Sex Trafficking Lawsuits, Privacy Rights, and a Court That Can’t Keep Up
00:00Strict Streetney is brought to you by Americans United for Separation of Church and State.It's back to school season, and this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms.Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools.28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court.and we need you to amplify their voices before the Supreme Court gets its hands on this case.They're going to go up, but we're going to fight to get them taken down.That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple.Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools.
00:48The story they tell in this video is moving, and we hope everyone hears and shares it.There's a human cost of Christian nationalist policies like these Ten Commandment laws,and the decisions that the Supreme Court hands down.You can visit A.U.org forward slash 10C to learn more about this caseand how you can help join the fight to protect church-state separation.Mr. Chief Justice, may it please support.It's an old joke.When I argue, man argues against two beautiful ladies like this,
01:21they'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 legs.Welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.We're your host today.I'm Leah Littman.I'm Alyssa.
02:03And I'm Kate Shaw.And yes, the band is back together.We are ready to tear it up.We have a great show in store for you today.So we're going to cover some news, including our nation's possible.accelerating slide into full-scale fascism. It has been quite a week. We will then recap oralarguments from last week sitting at the court because last Monday was a federal holiday. It was apretty light week, but we'll still squeeze some good and bad times out of it. And we will then
02:28bring you a terrific conversation that Leah had with Alice Olstein about Alice's new book,Side Effects, How Abortion Bans Impact Everyone's Health. We're just trying to remind everyonethat, you know, Dobbs wasn't the end of, but in some ways the beginning of the story of how the Supreme Court has intervened and affected everyone's lives.And as usual, we will end with our favorite things. So let's get into it.First up, let's do some news. And we'll jump right into some breaking news on the DEI beat. The new DEI beat. That's right. The boys continue to outdo themselves.On Thursday, a civil lawsuit was filed in a Florida district court accusing Reparpoise.Republican former congressman Matt Gates of trafficking two young women. The allegations, which Gateshas denied, are the latest developments in a long-running sexual abuse scandal slash allegations involving
03:20the politician who resigned from Congress in November 24. Listeners, you will recall that after Gatesresigned from Congress, the president, then the president-elect, nominated him to be attorneygeneral. Because Dick, I mean merit. Gates ultimately withdrew when it became clear that Senateconfirmation for a fret, paddle turned into a real live boy via Botox injections.When that didn't look like it was going to pan through for him, Pamela Joe Bondi got the nod.Ten bucks says that if Gates had been confirmed, he'd still be our attorney general, regardless of the sextrafficking allegations, because DEI, dudes, ex-husbands, and imbeciles.But you know who did not mention these new Matt Gates developments in her first and maybe only turn at the lectern?
04:06the new or maybe former?Why does press secretary Katie Zachariah?Why not both?So we're recording this on Friday afternoon.The news is breaking fast and furious,but I do believe that she is out.So I guess we're just going to talk about her one turnat the press corps podium,
04:22which really did involve never-before-seen levelsof a particular kind of energy.Let's talk about it.Can we talk about this energy?Because all I have to say is right now,our girl, Virgo, Caroline Levitt,is sitting somewhere in her home stroking a hairless cat because I don't even know what to say, listeners,roll the tape and you'll see exactly what we mean.
04:45Good morning.Good morning.I am so honored to work for President Trump and the American people as the new White House press secretary.I want to thank President Trump for his trust that he has placed in me.I have wanted to work for him for a very long time.I'm looking forward to working with each of you as well,especially as we are in the middle of the midterm blitzwith energy and excitement, never seen before in the history of midterms,
05:26thanks to President Trump.He had a historic one-day war, and now we have a booming economyand a great relationship.With Venezuela.Okay.The idea of not spending evenings with my kids is completely unacceptable.So my president, excuse me, my husband, that's a good one.My husband is out here.
05:49Yeah, let's just stop.The energy, the excitement are impossible to describe.Because there's stage directions.That's the problem.Who knew?D.I. is what brought us press secretaries who could read.It didn't feel like it was just flowing.in the way it should have.
06:07She did not exactly cover herself in glory.And again, I come back to the stage directions.Who among us hasn't read the stage directions out loud by mistake?Me, me. I have not done that.I have not done that.Also me.Okay.You know, Melody, I'm sure, would be like, I've had to cut some stuff you guys have said.
06:29That is definitely true.True, true.Never stage directions.Never stage directions.Like warmly.Say it like you mean it.Looking back on the glory that preceded Katie, you know, someone pointed out or lined up an image of Kellyanne, Kaylee, Caroline, and now Katie.And it was really—
06:49K, K.It was very eerie, right?Maybe that's what Katie had to go.Very eerie when you line all that up.But as we sat down to record, we got news that Trump gave Katie the option to leave her job as White House press secretary.Trump reportedly said, quote,Maybe it's not for her.I think, I think Katie made it more or around half a scaramucci.
