a significant Title X provider, I think is going to withdraw from the Title X program while it is simultaneously challenging the validity of this regulation. And we should say, right, Title X is a hugely important source of reproductive health care and just health care for low-income women, right? So this law has been around since 1970. Enacted by Richard Nixon.

Yeah. So this is a Nixon-era law that, you know, the idea was just to give low-income women access to the same sorts of reproductive health care that women with money have long been able to access. And so some of the services that Title X providers have long offered to low-income women are contraception, STI testing and treatment, cancer screenings, right? So this is not just about abortion, but it seems like Planned Parenthood has taken a look at the constraints that it would face under this new legal regime that we should say is a restoration of a 1988 or a partial restoration of a 1988 approach to the implementation of this Title 10 statute that the Supreme Court upheld, although never totally went into effect. In any event, it both, you know, is referred to as a gag rule, because it really does prevent Title 10 providers from even referring interested women in to abortion providers. But it also imposes this physical separation requirement, right? You have to maintain separate facilities if you're a Title 10 provider like Planned Parenthood, but you're also

an abortion provider like Planned Parenthood. So you got to make separate, you know, create separate spaces, which I think is just not feasible in a lot of places. Well, it's not only that it's not feasible or practical, it's resource consumptive to be able to do so. that are ostensibly to promote women's health, but actually also have the ancillary effect of making it more expensive for providers to actually provide abortion care. And they either have to eat the costs themselves or pass it along to their patients. Same kind of thing at work here to maintain that kind of physical separation often requires two different facilities. And you're basically operating two different outfits. that's expensive and it's supposed to be expensive i think yeah yeah i mean and you know there's data from the from the

gutmacher institute that you know really studies this stuff um just about how successful title 10 has been so they i think 2015 is the last year for which they have data but they say title 10 prevented something like 800 000 plus unintended pregnancies because women who couldn't afford it otherwise had access to contraception, right? So it's just so all these women are going to go without or a lot of these women are going to go without access to contraception. And what is that going to do? It's going to increase the number of unintended pregnancies. And some of those will result in abortion. So as a general anti-abortion policy initiative, this is wildly counterproductive,

which is I think why a lot of people say this is sort of about abortion, but it's also about contraception. Like, fundamentally, there's resistance to or opposition to contraception that underlies some of these policy moves. In a lot of these places, especially in rural places, Planned Parenthood may be the only Title X health care provider available. So removing Planned Parenthood from the universe of providers really does close out a lot of women. Planned Parenthood is about 40% of the several thousand clinics that receive money under Title IX, but it's also not just about Planned Parenthood. I think it's the

largest Title X provider in Maine, as well as some other Title X providers are also being forced to withdraw from the program as a result of this rule. So, you know, as I was mentioning in the introduction, this rule is being challenged. A few district courts have found the rule unlawful. A panel of the Ninth Circuit said, that's not quite right. And so this rule is going to go into effect while the litigation proceeds. Okay. So there are a number of other cases that the court might take up in the not too distant future. There are a couple that raise the latest set of questions about the contraception mandate under the Affordable Care Act. This is something that the court has addressed previously, has been subject to a bunch of different regulations.

The whole ACA is in question. So who knows what the future of this might be. But there is a question about how expansive the ACA's mandate that employees get access to contraceptive coverage is going to be going forward because a district court has just permitted an additional expansion of religious objections to the provision of contraceptive coverage. Okay, so what else is coming down the pike? Well, so then there are some other cases that you can think of as implicating reproductive rights and justice, as we kind of define that term more capaciously, you know, that appeared on the court's docket from last term, and that also the court is going to be potentially hearing this upcoming term. So we've already talked about some of these cases. So for example,

