Strict Scrutiny - Save Your Yarn

Episode Date: June 30, 2020

*airhorn* The Supreme Court released the opinion in June Medical Services v. Russo-- this term's big abortion case. Leah, Melissa, and Kate discuss. 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, a podcast so fierce it's fatal. In fact, this is an emergency recording. We just got decisions this morning in three cases.

One about foreign organizations not helping prostitutes. We're not going to talk about that one. Another one about the CFPB. But we also got a much anticipated decision in June medical services versus Russo. So we wanted to talk about that. So who else is with me? I am. It's Leah. Hey Leah. Hey Melissa. And it's Kate. I'm here too. And this is Melissa in case that wasn't obvious. So we finally got a decision in a case we've been waiting for, for a long, long time. So we finally got a decision in a case we've been waiting for for a long, long time. So how are you feeling?

You know, some initial relief, followed by waves of terror about what is likely to come after reading the opinions in the case. And I should note that, you know, people feel very happy about this result. I don't want to detract from that. It is a significant win, and it would have been extremely gutting had there been a loss. But as we'll unpack in a little, there is much to say by way of the reasoning in the decision. Yeah. So let's give a little reminder, right, about the case. This is kind of this deja vu case. Right. In 2016, the court struck down a Texas law that, among other things, required doctors who perform abortions to have admitting privileges at a nearby hospital. Fast forward four years later and the court was reviewing an identical Louisiana law. And as Leah alluded to, you know, the bottom

line result here is that the Louisiana law falls in the same way that the Texas law fell, right? The court held four years ago that the Texas law had no medical benefit and would impose substantial burdens on women seeking abortions. Whether that formulation is still the formulation that will govern such review going forward is a big question that this decision leaves open. But bottom line, this Louisiana law cannot go into effect. And that is a significant victory for the clinics that brought this case, for women in Louisiana, for the Senate for Reproductive Rights and Julie Rickleman, who we've talked about, argued the hell out of this case before the Supreme Court in her first argument. So that is the bottom line. And the breakdown of the decision, it's another Breyer opinion,

as was the Texas case. He writes for himself, plus Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts cast the fifth vote, just concurring in judgment. So his opinion is a really crucial one. And that's, I think, the one that, you know, Leah suggested actually actually, was kind of terrifying. Sort of the more you read it, the worse it looked. And then you have all the other men writing their own rants against abortion, which, you know, we will get to later. They each wrote, there were four dissents. It was pretty wild. Maybe this is just a commentary about how decision days are experienced by other people. Because I think I am most sort of surprised at all of the Twitterverse sort of the embrace of Chief Justice Roberts. He's been invited to the barbecue.

People are sending him Planned Parenthood shirts. He's going to lead the Women's March next year. It's going to be great. There's a grandma in Idaho knitting him a pink pussy hat. And I'm like, if you read this opinion, it's not a full-throated endorsement of Roe, of abortion rights more generally. I mean, it's basically like, hi, I didn't agree with this opinion in 2016. I would have upheld this law in 2016. But here we are in 2020, and stare decisis is not obviously for suckers. So I'm going to go along with it. But if you actually read in the opinion, I don't think he's going along with anything at all. I think it totally trims back whole women's health in really important ways.

It makes Casey front and center, even as Whole Women's Health, I think, tried to make Casey sort of toothier and more robust. So I actually don't think this is a huge victory at all. And I feel like I'm, again, Cassandra, destined to know the truth and not be believed on this. Yeah. I mean, as I think, I think we'll talk about the Chief Justice says I am basically required by stare decisis, which footnote is not for suckers always, but might still be for suckers given what he says about whole woman's health. He is required to strike down this law and treat quote, like cases alike. However, he says at least two things about the reasoning in whole woman's health and the legal standard that he thinks applies to abortion restrictions that I think are blatantly inconsistent with Whole Woman's Health.

And he essentially says to the extent that they are inconsistent with Whole Woman's Health, I would just vote to overrule those aspects of the decision. And that's also how the dissenting opinions read it as well. And those ways of his cabinet whole woman's health would give states a green light to enact a whole litany of restrictive abortion laws. Yes. There's on page four of his opinion, he writes, sorry, decisive principles also determine how we handle a decision that itself departed from the cases that came before it, which I think by which he means whole women's health sort of imposing a more robust standard for lower courts than Casey did. And so he's like, we're taking

this back to Casey. And it's like whole women's health never existed at all. Well, and we should say sort of taking it back to Casey and not just, you know, in a particular articulation of what Casey is and stands for, right? So Casey, in a lot of people's imagination, is a decision that importantly, particularly where it looked like the court was going leading up to Casey, reaffirmed the core holding of Roe. And that is a lot of the time how we talk about Casey. It sets forth this undue burden standard.