07:13I mean, I think we got to be a little more precise.I'm not sure this is a half a scaramucci.Let's give the mooch his due.In any event, to reflect on the very short career of Katie Zachariah as White House.I spent a little retrospective right here.Let's do a retrospective right here on Katie Zachariah.Exactly.What's the last 24 hours? Before she joined the White House as presbytery for that one turn at the lectern,
07:43Zachariah was a talking head on Fox and Newsmax. She also received a law degree from Pepperdine University's Caruso School of Law.There's a lot of discussion in the media about whether Zachariah was a practicing lawyer. And reports suggest that she has not passed the bar. But Zachariah explainedthe oversight, if you will, in this way.A lot of the misinformation, miscommunication, Jack, is around the fact that I labeled myselflawyer and I consulted for a very long time.Many people in the field, is it okay and acceptable if I label myself lawyer, not attorneyat law, not Katie Zachariah Esquire, but lawyer, and provide legal analysis, not legaladvice and they said absolutely across the board you can call yourself a lawyer you have a jd
08:38and to buffer that you have international legal experience and transactional law which gives you theability to analyze it not necessarily give advice and so that's that's where a lot of thisdiscussion has come from and you know it's unfortunate that people dub this is some kind ofconspiracy or or want to put me into camp the truth is isI was very careful how I executed this and I never came across as someone who was an attorney at law.So it sounds like she did not pass the bar. And to be clear, there's no shame in that. The bar exam is hard. California's is especially hard. A lot of people don't pass on the first or even second time they take it. And you definitely don't have to be a lawyer to be the White House press secretary. So probably better if you're not a lawyer. Probably better if you're not. So I just think like our position is if you are going to rag on Katie and we absolutely invite you to do this.that. Do not do it because she did not pass the bar exam. Do it because she is or was a spinelessmouthpiece for the administration, which meant at least one time opening her mouth, and I guess previously
09:45on cable news as a talking head, defending this lawless, dangerous, destructive administration.So maybe let's do a rundown. Yeah. Of the lawlessness, not Katie, but the lawlessness.Well, you know, or of women no longer having jobs because one of the few questions Katie actuallytook on her first and first day and only presser as the new White House press secretary was aboutthe now former ambassador to Greece, one, honey please, Kimberly Gilfoyle.Gilfoyle is now the former ambassador, seemingly because the Wall Street Journal reportedthat Gilfoyle allegedly pleaded with a Trump donor to pay off her $100,000 Amex debtbefore her confirmation hearings in exchange for Gilfoyle being his mouthpiece and advocate in
10:31the Trump administration.obviously a lot of grift going on in this place only women get fired for it right she is fired for i thinklike trumping while female it's the new d w i i don't know something like that trumping while femaleand in writing i mean i think those are the two big problems papering papering trumping in a paperedfashion okay because i think if you were trumping and papered it or trumped while female one of thosealone probably would have been fine but uh but the two togetherI couldn't survive.Interesting.
11:05Speaking of the Trump administrationand its antipathy for women,especially black women, having jobs,we should bring you some new updates.Last week, Leah mentionedthat the president had formed a start chain,excuse me, a committee of inquiryto look into concocting
11:20new reasons for firing Federal ReserveGovernor Lisa Cook.Well, in True Can't Stop,won't stop energy,massage an noir edition.Last week, the DOJ announcedmultiple ongoing investigations into Minnesota Representative Ilan Omar. One of these investigationsallegedly concerns allegations that Omar, who came to the United States as a child refugee from
11:42Somalia, obtained citizenship through fraudulent means. As part of that investigation,DHS agents executed a search warrant on Omar's D.C. residents, seizing boxes of documentsand other materials including her passport, a mobile phone, personal computers, and notebooks.Federal agents have also issued more than a dozen subpoenas in this investigation, including some directed at Omar's relatives.All of this is apparently part of an effort to scour her family's history for evidence of fraud and false statements in the completion of immigration paperwork.And this is all according to New York Times reporting.And that is not even all.So our favorite box of wine slash United States attorney, Janine Piro, announced that her office is also investigating Omar's financial.
12:29disclosures. So just to be clear, raiding the home of a prominent member of the oppositionpolitical party who is also a fierce critic of the administration in the weeks before a pivotalelection is a genuinely new low for this administration and another chilling development in thisdissent into fascism that we mentioned up top. All of these developments involving Elon Omarcome weeks before the November 3rd midterm elections, control of both chambers of Congress is up for grabsin that election. Omar is seeking a fifth term representing Minnesota's fifth congressionaldistrict, and early voting is actually already ongoing in the state of Minnesota. And this mattersfor all kinds of reasons, but in part because as a longstanding matter of Department of Justice
13:12Policy, DOJ is supposed to avoid public investigative actions involving candidates for officewithin 60 days of a primary or general election. So we are very much well within that windowwhen it comes to the actual election day, but also because election is alreadyhappening. But Todd Blanche is driving the car and it is obviously a new day at DOJ. I do want tounderscore that the proximity to the election isn't the only or in my view most important problem.It's the racism targeting a political critic for being on American because they are black andwere not born in this country trying to deport and denaturalize them. Like whenever this was goingto happen, it was going to be a new low and it is. And it needs to be understood in the context of the
13:57vile and racist and specifically anti-Somali immigrant rhetoric that the president has spewed withincreasing ferocity in recent days and weeks.I'm glad you guys said it so I didn't have to because, yes, it's been some real fuckery.Struck's scrutiny is brought to you by Cozy Earth.Now that it's small, I'm finally able to whip out my Cozy Earth bubble cuddle blanket.And it follows me everywhere.Actually, I'm lying.It doesn't.
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17:17It may be a new day at DOJ, but it's the same old crap at SCOTUS.The court waited back into an ongoing dispute concerning discounted ad rates for political parties.Listeners, you may remember that guest host, Rashon Robinson and I first discussed this back in September.Under federal law, discounted ad rates are available to candidates for federal office during a 45-day period before the primary election and the 60-day period before the general election.In March, the FCC's Media Bureau issued a public notice indicating that political parties and joint fundraising committees should also be able to.to receive those favorable rates. Well, a group of Democratic candidates, which includesJohn Assef, aka Senator My Boo of Georgia, Sherrod Brown, a former senator from Ohio who's currentlyrunning to be senator again, Governor Roy Cooper of North Carolina, who's running for the Senate,
18:14and Michigan Representative Kristen McDonald-Rivitt. They all went to the FCC in April seekinga review of that public notice. And in June, because the FCC had not acted on that requestfor review, they filed a lawsuit arguing that the public notice contradicted extant federal law.And a divided panel of the Fourth Circuit agreed. Then the National Republican Senatorial Committeeand the National Republican Congressional Committee called the Wambulence, 9-Wang, aka the emergencydocket at the Supreme Court, asking the court to stay the Fourth Circuit's ruling. And the courtdid so, agreeing that the Fourth Circuit lacked jurisdiction to issue a ruling before the FCC, the FederalCommunications Commission, had completed its review, which of course the SAC.