all of the cases on stare decisis, you can think of as implicating reproductive rights and justice, since they are providing important clues about whether and under what circumstances the court is going to feel compelled to follow prior cases that they don't agree with. tax board versus Hyatt case that involved overturning this longstanding precedent 5-4. Leah wrote a great op-ed about this in the New York Times. But that basically said the court is overturning this case only because five members of a later court have come to agree with earlier dissenters and then says today's decision can only cause one to wonder which cases the court will overrule next. You know, he doesn't mention Roe or Casey, but he doesn't have to. And, you know, we have Thomas's opinion in Gamble in which he seems to refashion stare decisis, says that stare decisis shouldn't shield demonstrably erroneous decisions from being revisited. years of legal rulings to smithereens, references Breyer's dissent in Hyatt, and then says, you know, you asked how long, you said that today's decision can only cause one to wonder which case the court will overrule next. That didn't take long. Now one may wonder yet again. So you have justices who've really raised the alarm about the court's treatment of precedent,

you know, last term. You know, we'll see what develops this coming term. Well, if the stare decisis cases obviously implicate reproductive rights and justice, because it seems that the stare decisis discussion is trained specifically on Roe and Casey, there were other cases that seem to be a little more under the radar in terms of their implication. So I want to point out there were a number of cases, not just last term, but also in previous terms about arbitration and the scope of arbitration agreements. So last term, there was LAMPS plus versus Varela. And this was not at all about reproductive rights and justice on its face.

This was about an employee who tried to sue his employer because the employer let some personal information go in a data leak. But in that case, the specific issue on appeal was whether generally applicable state contract principles could be used to interpret an ambiguous agreement and decide whether it would permit arbitration to proceed on a class basis. SCOTUS reversed and remanded the lower court decision there and held that under the Federal Arbitration Act, an ambiguous agreement can't provide the necessary contractual basis or consent for concluding that the parties had agreed to submit to class arbitration. This is obviously grist for the arbitration mill and for those who care about contract principles, but why should I care? Why do I care about this or what does it have to do with reproductive rights and justice? Again, if you think about reproductive rights and justice as about being about a range of things, including workplace conditions, including access to equal pay or whatnot, the ability to be in the workplace without enduring unwanted advances or whatnot, you might see the confluence of both the arbitration concerns and the reproductive justice concerns here. Class arbitration is a big avenue for vindicating sexual harassment and sex

discrimination claims. And so the limitations on class arbitration that we see in a case like LAMPS Plus will certainly have a big impact on the vindication of those claims in other settings. So again, not obviously about reproductive rights and justice, but will certainly have a big impact there. Another case that wasn't obviously about reproductive rights and justice, but has reproductive rights and justice implications is Carpenter v. Murphy, which the court heard last term and will be hearing for re-argument this upcoming term. The specific question in that case was whether the Creek Nation within Oklahoma had been disestablished by the statutes admitting Oklahoma into the union and subsequent status regulating the authority of the Creek Nation tribe. And in the context of that case, the stakes were whether the state of

Oklahoma could prosecute a member of the Creek Nation for a crime that occurred on what would have been Creek Nation lands. However, whether the Creek Nation is still a tribe has reproductive rights and justice implications, because if the Creek Nation is not a federally recognized Indian tribe, then they will lack the authority under the Violence Against Women Act or the reauthorized Violence Against Women Act, if that ever happens, to prosecute non-Native members who commit acts of sexual violence against Native American women. The rates of sexual assault and sexual violence against indigenous women are stunningly high. In order to remedy that, Congress closed a loophole in the court's Native American affairs jurisprudence by giving tribes the authority to prosecute certain sexual offenses

committed by people who aren't members of the tribe because states and federal law enforcement would oftentimes decline to prosecute those cases. And so if the Creek Nation isn't a federally recognized tribe, they will lack that authority. And then for this upcoming term, one of the cases that I think pretty clearly implicates reproductive rights and justice, even though it's maybe not understood in this terms, is Zarda and the companion cases. These cases nominally present the question about whether Title VII prohibits employers from discriminating against persons because of their sexual orientation or gender identity.