Sure, like Melissa shaking her head, which you can't see on the audio, but that it is, you know, both better grounded in certain respects conceptually than the Roe decision, but actually protects substantively less, I think is one way we talk about Casey. But sort of regardless, and we could argue for hours about what Casey does and doesn't stand for. But what Roberts seems to want to recharacterize Casey as is a big loss for abortion rights. Right. So like Casey, remember, upholds almost the whole Pennsylvania law, except for this teeny narrow little exception, right? So he sort of throws all this emphasis on a number of aspects of the law challenged in Casey that the court actually lets stand and just says, you know, and there was one teeny little thing we struck down. Of course, that's the thing that most people focus on in Casey, right? Which was, again,

the Constitution has to protect some core of the abortion right in order for this restriction on it, which was this spousal notification requirement to run afoul of the Constitution's protections. And yet, so that, I thought, was a really striking recharacterization. You know, when we teach, like, started at Cises in law school, like, you know, cases are rarely on all fours with cases that came before. So in some ways, that does seem like part of what he is saying. The reason I am doing what I am doing here is because maybe the advocates just really erred in bringing the identical case before us. Had they just brought up another case or had another case gotten to us first, the result would look very different. So it's almost this kind of

seems like chastising the sort of litigation strategy that served them up the same case. It's not even a chastisement. It's an invitation. Bring me something different. Yeah. And then, you know, all bets are off. And he does, the chief justice does to Whole Woman's Health what Casey did to Roe, as Kate just explained. Casey says we're not going to overrule Roe, but instead of using strict scrutiny, no pun intended, as the standard of review to judge abortion restrictions, we are instead going to adopt the more lenient undue burden standard. How lenient is it? Well, we're going to uphold three of the four abortion restrictions that came before the court in Casey. Now, fast forward to Whole Women's Health versus Hellerstedt and June Medical. In June Medical, the chief says, I am voting to strike down the restriction that is the abortion restrictions that are not only inconsistent with whole women's health, but also substantially more indulgent of state's ability to restrict abortions. One thing he says is, I don't think the legal standard requires any analysis of whether the law benefits women's health and safety. So the state doesn't have to prove with evidence that a law offers any health benefits. And then he says, I don't think

you have to weigh the benefits that a law offers against its burdens. The only question is, does it impose a substantial burden? And both of those things are likely to weaken the legal protections for abortion, while at the same time, again, he voted to strike down the law and uphold the outcome in Whole Woman's Health versus Hellerstedt. But isn't here, I mean, I think that you guys have maybe read that decision more closely than I have, but doesn't he seem to be suggesting that here the burdens are pretty significant? And so even if you're just doing a burdens analysis, this law still fails? So I don't, I guess two things about that. One is keep in mind that, you know, he wasn't the

dissent in Hellersted. That was a case where the Court of Appeals said it wasn't a substantial burden for almost one million women to live nearly 150 miles or more away from a clinic. So it's possible that his view of the burdens in this case is informed by the fact that it is the same law that Texas enacted and that the court invalidated in Hellerstedt. And then second is consider how the standard is going to work in the hands of all of these new lower court nominees. How is the ghost hunter, whoever is sitting on the district court and wherever, and how

is the U.S. Court of Appeals for the Fifth Circuit with Jim Ho going to say that, is this burden substantial? I mean, no way. So giving them this leniency and basically saying, like, I'm open to cutting back the legal standard is, again, just an invitation for them to get him cases that are upholding laws that the Supreme Court has not previously invalidated. So, I mean, I wrote a piece in SCOTUS blog, I guess it was a year ago now, looking ahead to this case, and I called it party of five,

question mark. And, you know, it was like, you know, who were the four who granted cert on this case that arguably should not have been heard at all? Well, we know who the four are because they're all in dissent. And the question was whether they could get the chief justice to join in on this buffet. And so I think he's sort of saying, like, I'm not here for this party of five, but there's another party coming up. And, you know, and then we'll really feast. But like, bring us something different. Bring us something new. Bring us something that doesn't look as nakedly obvious as what you did here. And yeah, and then then we're in business again. And ideally not in an election year, While the Democrats are talking about major structural reform to the Supreme Court,

whether it's court, you know, packing or term limits, jurisdiction stripping, term limits, you know, whatever the case is, now is not the time to ask me to uphold a law that the court just invalidated four years ago. Yeah. Not while I'm still having PTSD from the impeachment hearing. Right. Yeah. Not while I'm still having PTSD from the impeachment hearing. Yeah. No, but but actually like a sort of cynical read of this that actually cuts a little bit in the other direction from that, Melissa, is that actually this is the chief kind of carrying some water for the president and the Republican Party, because a decision that could galvanize the Democratic voter base. Right. That really cut into Roe or said something. That was in Casey. That was the thing in Casey. But that, you know, it has been very effective politics to run against Roe for, you know,

nearly, you know, 40 years or so. Could it be actually something that galvanizes the left of the Democratic base if, in fact, this, you know, the court flipped and running with abortion as, you know, not something that is taken for granted. Could the Democrats actually be able to make something productive politically out of a decision that went in the other direction? I think quite possibly, yes. So I don't really think Roberts, you know, decides to cast the vote that he does here for such partisan reasons. But, you know, it's certainly one possible explanation. Those were, I think, some of the considerations floating around in the ether when Casey was decided. Because, you know, Casey was decided on the heels of the Thomas confirmations.