18:55was dragging its feet on because time and a looming election.The case went back to the lower courts.The candidates requested a court order instructing the FCC to act on their petition for a review.A divided panel of the Fourth Circuit granted that request and directed the FCC to issue its decision by noon on FridayOctober 9th.But SG John Sauer, as is his want, went running to his daddy scotis, asking for a stave the big badfourth circuit's decision, please.And not to be outdone in crying to.
19:25Daddy Scotus, the National Republican Senatorial Committee and the National Republican Congressional Committee again jumped into the wambulets to also file similar petitions.And that day, the chief who handles emergency applications from the Fourth Circuit issued an administrative stay, pausing the Fourth Circuit's order to give the justice's time to consider the request and instructing the challengers to respond on Saturday.In their Saturday filing, the candidates maintain that the FCC was proceeding in bad faith and engaging in blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.They urge the court to leave the Fourth Circuit's order in place.So guess what happened?The Supreme Court ruled for the government insisting that while the FCC must act on every application it receives, it isn't required to act within a particular time frame.Take your time.Exactly.
20:14Nothing going on here.Sometimes agency action is okay.the eyes of this administration, or inaction as the case.Inaction.It's fine.Exactly.The Four Circuit's order instructing the FCC to review the candidate's petition violatedthe system of separation of powers, according to the Supreme Court.
20:32Bottom line is you should be prepared to see the Republicans buying shit tons of discounted adtime as we go into the final days of the midterm cycle.All right.Shifting gears, let's break down the October sitting.So shit on the shadow docket.Let's do some shit on the merits docket.We can walk and chew gum at the same time.Doing it for how many years now? God.
20:51Don't even want to count them.Season eight.Season eight, here we are.Okay, so season eight, the first sitting of it ran for two weeks.The first week, as we have discussed, featured a big blockbuster case, Suncor Energy Inc.versus County Commissioners of Boulder County.Melissa and Leah discussed that case at length last week with the wonderful guest, Kirti Dotla, of Earth Justice.In the same week, the court also heard arguments in three other cases we didn't have a chance to discuss in our last episode.
21:18Those cases were Anderson versus Intel on how to plead an ERISA, that is the Employee Retirement Income Security Act claim,and Johnson v. United States Congress on how constitutional challenges involving veterans' benefits should be brought.And Department of the Air Force versus Prutahi Guahan, a case involving a challenge to a federal government plan to conduct open bomb detonation in Guam,an argument that focused a lot on whether there had been or would be final agency action that might make,a challenge ripe for adjudication.Because of the Indigenous People's Day slash Columbus Day holiday, the second week of the Octobersitting was a pretty light one at one First Street.I have some ideas about who treats it as Columbus Day rather than Indigenous People's Day because
22:06pre-tell.Did you all catch the news that one Samuel Alito is reportedly fighting to keep a statueof Christopher Columbus up?Because taking it down would be zero points for guessing anti-Italian discrimination or, in his words, an insult to the Italian American community.There is an actual Sopranos episode about this.There is.Yes.Right.
22:33I mean, there is.And I'm glad you remembered it because that's the first thing I thought of.The other thing I thought of was that this is giving real concerned alumni of Princeton energy, where letting those ladies.ladies into Princeton is definitely going to be some anti.Not good. Not good for the men's. Not at all.Let me just say that I cannot wait to send a copy, a gift copy, to Sam Alito of my husband,friend of the pod, Chris Hayes' new book when it comes out because it is actually a lotabout the origins of Columbus Day, which it was kind of the original DEI.
23:04And Sam Alito is going to both love and hate this book.So anyway, I'm just going to drop that right here.It's kind of like how he loves and hates originalism.When it's convenient, when it gets us to the outcomes we want, we love.love it and, you know, we discard it when it doesn't.I mean, like, I like the DEI for Italians, but not for everybody.Don't like the DEI for the black people and the women.Yeah, that's Sam Alito in a nutshell.
23:26But in other news on the imperialist beat, the court, known ally of Christopher Columbus,brought her oral arguments.The court's like, hey, I got some blankets in the back.They only have a little bit of smallpox.Hey, ladies, want to go camping?We're going to get through this, guys.Okay, let's talk through the light week the court had last week.And on Tuesday, the court heard a loan argument, right?