However, Zarda and these other cases have reproductive rights and justice implications because if you understand reproductive rights and justice to encompass workplace conditions and workplace protections, well, removing workplace protections will limit the autonomy and liberty and force and identity on people in ways that can be a reproductive rights and justice issue. If employers can discriminate against women who have families or women who don't, that is obviously a matter of reproductive rights and justice. And the legal theory that the administration and the employers are offering up

in Zarda also has reproductive rights and justice implications because the Trump administration and the employers are arguing that it does not violate Title VII to do what are called sex stereotypes, that is for employers to impose and enforce stereotypes about how the different sexes should behave so long as employers impose stereotypes on both sexes. That is, the administration is arguing like it doesn't violate Title VII if the employer has sex stereotypes that it imposes on both women and men, which is, I think, a bit of an odd conception of Title VII to the extent that Title VII is meant to eliminate the importance of sex in the workplace. Like saying, oh, no, it actually allows employers to enforce whatever sex stereotypes they please

is an interesting theory that I'm sure we will cover later. Yeah, no, I think Zarda, I just think, is a hugely important case. And we'll probably spend a bunch of time talking about it in our term preview show, which will be our next show. And there's another case that I think we'll also spend a lot of time on in our next show and that Leah can't talk about because she's actually one of the lawyers on the case. And that's a case called Hernandez versus Mesa, which is a case involving a U.S. Border Patrol agent who fatally shot a 15-year-old Mexican boy, Sergio Hernandez, across the U.S. border.

So Mesa, the Border Patrol agent, was on U.S. soil, and Hernandez was across the border on Mexican soil. And Hernandez's family has sued for damages, arguing that this use of deadly force violated the Fourth Amendment. The question here, and it's a really profoundly important one, is whether there's a remedy under Bivens, a case that allows individuals to seek monetary compensation from federal officials who have violated their constitutional rights, is available in a case like this. There's a couple of different lines of conflicting authority. I think it's fair to say that the court has limited the availability of Bivens remedies in sort of a series of cases. But it's a really, really important remedy for individuals who have had serious constitutional violations committed upon them and who don't have other remedies. It's also really interesting, Kate, because the parties didn't actually raise that question. The court raised it as an additional

question when it agreed to hear the case. So again, in the realm of stare decisis is for suckers, the incorporation of this additional question in this briefing suggests that maybe the court is rethinking its Bivens jurisprudence, which would have profound consequences in a lot of other areas, too. Absolutely. And in terms of its applicability or its relevance to the conversation here, right, there's an amicus brief filed by the Trier Justice Center arguing that Bivens actions are super important in lots of different situations, but including when revealed widespread sexual abuse and sexual assault committed by Border Patrol or Border Protection officers. And Bivens remedies are just really important to potentially address that kind of misconduct. So it's super relevant to what we're talking about today. And again, Leah won't be talking about it, but Melissa and Jamie and I probably will be in our future discussions of the term. Stay tuned. Okay. So strange bedfellows, a recurring theme. So this is our strange bedfellows segment where we talk about all of the ways the ideological predilections really didn't turn out the way we thought it would. And there are a couple of cases, even on the pitched topic of reproductive rights and justice,

where we saw some really unusual alignments. So Box v. Planned Parenthood is one of those places. Again, that was the Indiana case where we had the non-discrimination abortion provision as well as the fetal remains disposal provision. There we saw Justices Breyer and Kagan, two stalwarts of the court's liberal wing, joining with the court's conservatives to reach a compromise by which the court would uphold the fetal remains provision while turning away the non-discrimination rule. They didn't grant cert there. And arguably, that was the more controversial provision. And I

think the tradeoff here is that the conservatives got something. They got to uphold the fetal disposal provision as a legitimate state exercise of authority. And they got to avoid a more forthright confrontation and tangle with Roe. So again, these strange bedfellow moments may be quite tactical. And I think in this case, it was a quite tactical decision to join with the conservatives to avoid that larger question. Do you have a strange bedfellows moment, Kate? Well, so we talked a bit about June medical services at the beginning of the show. And yeah, I mean, so the chief joining the more liberal justices to keep that Louisiana admitting privileges requirement from going into effect surprised a lot of people. Now, I think that one possible explanation was just about sending a message to the lower courts about whose job it is to overrule the court's cases.