1992 was, you know, the quote unquote year of the woman. that overruling Roe formally in an election year like that would just galvanize women voters, even though they were already galvanized, I think, after the Thomas Hill hearings. But, you know, they sort of split a little and this sort of sub Rosa overruling of Roe. I mean, I think that is what Casey is, whether we say it or not, while letting it formally stand. But it's completely huddled out. I think you get the same kind of thing here. Everyone's talking about this like it's a victory. No one sees this as the Trojan horse it is, except the three Cassandras here. And I just think this is a time bomb. Yes. And it's important that the chief justice also understands that Casey was a victory for proponents of abortion restrictions. Right. Like he understands that even though the court didn't overrule Roe, they gave people who want to restrict abortion a major win by giving them a legal standard that allowed them to regulate abortion out of existence.

Just like, again, he is doing so here. So, Leah, you're going to teach reproductive rights in the fall, so maybe you already know this. Like, there is this amazing memo, we included it in our Reproductive Rights and Justice book, that was written by a young deputy solicitor general to the solicitor general, where this young deputy Solicitor General... Who is that Deputy Solicitor General, Melissa? Wait for it. In this memo, this young Deputy Solicitor General talks about, you know, a frontal confrontation with Roe is not the way to go. Let's mitigate the losses and instead try to think about how to use these laws

to restrict the opportunity to exercise this right. And that's basically the blueprint, the Casey blueprint. And the young deputy solicitor general who writes that is none other than Samuel Alito. Samuel Alito had some things to say about this case, as did all of the other men, it turns out. They just could not contain themselves in there. The men's have ideas. The men's have ideas. Yeah. The men's have ideas and they're pretty sure the world needs to hear them, even though many of these ideas are, of course, the same. You know, Justice Thomas writes an opinion that says I would overrule Roe and Casey. I would also say the abortion providers don't have standing.

You know, these are both- I'm sorry, the abortionists? Yes, abortionists. The abortionists. It's like the Cider House rules up in here. I mean, it is definitely worth talking about the language that all of these justices use, especially given that we highlighted

Justice Alito's tonal choices in Thurisacium. Yes, so Justice Thomas would say the abortionists lack standing and never to be left out. Justice Alito then, you know, pens an equally angry dissent in which he accuses the court of bulldozing through a variety of laws to reach this result. And then we had Justice Gorsuch and Justice Kavanaugh also pending their dissents. And the only difference between them was how many cases they would overrule. Both Justice Kavanaugh and Justice Gorsuch would have overruled Whole Women's Health versus Hellerstedt. Justice Gorsuch would have gone further and overruled any cases that prevented him potentially from saying that the abortion providers did not have standing here.

Although Kavanaugh does, you know, purport to say, you know, send this back for some like additional proceedings, the TLDR of that portion of the Kavanaugh dissent, I think, is just like, I am actually extremely open-minded and did not lie to Susan Collins. Like, he does kind of say that. That was his whole point with the stay. Like, let's just send it back and we'll see if they can get admitting privileges. But yes, Susan, I'm being open minded. Yeah, I was gonna say like the TLDR of that dissent was like gaslighter in chief, right, as he did in the stay application say, well, maybe if the doctors just tried harder,

they could get admitting privileges, right, even though the district court had required them to do so for the better course of a year. Or in Garza versus Hargan, where he says, right, where he says, oh, I'm not saying the Office of Refugee Resettlement can lock this woman in a building and prevent her from getting an abortion. I'm just saying they can keep doing that for like a few more weeks, right? Which may or may not. While they find a guardian for her. Right. that for like a few more weeks, right? Which may or may not... While they find a guardian for her.

Right. While they find a guardian for her, which may or may not, you know, delay her abortion to a point at which she's no longer able to obtain it, at a minimum making it medically more risky, and so on and so on. So have we talked about the prior plurality? I feel so bad you said not one word about the author of the controlling, well, the plurality opinion in the case. Our friend Steve. Yeah. I mean, I just I kind of feel bad for Steve. He wrote that great opinion in Whole Women's Health versus Hellerstedt. It lasted for, you know, four years, circuit two and a half years at the Supreme Court for, but. I mean, again, this may be for the listeners an interesting point just about how fragile these lineups are.