24:00Just the one case.Beard v. United States.And here is what the case is about.So the United States Sentencing Commission, which is an independent agency in the judicial branch of government,on which Justice Katanji Brown Jackson actually sat as vice chair from 2010 to 2014 and knows a shit ton about.this commission publishes federal sentencing guidelines for judges to follow, along with commentary to help judges interpret the guidelines.Now, in 1993, in a case called Stinson v. United States, a unanimous court gave great deference to the guidelines commentary in sentencing decisions, holding that the commentary interpreting or explaining a guideline, which is actually promulgated in the same way that a guideline is promulgated through notice and comment, is, quote, authoritative unless it violates the Constitution, a federal statute, or is inconsistent with, or a plaintiff.plainly erroneous reading of that guideline. So the question here in Baird is whether the Supreme
24:50Court should overturn or scale backstinson. The defendant, Kendrick Baird, argued that recentadministrative law rulings like Kaiser v. Wolki and Loper Bright Enterprises v. Ramondorequire courts to exercise their own independent judgment rather than deferring to agencies.Beard was convicted under 18 U.S.C. Section 922, G1, that is a federal statute, that prevents someonepreviously convicted of a felony from possessing a firearm that is moved in their possession viainterstate commerce. In sentencing Baird, the district court consulted the sentencing guidelines forsomeone possessing a, quote, semi-automatic firearm that is capable of accepting a large capacitymagazine. The gun that was found in Beard's possession was a Glock capable of holding 17 rounds of
25:37ammunition. The Sentencing Commission's official commentary on the guidelines called for a sentence of63 to 78 months imprisonment for the possession of a semi-automatic firearm that had, quote, attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.So relying on that commentary, the district court sentence bared to 72 months imprisonment.Now, this case is in a bit of a unique posture before the Supreme Court.The federal government actually wants the decisions sent back down to the lower courts because it believes the Court of Appeals in this case, the Fifth Circuit, has precedent that goes.too far in awarding deference under stint's end to the guidelines commentary. Because the federalgovernment wants a remand, the case sent back down, and isn't defending the judgment,the Supreme Court appointed an amicus to defend the judgment. And in a stunning display of
26:29self-awareness, Samuel Alito, circuit justice for the Fifth Circuit appointed A. Dick as amicus.Yes, one Anthony Dick argued this case at the justices request, Anthony is a former law clerk toJustice Salito, we actually clerked together. So remember in our first couple of seasons, when the court wasn't deep into jurisprudence of fuckery, we had as deep into jurisprudence of fuckery. We had time to note and cover the shocking gender and racial imbalance and the advocates appearing before the justices as well as the advocates that they appoint, which of course Kate has written a wonderful article about. Thank you. It was a decade ago and I was like, huh, probably by accident. The Supreme Court keeps appoint.All of these white guys with no previous Supreme Court experience to argue these cases.Surely when someone calls their attention to it, they will change their ways.And 10 years later, Kate, a dick steps up to the lectern.Literally.How wrong I was.
27:26Literally.If you don't get it by now, ladies and gentlemen and non-binary listeners, the imbalance persists at the Supreme Court.Only now they've taken it to a whole new level.The appointment of the amicus here, one Anthony Dick, means that there are three distinct visions of Stinson and its vitality in light of these changes to the law regarding agency deference. So the defendant here, Beard, argues that courts should afford no deference to the guidelines commentary. By contrast, the federal government is arguing that Stinson is actually consistent with Kaiser versus Wilkie's limits on judicial deference to agency interpretations. Kaiser held that.that courts must continue to defer to federal agency's reasonable interpretations of their owngenuinely ambiguous regulations, but Kaiser did impose firm limits on when and how that deference could beapplied. The government believes that the lower court ignored those limits and wants the casefor mandated so they can properly apply deference under Kaiser. The court appointed amicus for
28:32his part, this is Mr. Dick, once again, defends a broad reading of the deference required by Stinson.And Kevin Joel Page, a federal defender arguing on behalf of Beard, faced a lot of skepticism from Justice's Jackson and Sotomayor when he pressed the argument that the guidelines commentary.As he explained, there's nothing in the Sentencing Reform Act that requires deference to the guidelines commentary.Jackson, who, as I mentioned, served, you know, as the vice chair and previously as an assistant special counsel, so just an attorney on the sentencing commission, worried that Page's argument went a field of how the guidelines were intended to be used and she should know.So let's play a clip here.I think what concerns me about your arguments is that you're suggesting that they are separable in some way,which is really not the way in which the guidelines were devised. And I think we sort of have a fundamental misunderstanding of how the manual works,because the guidelines and commentary are actually inextricably linked. And what I mean by that is that sentencing judges use the guidelines manual to do.
29:38do what is essentially a calculation. It's kind of like math, that the guidelines themselveshave certain components to them, and the commentary tells you how those pieces fit together,how you are supposed to take them into account. When you are a judge, you're using bothto reach the right answer under the guidelines. And there is a right answer as to what theguideline range is. And so what concerns me about yourthe way of framing this is you suggest that the court can somehow look at the guidelines,not take into account the commentary, not defer to it, not use it, and yet still have an accurateguideline calculation, which is really not how the system is designed. So can you respond to that?
30:27So can I just say I love that she's like, hey, you knobs, I know none of you have ever been to adistrict court when they are sentencing a defendant, but here's how this works. It's very different fromwhatever it is you all do with your time.I love her in these arguments and in particular in this one.And Justice Sotomayor, obviously other former trial judge, was also kind of wary of what Page was arguing and the consequences of overruling or sidelineing Stinson.So take a listen here.All I'm suggesting to you is it's only by reading the application note.Do I know that the magazine has to be attached to it or be in close proximity?
31:06It's only the application note that tells us.Respectfully, I disagree that that comes only from the application note.And the reason is that capable, there is an ambiguity in what capable of accepting a large capacity magazine means.It might mean...I'm a literalist.Capable to me means you can do it.You can give me any alternative you want, but without the application note, you're creating a sea of...confusion for district court judges to fill in the blanks.
31:42Other justices also seemed concerned about the prospect of overruling a precedent.That was refreshing.So take a listen to noted stare decisis enthusiast, Sam Alito, questioning Deputy Solicitor General Eric Fagan.So is it reasonably foreseeable that overruling Stinson would require the resentencing of, what,10,000 defendants from 2025 alone.It's only bad to overrule if it puts defendants back on the speed or gives themthose consequences.Not so abstract.
32:16Not abstract.Yeah.Those will actually impact the men writing on the subway who will need to have guns perBruy.Also the men on the benches, right?True.They're going to have to do those opinions again.That's true.