Whole Woman's Health struck down this Texas law. This is the same law, whether it was Tuesday or Wednesday, whether it's Texas or Louisiana. And so just kind of this assertion of institutional authority and hierarchy. So that I think may well have explained the chief's vote. But I think that, you know, people thought that he was, you know, the others all went the other way. And, you know, you could try to concoct an explanation that distinguishes the two. I think the really important question will be what he does on the merits if, in fact, the court decides to take up the student medical services case. I think that's what ultimately unites both of these strange bedfellows is that in Box, Justices Kagan and Breyer joined an opinion that only upheld the fetal disposal provision under

the so-called rational basis review and not under the legal standard that governs abortion restrictions, the undue burden standard. So in the event that an abortion provider actually made the argument that that provision violated the undue burden standard, technically the Supreme Court didn't resolve that question. Similarly, in June Medical, the Supreme Court, the chief justice rather, didn't ultimately vote to say this law is unconstitutional. He just voted to stay the ruling. So in both cases, the justices who kind of crossed over preserved the option for a final decision that aligned with their ideological priors. Okay. So we wanted to talk about a couple of other either state or federal regulations that could make their way to the court in the near term. Some of them we've already talked about,

this Title X challenge, the contraception mandate challenge, the Garza follow on case. And then we have some of these newly enacted, really restrictive laws. Right. So we're not talking about imposing burdens and obstacles, but total or near total prohibitions on abortions being performed in particular states. So Alabama, which has essentially a total prohibition signed into law in May, 99-year criminal penalties attached, no rape or incest exception. The ACLU and Planned Parenthood have already challenged this law. It is effectively on hold. Georgia also earlier this summer passed a six-week ban. It would go into effect in January.

It is also being challenged by Planned Parenthood and the ACLU. These laws aren't even scheduled to go into effect until January. It is also being challenged by Planned Parenthood and the ACLU. You know, these laws aren't even scheduled to go into effect until November and January, respectively. They will either be tied up in litigation or struck down before then, I think we can confidently assert. But, you know, depending on how quickly the district court and court of appeals litigation proceeds, one of these cases could be at least pending before the court. And I think that, you know, this term, next term, and I think there's this big question about whether the court will take up one of these cases. And I mean, you know, that's so we're a podcast about law, right, not politics. But I think we all agree that you obviously can't talk about these things as though they are entirely separate, although I think our degrees of sort of legal realism may range a bit. But one point that I want to make actually is a little bit more of a political point. But that is that we are all, we've been talking around, and maybe we should talk more directly about the future of Roe and legal abortion with this Supreme Court. But it's also, it seems important to talk in all these conversations about what happens if Donald

Trump is reelected in 2020. You know, if that's the case, and the chances that Roe will be overturned, I think go from decent to very, very, very good, right? In 2016, he campaigned promising to appoint justices who would overturn Roe. I presume he'll do the same. I presume he'll do the same. Well, we don't know for sure yet. I mean, I don't know. I don't. But yes, obviously, that's the way the writing on the wall sort of looks to read. But if he is inaugurated to a second term in 2021, Justice Ginsburg will be almost 88, right? Justice Breyer will be 82. It is possible they both remain on the court for a full second term of a Trump administration. It is entirely possible, but it is far from guaranteed. So it's just, I imagine it'll be a major theme in the general election,

but it has been nowhere near essential to the conversation that as it feels like it should be to me. It's been completely out of the conversation and the Democratic debates. Like they don't talk about

the court or even courts at all, which is shocking. And one thing I think you both, Leah and Melissa, have been really focused on on Twitter and sort of in public conversation is about,

it's not just about the presidential election, right? Even if Donald Trump is reelected, he's going to have a hard time putting anti-Roe judges, justices on the bench if he doesn't have the Senate, right? And so I think you two have both been sort of sounding that alarm about the lack of focus on the Senate. So, you know, we've got the platform. I saw Chuck Schumer at the Prospect Park Soireee and I was like, why are you dancing? Don't you have work to do? You look too happy. What did he say? Go work. Every time we talk about the 2020 election with respect to the Senate, I worry that an angel loses its wings. It's just so depressing. But Kate, you mentioned, you know, this campaigning on the notion of overturning Roe and these

full-on bans. You know, I think that another category of law that could very well make its way to the Supreme Court and that I think is an equally important area to focus on are the other kinds of effective abortion bans that are outright criminal prohibition, non-discrimination provisions, the admitting privileges requirement, bans that occur at 16 weeks of pregnancy, 20 weeks, 15 weeks, various licensing schemes like Kentucky's that require abortion providers to have licensing agreements with particular hospitals. And those laws can have the practical effect of eliminating abortion in particular states.