I really do think you can read the chief justice's concurrence as sort of taking aim at the whole idea of whole women's health being the standard. And interestingly, I don't know that Breyer really rebuts that in the plurality opinion. I mean, you have to imagine that Steve Breyer was going to bed every night dreaming of waking up to a memo that said, Steve, please join me in your opinion from the chief. And, you know, holding out hope for that dream might have prevented the, you know, digging in and throwing elbows at the concurrence. Yeah, I mean, yeah. Like making sure he didn't go to the other side. Right. Yeah. Yeah. You did a yeoman's job here, Steve. You did.

You did your best. Yeah. And his law, we should also say his law clerks. I mean, he basically does a de novo review of like, there's like these incredibly protracted processes of getting admitting privileges of each of these doe doctors. And normally they don't do that. But because he sort of says, you know, the Court of Appeals purported to set aside these district court findings, like we're actually going to take our own look at the underlying evidence. And yes, in fact, the district court was far from clearly erroneous.

In fact, the evidence here is a lot stronger than it was in the Texas case that these doctors made all kinds of good faith efforts and could not obtain the privileges. And so, yes, that was a lot of work for those law clerks. I appreciate it. These doctors made all kinds of good faith efforts and could not obtain the privileges. And so, yes, that was a lot of work for those law clerks. I appreciate. This has been a very serious downer of an emergency episode so far. I think it's well-founded. Let me just throw out a theory. I'm not sure I even believe this, but we've talked about ways to kind of link up some of these surprising John Roberts votes this term and last term. And is there something about, you know, sort of an intolerance for manufactured justifications that is like a through line between census and DACA and this case, which is like, everyone

knows that Louisiana's purpose in passing this law is not to promote or protect women's health. And there's nothing explicit to that effect in the Roberts opinion. And, you know, the alternative is to openly announce that your purpose is to discourage and eventually eliminate abortion in your state. And I don't know what the court would do with such an articulated justification in the case of an abortion restriction. But I wonder that, you know, it feels like there is something there. There might be something to sort of that that thread. But tell me I'm wrong. On that logic, if the logic is basically go back,

stop lying, just be honest, stop gaslighting and be honest about what you're doing. If you take the rest of his concurrence seriously, if a state were to say, no, like we're definitely trying to eliminate abortion in our state, that is a substantial obstacle. I mean, so it can't be that that's what he wants, because even under his sort of bastardized version of Whole Women's Health, which is really Casey, that is a substantial obstacle. So it can't be that. Purpose or effect. I mean, like in Masaryk, they sort of narrow the purpose prong of the kind of purpose or effect. Well, and the chief just basically abandons it, right? He says, I'm not going to assess whether the law actually produces any benefits. Right, right. So, but that's the effects piece of it. Like, is there a return to purpose, I guess, is a question

that is maybe worth posing. I don't think that's a way to salvage this case and sort of what it suggests for future such challenges. But maybe it is as simple as this was just too much. This was a bridge too far. And it's just pure sort of the optics of the court looking so nakedly political in this sort of these identical facts was just too much for the chief. The justifications wouldn't be the same. But I guess I'm not totally convinced that he is 100 percent signing. I guess I don't think he's signing on to that Thomas opinion or the Gorsuch opinion in another case that – like, historicized discussion is very different from Thomas's, you know, clearly erroneous. Like, it just is.

To that point, is this – is one way to read the chief's concurrence here a slap down to the Fifth Circuit? Like, I said what I said in Whole Women's Health. Or we said what we said in Whole Women's Health. He did not say it. We said what I said in Whole Women's Health, or we said what we said in Whole Women's Health. He did not say it. We said what we said in Whole Women's Health, but also a slap to the four others. Like, why did you vote to take this? Like, we said what we said. Oh, so it's interesting that you think that the four voted to take this. I think it was the liberals. Like, they also had to vote to take it. Yeah. After they voted to grant the stay. Oh, after this. I mean, like before that, just like I know.

But they couldn't the liberals couldn't leave that Fifth Circuit opinion on the books. They just couldn't. Anyway, I don't know. I don't like being in this position of trying to like divine meeting out of like things I really cannot understand. Wow. Maybe in exchange for sending him his pink pussy hat, the chief will give us an interview to share some of what he's thinking. I'm not, I never knitted one of those hats. I can't knit. I hate pink. I wasn't making, I did see that on Twitter this morning and I was just sort of like, like, if you can't see me, listeners, my eyes are like really big, like an emoji. That was insane when I saw that. It was not great. Save your yarn. Yeah. Thanks, everyone, for listening. We will, of course, have an analysis of the court's other major decision today, CELA law versus CFPB, which impaled the structure of

the Consumer Financial Protection Bureau, as well as the other decisions that the court is likely to announce the rest of this week for our regular episode. So thanks, everyone, for listening. Thanks to Melody Rowell for getting this episode out quickly, and we look forward to talking with you soon. ...

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