32:30So Anthony Dick, the appointed amicus curate, had to.face down administrative law freak Neil Gorsuch. Dick argued that overruling Stinson would createchaos. Justice Gorsuch jumped on the distinction between the guidelines, which are advisory,and Dick's argument for an apparently binding guidelines commentary, as Justice Gorsuch explained in hisview, that in his mind would create a conflict with Booker versus United States, a 2005 decisionthat concluded the sentencing guidelines are advisory not binding on judges. Here's Gorsuch.on this point.What about the topsy-turvy problem, that we have binding commentary, advisory guidelines?
33:10Not a problem at all.And I know you say this is all good with Booker, but boy, the more you make these things binding,you're creeping up to a Booker problem.It's not a Booker problem because you have to first accurately calculate the guidelinesrange, right?Like that is still a mandatory part of the process, even though you don't actually have toimpose a sentence within the guidelines range.But anyways.
33:32Well, you're a sentencing expert much more than me, but I was, but I was, but I was,I was hearing Gorsuch doing here was he is sort of, this is a kind of re-arguing the kind of, so Loperbriteoverrules Chevron and says, right, courts don't defer to agency interpretations of statutes.But Loperbrite and the majority kind of preserves this Kaiser idea, but this narrow kind ofdeference to agency interpretations of agency regulations.But Gorsuch, in his separate writing, Loperbrite, was like Kaiser was also part of thisbad old era of deference and we should never defer ever to agencies.And so I think this is just this rearguard action that he is trying to.
34:03bite under the guise of, well, it's a problem under Booker.So that's sort of how I read Gorsuch's question.Yeah.Not to be outdone.Coach Kavanaugh had his classic take on the issue in this case.Quickly, your approach that you're recommending would not be pro-defendant or pro-governmentcorrect in the sense that some of the commentary is pro-defendant in certain cases and someis pro-government in certain cases.
34:29That's right, Your Honor.I think it's no...This is his ultimate, like, the Constitution is not.either pro-choice nor pro-life, right? It's not like...Studiously neutral.It's not anti-trans. It's not pro-trans. It's not pro-defendant. It's not pro-defendant. It's not pro-government, right? Like, I am Brett Kavanaugh, and this is my galaxy brain. Take, and I have it every single case.The Constitution is pro-sports, though, I'm pretty sure. Yes, definitely. It's just not pro or anti-any anything else.Yeah. So how do you think this one is looking this case? They seem to warn to me. I was going to sort
35:03actually say, I'm not sure. I think there are these kind of cross pressures. Like, they're notsure how this, like, we're jettisoning deference elsewhere. This agency is distinct from otheragencies that sits in the judicial branch as opposed to the executive branch. There's all these,you know, cases, these sentencing guidelines were once mandatory and now they're just advisory.And so I actually don't know. I was just, I just feel like we didn't really have a chanceto talk about Johnson, the Veterans case, about whether constitutional challenges get brought in anadministrative tribunal or in federal district court. But I just feel like in both of thesecases, it is a little bit the court slowly maybe realizing that they are just creating a hash
35:37of so much law and so many kind of settled practices through this kind of disruptive overruling.And I mean, it's, you know, it's low per bright here. It is all of these cases regardingpresidential control in the veterans benefits context that are sort of implicated there.And, you know, this kind of like, what would happen if I just like pulled out a block fromthe Jenga tower based on some like idiosyncratic belief about like thedecision of 1789, and then just like they throw everything into question. And I kind of felt likeyou saw some of that happening in both of these arguments. Well, that suggests that they sort of likeare having qualms about it. Like maybe they just are pulling out the blocks being like,
36:15let's see what happens. Maybe. I mean, like genuine low-key chaos agent energy. I don't think we'reat the me-sewing me reaping point yet, right? I think they have like an infinite capacity.They're going to sew it for a while yet. All that is wrong in the world to everyone else butthem. Okay. Yeah. That's probably. And yeah, maybe forever. But I.at least felt like they should be starting to kind of get wise to who is responsible for the chaos that they are perceiving.It's them.It me.But actually them.
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40:16Bonjour, and can I please get a hot buttered croissant? Something like that. But in Francie, right?because I don't want to be rude. I don't want to be one of those Americans who expects to speak English all the time. I want to get to know the French people on their terms. So you too can have more authentic travel experiences. Start learning a new language today with Babel. And right now, strict scrutiny listeners can get up to 60% off at babble.com slash strict. That's Babel, B-A-B-B-B-B-B-B-E-L-com slash strict for up to 60% off. Rules and restrictions may apply.On Wednesday, the court heard oral argument in a case called Salazar versus Paramount Global.This case is a statutory interpretation case, and the question here is whether the term consumer, as used in the 1988 Video Privacy Protection Act, VEPA, applies only to subscribers of audiovisual goods or services, or whether it applies broadly to anyone who subscribes to any service that a media company might provide, such as, for.for example, a free online sports newsletter. The VEPA was born in the ashes of Robert Bork'sfailed Supreme Court nomination. And if you haven't read Alex Wagner's book, The Steel, get on that.She talks all about the borking of Robert Bork, and it's fantastic. But as part of Bork'sconfirmation process, journalist Michael Dolan obtained and published a list of videos that Bork
41:52had rented from his local video store. And I'm sure Dolan probably thought maybe there'd besomething sketchy in there, but it turned out that Bork had pretty pedestrian, well, notreally pedestrian, actually quite highbrow taste. So there was a lot of whodunits and British films,costume dramas and things of that nature. I was like, that sounds like Melissa Murray's.I know. I think that's exactly what I thought. I'm like, Robert Bork and I probably would havegotten along really well, but for the smoking and the conservatism. Yeah. I know. But yeah,we just had to find places where we, where we could agree.Costume dramas, British custom dramas. I think so.