However, they would not require the Supreme Court to issue an opinion that says, yes, states can criminalize abortion. Roe and Casey are overturned. I mean, you can get rid of abortion effectively without ever touching Roe versus Wade. And I mean, I think everyone's sort of stealing themselves for Roe getting overturned. For a lot of women in a lot of different parts of the country, Roe is effectively a non-entity. Right. So there are six states, I think, with just one clinic. There are a ton of cases coming down the pike that could just make it more of a non-entity for more and more people.

So keep your eye on the ball. I mean, it's not about overruling Roe. You can get rid of Roe by hobbling it and basically legislating it out of existence without ever touching it. It could still be a hollow, hollowed out precedent and no abortion for anyone. These bans are so interesting, though, just as a tactical matter. So I think it's right. You can almost eliminate abortion access in much of the country without ever touching Roe. But if the court is confronted with a six-week ban or a total ban, it can't decide that case without reaffirming or

overturning Roe. So these states may force the court's hand despite, I think, probably its preference for this kind of death by a thousand cuts approach that you allude to. And in part because, you know, Roe is really popular, actually. You know, like polling on abortion is 70% of Americans are in favor. 77% in like the latest NPR. Now, it gets complicated when you ask about specific kinds of regulation and weeks and things like that. But 77% say don't overturn Roe. And I don't know how much that impacts or should impact the way the court approaches this question. But it certainly should affect the way the political process thinks about the question. It feels like it's not doing that.

It's also really interesting that these bans, these more restrictive bans, have actually prompted some dissent within the pro-life community. Like, there are those who are like, y'all are in crazy town with these bans. Like, we have had a very sort of regulated, moderate, slow march strategy, and it's working. And now here you come with, like, you know, the Handmaid's Tale, Gilead in Alabama. We don't want any part of that. Like, and I think they agree that you might be forcing the court's hand and this court might not be willing to go that way. Although I will say, I think one person on this court is totally willing to go that way. And his initials are C2.

Just on forcing the court's hand, you know, I do think that the only way that the court's hand would be forced is if you have a lower court and specifically a court of appeals upholding one of these laws, forcing the court to take it. You know, the Supreme Court is certainlyies certiorari in one of these cases and then grants certiorari in, let's say, June medical versus services involving the admitting privileges requirement, upholds that requirement without having to explicitly overturn Roe, but nonetheless effectively eliminates abortion access in many different states. And so that is the impression that I hope is not created in the event that the court denies certain one of these flat-out bans and then upholds a law like an admitting privileges requirement in a case like June

Medical Services. And that's totally possible. We're running out of time. So let me just tee up some other cases that are broadly applicable to this notion of reproductive rights and justice. And these are cases related to religious accommodations or exemptions, specifically the cases that are in the vein of Masterpiece Cake Shop, which was decided two terms ago. The court there avoided the larger question of whether religious liberty trumped a state-level commitment to anti-discrimination protections for LGBTQ people. The court had a very narrow decision there where they focused on whether or not the underlying tribunal had reviewed the underlying claims with sufficient neutrality to religion.

So they avoided the big question about liberty versus equality. But the same questions are being teed up again in a bunch of other cases. Another cake case dealing with a cake for a same-sex marriage in Klein versus Oregon, a case about the provision of flowers in a same-sex wedding. All of these are coming back to the court. How do they relate to reproductive rights and justice? Again, the question of religious accommodations in the context of same-sex marriage seems very specific, but the same question of allowing religious believers to absent themselves from the provision of services also has huge effects for the provision of contraceptive care as well as abortion care. So if you are a pharmacist, you might seek an exemption from providing the morning after pill. If you are a physician or a nurse, you might seek to avoid providing assistance or even a procedure for an abortion.

So when the court does address that question of the collision of liberty and equality, it will not just be resonant for same-sex marriage and LGBTQ rights. It would also be resonant for these other reproductive rights questions. And then one other just quick note on these cases. You know, we mentioned that the court can effectively eliminate access to abortion by tinkering with cases like Whole Woman's Health versus Hellerstedt instead of Planned Parenthood versus Casey, and the June medical services is one of the cases that would allow the court potentially to do so.