42:27I genuinely was like, oh, completely.In any event, Dolan published this article detailing Robert Borg's particular penchant for British films,and that kind of disclosure spurred Congress to enact the Video Privacy Protection Act,which bars, quote, videotaped service providers from knowingly disclosing to any person,personally identifiable information concerning any consumer of such provider.Now, in 2022, Michael Salazar subscribed to an email newsletter distributed by something called 247Sports.com.247.You and Amy.
43:07Even I knew that.Even I knew that.247 sports.247 sports.That's why I wasn't in the argument.I just listened to the oral argument.But yes, now that you say that, Melody, save me.Get it.
43:18All sports all the time.Thank you for that additional elaboration.I wasn't sure what 24-7 meant until just now.Hello, fellow sports fans.I'm Kate Shaw.24-7, un-punctuated, sports.com, is, as I'm sure you all know, a website owned by Paramountthat has lots of sports videos on it, in fact, all the time.It's a site on which Salazar watched videos while he was logged into his Facebook account,
43:49and he alleges that Paramount used a code known as a pixel on 247 Sports.com to provide Facebook.with information about the videos that Salazar had watched on the site.He maintains that he never consented to the use of pixel or the sharing of his information with Facebook.And he filed a class action alleging that Paramount's disclosure to Facebook of this video viewing history without his consent violated this statute, the VPA, VIPA.The Tennessee District Court dismissed the case on the ground that Salazar was not a, quote, consumer for purposes of the statute.A consumer, the court held, must be a, quote, subscriber of goods and services and the nature of audiovisual content.because this 247 sports.com newsletter was not audiovisual content.He was not, according to the lower court, a consumer within the meaning of the law.
44:34And a divided panel on the Sixth Circuit agreed.They upheld that ruling Salazar asked the Supreme Court to review it.At oral argument, Joshua Hammock, who represented Salazar, argued that Congress had explicitly placed audiovisual limitations inside the definitions of videotaped service provider and personally identifiable information.but didn't so restrict the term consumer to audiovisual products under this plain text view because Salazar subscribed to the 24-7 sports newsletter owned by Paramount Global.He qualifies as a protected consumer when watching videos on the site that are tracked and shared with meta slash Facebook without his consent.Former Solicester General and noted NYU booster, Paul Clement took the podium for Paramount Global.You're never ever letting this go.Nope.
45:21A Virgo.I hold a grudge like a microphone.I feel like I'm an honorary Virgo.You are, correct.You've got big Virgo energy.You might be on the cusp, like a rising sign.In any event, Clement urged the court to read the statute more narrowly.As he maintained, Congress designed the VEPA to protect video rental and viewing privacy,
45:42not to turn every general digital newsletter subscriber, online store customer,or user of an unrelated corporate service into a protected consumer under the law.law just because the company happened to host online videos. At argument, the justices for theirpart struggled with how to reconcile the VEPA's origins in VHS cassettes and brick-and-mortar videostores, and I will just note, Blockbuster video was name-checked repeatedly, with this brave newworld of streaming services. In fact, Justice Thomas, who, we are told, really knew his way arounda brick-and-mortar video store back in the day,actually asked the lawyers on both sides
46:23whether a media behemoth like Paramountand its subsidiary 24-7 sportswere actually videotape service providersfor purposes of the law.I do love that we call him out for watching.Yeah, for sure.Shout out to Lillian.Yeah.
46:41What was the, what's the doc?For our listeners who...Long Dong Silver.No, no.No.No.No.Not the porn documentary.
46:53That, in fact, is a title that should probably stay in the episode again.Melody, you decide.No, but there was a film that his ex-girlfriend, Lillian, who's amazing, appeared in on PBS.That, anyway, hang on, I actually want to find it.Okay, yeah, so just briefly, if you are kind of newer to the show, in 2023, PBS put out a really fantastic documentary called Clarence and Ginny Thomas, politics, power, and the Supreme Court.Lillian McEwen is an ex-girlfriend of Thomas's, and let's just say you'll learn a lot about his youthful days if you, you know, fire up your whatever.How are you going to watch a PBS doc these days?Highly recommend it.
47:32Stream it?But where?On your computer?I know, but like does PBS have an app?I don't know.I don't know.Yes, PBS has an app.Okay.
47:39Girl, what?Justice from 4-7 PBS.Girl.Well, stream it wherever you stream things.Keith's like, chisel it into your mortal.Go to Blockbuster and pick up a copy of Power and Pollardings at the Supreme Court.It's really good.See if Netflix will send you a DVD of it.
48:02Exactly.What were those red dot things you'd send at the grocery store?I do.I do.Remember those.Anyway.Okay, so back to the argument.Coach Kavanaugh,
48:11Coach K, seemed to embrace Paramount's argument that allowing Salazar's suit to proceed would open the floodgates to a widerange of consumer suits against any company that streams videos on their website. He is concerned. Hewants to protect the ability of sports viewing websites to, you know, broadly share their contentwithout necessarily opening themselves up to ruinous liability. Kagan zeroed it on the ideathat providers could avoid all of this by simply seeking the consent from those consumersbefore disclosing any customer information to third parties. Or they could maybe just stopselling their customers information. Imagine that. Wild suggestion. So let's play that clip here.Well, this statutory language, you know, is relatively clear.
48:52And you might have been charged with having read it.And going forward, you have two very simple solutions.One is to get consent, easy enough.People do it every day.And the other is to stop selling people's private information.Take your pick.Shorter Elena Gagan, reading, fundamental.But really.