And the state's opposition brief is not yet in in June medical services at the time we're recording this episode. However, several amicus briefs are in. And in those briefs, different amici are asking the court to play around with procedural rules that would govern when and how plaintiffs can challenge abortion restrictions that would also significantly affect court's ability to invalidate abortion restrictions. rule that abortion providers can assert versus under the doctrine of standing the rights of women seeking abortions and whether abortion providers can be the plaintiffs in these lawsuits. Undoing that rule would have significant implications for these lawsuits and for the ability to challenge abortion regulations because if individual patients have to be the plaintiffs versus providers, that could narrow the scope of relief that courts are granting and also the ease of finding plaintiffs in these lawsuits. There's also a separate amicus brief by Senator Josh Hawley that asks the court to ratchet

up the standard for when a court can invalidate an entire abortion restriction, basically asking the court to require plaintiffs to show that the restriction creates an undue burden for more women than the court currently does under the Casey test. Right. And so he wants the court to apply something like this Salerno test, which basically says in a facial challenge, you should only be able to grant relief if there's no possibility of a constitutional application of a rule to anyone. So like this law needs to be unconstitutional in 100% of its applications. And that's not the standard the court has ever used in abortion cases. And it would be significant development if the court decided to essentially apply that Salerno standard. And just to clarify, a facial standard or facial challenge is when you invalidate the law across the board in all cases. The as-applied standard

would say, well, you, individual woman or individual provider, can't have this law applied to you, but maybe it could be applied in other cases. And so obviously the court's ability to facially invalidate abortion restrictions is significant when we are thinking about court's ability to ensure access to abortion and protect women's right to choose. So this is the part of the show where we're going to talk about some real-life reproductive rights and justice issues that have been in the news. And this is not just about reproductive rights and justice. This is about reproductive rights and justice with a side of SCOTUS tea.

So this is some juicy, juicy stuff. Just this week, two former U.S. Supreme Court clerks who are married and work for the Jones Day law firm filed a federal lawsuit arguing that the firm's parental leave policies discriminate on the basis of gender and that the husband was fired after he challenged the firm's practices. And so to be clear, Jones Day is a Cleveland-based law firm. They have some very famous people on their roster, including Don McGahn, who is a former Trump official. I'm sure you've heard of him. So they're a solid firm. They do a lot of important government work,

and they have a great reputation around the country for being, you know, high upper echelon firms. So the idea that this would happen and that they would be the subject of a lawsuit like this has got to be a pretty big issue for the firm itself. And this is not their only pending gender discrimination lawsuit. In April, a group of women at Jones Day filed a $200 million class action suit alleging that the firm and its, quote, unquote, fraternity culture systematically discriminated against female associates in matters of pay promotion and pregnancy. very much in the reproductive justice wheelhouse because they include questions of equal pay and parental leave for all parents, not just women. So under the firm's policy, biological mothers who are primary caregivers receive 10 weeks of paid family leave plus an additional eight weeks of disability leave, while biological fathers who seek to be primary caregivers receive only 10 weeks of parental leave. The firm also awards new adoptive parents of either gender a

full total of 18 weeks of paid leave, the first 10 weeks plus the eight weeks of disability if they seek to be primary caregivers on the assumption that adoption comes with significant administrative requirements that will require extra time. In their 44-page complaint, the two associates, Mark Savinok and Julia Sheketov, who are former now former Jones Day associates and former SCOTUS clerks, allege that the policy discriminates on the basis of gender, specifically reverse discrimination because they discriminate against men. And they argued that when Savignac complained about this, he was fired from Jones Day. I don't even know where to start with this. First of all, it's a massive PR disaster for Jones Day.

Right now, as this lawsuit has dropped, law students all across the country are interviewing for summer associate positions. And I think this is not the look you want when you're trying to recruit young women or men who might one day want to have families to your firm. The policy itself seems like straight out of the 1950s. And honestly, when you as a firm are issuing a public relations statement that says law and biology are on your side, you're kind of on the wrong side of history. I mean, like law and biology, I could not even fathom this. I couldn't fathom that they actually paid someone to write this statement. This is insane. You know, let's back this up because I feel like there are a few different aspects of this lawsuit that maybe are worth mentioning.