49:12Consent also fundamental.Exactly, right?Like ask or don't do it.So consent was her frame for the case.Brett Kavanaugh was open to this idea, but he did have a question, which we will hear here.Can you explain exactly how the consent would work in your opinion?He really does make it too easy for us.Brett Kavanaugh has some questions about how the whole consent thing works.
49:43Just we'll leave that with a period.So, Brett Kavanaugh had another revealing moment during this oral argument that we will play here.I think the other side's kind of big picture argument is that we are a textualist court, but usually not a literalist court, and that we have a lot of principles and doctrines, major questions, elephants and mouse holes, context, common sense.You see those terms sprinkled through a lot of our cases, including in this general.field and that we should be thinking about that so that we don't read this statute for allof its worth when the Congress in the 1980s wasn't thinking about data sharing for targetedadvertising.So that's just a big picture question for you to tackle.
50:33I loved this because this was very OMG, he admitted.Like he's just saying, look, whole major questions, elephants and mouse holes thing.it really just comes down to, like, do we think the world should work this way?Do we think these guys?Exactly.Exactly.What are the vibes?Not your vibes.
50:55Exactly.Right.What are these video service providers?And I kind of think you shouldn't.So that's what I'm going with.And it wasn't just him that seemed to embrace the, I'm not a textualist.I am a order the world as I see fittest.So here is Chief Justice Roberts.
51:16Well, our former colleague, Justice Breyer, confronted with questions like this,you know, his favorite hypothetical in that area anyway was a sign in a park that says,you know, no pets in the park.And the question was, did that mean that the person carrying his pet snail in his pocketwas subject to prosecution?I mean, don't we have to look at the general purpose that's involved here beforedetermining that the statute reaches as far as you would have it.Again, sir, like, you were never into Steve Breyer's approach to statutory interpretation.
51:52So the idea that you would be right out of the gate at this oral argument invoking Steve Breyer, like, what are you doing?What are you thinking?It's very odd.They've just decided, like, we're not, again, when you have six, you don't have to pretend that you're textualist anymore.You can just basically say, like, I don't really feel like adhering to text this time.And so I won't.Yeah.So in other revealed preferences, Justice Barrett revealed herself to be an aficionado of online shoe shopping. Nordstrom is apparently her go-to.
52:23I mean, honestly, I found this so relatable, certainly more relatable than pilfering Ambien from your husband's jar of Ambien.Yes, that does check out.But I hope she's not buying those Riva Tori Birch flats that every woman in D.C. was wearing for like 10 years.Well, that's not what she's using.Again, depending on how this case goes, maybe someone could find out.But Barrett, in addition to revealing her pension for online shoe shopping,also made clear that the justices are never beating the allegations,that they do just not understand technology.
53:00So take a listen.And I want you to give me the pitch on the facts of your complaint as you allege them,why you have standing.And specifically here, you know, you can have disputes about,as the 11th Circuit has taken the position, that you need to have some publicity telling oneprivate individual isn't enough. But here, so far as I can tell, no person got this information,whatever this pixel thing is, right? So why do you have...No person other than meta, like the largest social media company in the world, but sure.
53:32You know, as you can hear in her question, she just injected standing into the oral argument,basically being like, well, how about this standing thing? And this was another revealingmoment for me because it felt very much like the Suncor oral argument where the justices were just thrashing about for any old rationale that would allow them to rule for the party that they wanted to rule for. And since the whole textualism thing wasn't working out so well, right? For Paramount side, it was like, well, how about standing? Right. Like, let's take that baby up for a spin. Can I just say since I wasn't on the Suncor discussion, you guys did a great one with Kirche. I just, it was so wild to see them spitball. How about this theory? How about that? In real time. Building the plane. Building the idea.while we're flying it.They're like, do you know we can hear you guys?It was.Okay, hear me out, guys.What about standing?
54:19It was shocking.But yeah, I feel like we're maybe going to get a lot of that because they have only justbegun this term and already they're off to the races.Right.This is the first sitting and they didn't even do the reading for this one, right?Like how bad is this going to get in April?Possibly real bad.So although, you know, Salazar insists all of this came about because he was watching sports,
54:38you know, the justices were, and I think rightful.so preoccupied with other kinds of videos that one might watch and that, you know, might be disclosable.For those of you who aren't picking up what I'm putting down, yes, this case is about porn.So here, right, is Elena Kagan attempting to convey this.Couldn't this case kind of be the paradigmatic case?It's like you can like watch lots of embarrassing sports videos that you don't want anybody else to know about.A judge could, and then they watch a lot of videos.And let's say a judge does this.
55:17And then it turns out that the judge watches some pretty funky sports videos, you know,like a lot of women wrestling or something.And that's embarrassing.That's embarrassing in exactly the way Congress thought we're passing the statuteto prevent disclosure of that information.Judge named Clarence or Brett.She could not keep it together during this question.And I loved it.
55:48She was wild.She was wild in this.She really was.Yeah.Do you think she, like, looked sidewaysat one of the boys on a bench?No, I think she's judiciously avoids in, like, grinders.Exactly, exactly.
55:59Like, I'm not talking about you, Brett.A judge might.You're like, maybe this judge.A judge named Pret.Rett.Rett.Rer and just spitballing.I also, yeah, she was just like totally on fire in this argument.
56:17I also loved learning, which I feel like I really knew and she just continually confirms it.But unlike her Luddite colleagues, Alina Kagan is extremely online.And if you didn't know that before this argument, you definitely know it now.I see you, girl.Yep.It's just one of those cookies boxes that comes up, right?Wouldn't you do it the exact same way?I mean, we do that a thousand times a day.