So much here. To put it lightly. I should caveat this with I know Mark and Julia personally and consider them friends. So take with that what you will. But, you know, first they have this claim that Jones Day's family leave policy itself is unlawful. But then they have this separate claim that, you know, even putting aside whether the policy itself is lawful or not, Jones Day can't retaliate against Mark for claiming that the policy is unlawful, given that there is. That seems right. Exactly. Given that there is at least a reasonable basis for concluding that it is unlawful given that there is that seems right exactly given that there is at least a reasonable

basis for concluding that it is unlawful so maybe we all think more than reasonable right like it's pretty unlawful right let's let's let's start with the policy on the one hand which i think i think they are right in saying like the policy is certainly questionable because it seems to trade on stereotypes about who in families does the primary caregiving work. Yes. And that these gender assumptions about family caregiving really do harm women. Right? They are a key driver of sexual stereotyping.

Yes. And men. Right? Particularly men who want to share equally in family caregiving. Or men who are with other men. And there's no woman you can just shut this off on. Or women married to or partnered with other women. So only one parent gets the additional, the 18 weeks of leave, right? Or women who use surrogates, whether they're married women or men. It just seems to discriminate in about a dozen distinct

ways. And yet the PR statement that they issued suggests to me they're really doubling down on this, right? Like they are not, this wasn't something that was like just sort of insufficiently considered and like a policy they've just kind of had for decades and haven't really thought about. They're committed to it. Like they believe in this vision of the world and sort of families. So let me just say, not to single out Jones Day, I think there are a lot of law firms who probably have similar policies. I wonder if those other law firms would have doubled down on it the way that Jones Day did. I imagine many of them might like, you know, rethink and be like, my bad. I, you know, we've got we're going to go back to the drawing board on this and kind of think about modern family life and egalitarian caregiving. But you're totally right. Jones Day was like, nope, not a mistake. We're definitely doing this. And so, you know, the statement that we've been referring to is on the day this complaint is filed, Jones Day releases this statement that, first of all, attacks Mark and Julia in ways

that we might get into when we discuss the retaliation aspects of this claim. But then they claim that Mark and Julia's legal claims against the policy, quote, ignore both law and biology. So this is when you need your PR person to also have a law degree or some legal training to say to you, let's take that out. I'm going to line edit this and take out the law and biology because that was just, I don't even know how that made it pass legal. Why would you say that? Just the optics of it are terrible. I could have done it for free, y'all. I wouldn't. Liz is not volunteering to defend any of these policies, just to be clear. Yeah. So, you know, and then you have this, I think, other interesting aspects of the lawsuit that involve the retaliation claim in particular.

Because as I kind of alluded to, putting aside questions about whether the policy is ultimately unlawful, one thing it is clear you cannot do under federal law is retaliate and specifically fire an employee who complains about a violation of civil rights law. But Leah, everyone knows complaining about civil rights violation is really discourteous and rude. And you shouldn't – it's not collegial. You shouldn't do it. This was basically Jones Day's defense is, you know, Jones Day terminated Mr. Savignac's employment because it concluded he showed poor judgment, a lack of courtesy, personal immaturity, and a disinterest, all of which are apparent in his intemperate email he sent complaining about discrimination. It's like, okay, he was super rude to complain about

discrimination on the basis of sex. That's not a defense. You know, I'm also unaware of the part of Title VII where you're not protected from retaliation if you're a little bit of a meanie i mean it's just not exactly like you just want to go stand in front of jones day with like a huge sheet that says surrender dorothy i mean this is just like this is not the way to do this yeah and so again like the timing on this complaint is just wild because Jones Day fires him three days after he complains and says, no, your policy is unlawful. Give me equal treatment. And at this point, he has been several times promoted. He is being paid a lot of money. And it's like, no, this is the moment that you realize you don't want him to work for your firm when he starts saying your policy discriminates on the basis of sex.

And didn't the complaint also say like, you know, at some kind of dinner party or something, she was dispatched to explain the firm's position, parental leave to other ladies. No, she was dispatched to correct the misstatement. What would a man do on parental leave anyway? What would a man do on parental leave anyway? What would he do? So this follows this big class action that we alluded to filed in April against Jones Day. And I have to wonder whether like the floodgates are – I mean I've never really worked at a big law firm. Like I did as a summer associate but never after that. So I don't know how common – I mean this sounds really extreme and egregious to me, but maybe there's a lot like this out there. And maybe, you know, it is the case, I think, that

you see these sorts of things being challenged as opposed to just accepted, and it can have an emboldening function. So I know Mark a little bit, but I don't know them well enough to know whether, you know, they decided they'd come forward, you know, as soon as this happened. Obviously, it's been a little while. And I wonder, this April suit gets filed. They filed this now. Just like whether other similar kinds of policies and treatment we're going to see challenged. You know, you look at this and also in their response to the initial class action, and clearly their strategy is to make it really unpleasant for the plaintiffs in these cases. So for example, the Jones Day initial statement, you know, mentions some like mixed reviews the plaintiffs received,

or in the class action, you know, refers to the women challenging the fraternity culture at Jones Day as like the real sexists of our day and claiming that women can't handle the work environment. And so, you know, obviously the plaintiffs in these cases are highly successful lawyers who are going to have wonderful careers, even if it is not at Jones Day, and even if it is not, you know, at this narrow class of firms

doing kind of elite appellate practice. However, by making these claims, like they are kind of giving up the privilege to be a part of that, that is not something that everyone is going to be willing to do. And it's definitely not something everyone is going to be willing to do as long as the law firm strategy is, I'm going to make this as difficult as I can for everyone involved. Well, and don't discount the signaling effect that Jones Day can send to other law firms. I mean, I think the two

plaintiffs here are in a particularly plum position because they have incredible credentials, like, you know, like there's someone who's going to take a chance on them. People who don't have SCOTUS clerkships and, you know, didn't go to fancy law schools may not necessarily believe that they are in a position to make waves about this stuff. So, I mean, I think there are the people who have brought these challenges thus far and are not, you know, equipped or with these kinds of credentials, I think, are really taking a risk. And they're incredibly brave to raise these questions because these are the workplace conditions that are going to affect everyone going forward. And they're the ones to actually flag it. Yeah, I think it's really brave, too. And so, again, these are reproductive rights and justice claims, like the terms of workplace conditions and whether or not

you can make choices about family life are a big part of the reproductive justice movement. And again, they're not just women's issues. Like here we have men who want to be a part of their family's lives, a meaningful part of it, and they're not being able to do so. All right. So I think that just about wraps it up. Thanks to all of you for sending in your great feedback. We got a lot of terrific comments on Twitter, and we're so grateful for the feedback that you've provided. I want to single out one correspondent who is a blast from my past. Thank you, Kevin Ritz from the Memphis U.S. Attorney's Office Appellate Division, who said that he was watching or listening in our last episode, and he loved our ACCA coverage.

He loved it in part because in college, Kevin was a member of the Virginia Gentleman. So not only is he down for the Armed Career Criminals Act, he's also down for some ACA Pella as well. So he liked all of the ACA coverage. So thank you, Kevin, for writing in. And thanks to all of you. Please keep your comments and questions and feedback coming. We will be going live with another show in the next couple of weeks that will preview the upcoming October 2019 term. So stay tuned for that. And thank you for listening. And many thanks to Melody Rowell for producing us.

And she's got some big things going on in her life. So we're glad she's fitting us in. And we're really grateful for all of her help. Thank you. And the next time you hear from us, it will be our official launch and start to the regular season. And if you just need more strict scrutiny in your life in the meantime, including gifts and breaking SCOTUS news, you can follow us on Twitter or you can follow the show at strictscrutiny Wait, wait, wait. Are we all going to be called of Clarence in this new season? Is that our handmade name?

Yeah, honestly. You get to be of Samuel. Kate, you can be of John. I'll be of Clarence. Can we say that? I don't know. I'm not sure, honestly. We may want to have this out.

Let's think on it.