56:40Okay, so yeah.So just.Yeah.Yes.And I mean, just, you know, just, nope, minimize, click that X out, out, out, out.She is just on these internets all day long.And I love that.Yes.
56:55She's like talking about cookie boxes and Amy Carnegie here.It's like, is it Girl Scouts?Do I need to buy thinnets?Totally.In addition to hearing argument, on Tuesday the court added three new cases to the October term 2026 docket.One of the cases is an immigration case, Blanche v. Azurumba, which is brought by the Trump administration.The case asks the court to clarify what type of support an immigrant must be shown to have provided to a terrorist organization in order to be removable and ineligible for various immigration benefits under a federal immigration law that states,that an individual who affords material support to such a terrorist group is ineligible to be admitted to the United States.
57:40The second case is Barry that asked the justices to consider whether a certificate of appealability,a prerequisite for appealing a decision that denies a request for post-conviction relief may be granted to a prisoner whose claim is foreclosed by circuit precedent,but would be allowed to proceed in a different circuit.And last but certainly not least, we got a grant in United States Doge Service versusUnited States District Court for the District of Columbia.Supreme Court going big balls.They are.Yep, it's big balls turn at Supreme Court.
58:11Listeners, you will probably remember.Please let a dick be the one to argue this.They need to bring somebody in.Too quick.Too soon.Federal government right is all over this one.Yeah.Sadly.
58:24Yeah, I think we do have actual adversity here.But if we don't, Melissa has a nominee for you to keep in mind,justices for, I guess this would be Robert since it's out of D.C.for amicus.But just to refresh everybody's recollections.Right. Who will represent Big Ball's interest in this case?No one. We should appoint ADIC.Okay. But in terms of what is at issue in this case, back in the early days of Trump 2.0,
58:48the president and his first vice president, Elon Musk, created Doge, the United States Department of Government Efficiency.Doge was charged with, quote, modernizing federal technology and software to maximize governmentefficiency and productivity. That was always bullshit, but that was ostensibly the goal.So a government watchdog group, these citizens for responsibility and ethics in Washington,filed a FOIA request, a Freedom of Information Act request for, among other things,communications between the alleged supposed DOGE administrator Amy Gleason and Doge staff, as well asfinancial disclosures, submitted by Doge personnel. When there was no response to those requests,crew that as citizens for responsibility and ethics in Washington went to federal court asking Doge to disclose documents that it said it wanted before Congress passed a bill to fund the federal government.
59:35Crew wanted to expedite the discovery process to determine whether Doge is a federal agency that must comply with FOIA.As part of the request to expedite the discovery, crew asked for all kinds of information, including lists of current and former Doge employees, a list of government contracts and grants that Doge wanted to cancel, a list of employees and positions that Doge wanted terminated.and they also asked to depose Gleason.U.S. District Judge Christopher Cooper granted most of Cruz's discovery requests,and the U.S. Court of Appeals for the District of Columbia Circuit rejected Doge's plea to pause that order.So, predictably, Solicitor General John Sauer went crying to Danny Scaldives.And the court, predictably, dried John's fat baby tears, dressed him in a fresh new onesie,and in June issued an unsigned order over the objections of the three.
01:00:24Democratic appointees that sent the dispute back to the D.C. Circuit for a fresh look.Fresh onesie? Fresh look. Specifically, the majority of the court objected to the portions of thedistrict court's discovery order that required the government to disclose the content of Doja'srecommendations within the executive branch, as well as whether those recommendations werefollowed. According to the court, not only were these directives too broad, but they also raisedseparation of powers concerns. The court put Cooper's discovery orders onhold while this litigation continued below. So the case went back down to the lower court.Crew modified its discovery request, really narrowed them, and the lower court granted those
01:01:03requests. And Doge, even with a narrowed request, took that quite personally and sourheadedback to Scotis, arguing among other things, that under a 2004 decision, Cheney v. U.S. DistrictCourt, when considering requests for information directed at senior executive branch officials,special considerations should control when the executive branch's interest in maintaining theautonomy of its office and safeguarding the confidentiality of its communications are implicated.So...What could go wrong here?I mean, there were all these big constitutional questions about, you know, Musk's role under the
01:01:35appointments clause.You know, those are implicated for sure, like what the constitutional status and sort of whatthe separation of powers means for it in this kind of document request case.But it's sort of parallel to some of those other constitutional questions.But I guess I'm glad in some ways.I mean, I'm sure nothing good will come with this. And I actually think that in some ways they have been gunning for FOIA is a meaningful transparency and oversight mechanism for the public to actually find out what is going on inside government. And they've already, they being the Trump administration, have asserted obviously all kinds of absurdly broad privileges from disclosure, whether to Congress or to individual FOIA plaintiffs. But it feels like this could be another opportunity to really limit FOIA. But I guess I'm just kind of glad that crew is fighting this and that, you know, do.is not, they, you know, disbanded, and I think it was a wild failure in terms of its own statedobjectives. And in some ways, it's sort of good for the public to be reminded of, like,
01:02:29the chaos and carnage that Doge was responsible for in the early days of the administration.So I guess I'm not from a just kind of public information perspective, upset that this isstill on the radar, but for sure, Supreme Court will make a hash of the substance.They're going to unitary executive so hard over this one, right?When it's not a real department, they're basically like private.individuals. And that unitary executive is going to be so unitary. It's just going to allow the presidentto unite whoever he wants under his great big executive privilege umbrella. 100%. So that is it fornews and recaps. But do please stay tuned for my conversation with Alice Olstein, journalist and the author
01:03:12of the great new book, Side Effects, How Abortion Bans Impact Everyone's Health. This episode ofStricts Rudney is brought to you byAlloy Health, let's be honest, we've all heard that aging can come with some unwelcome changes.Sleep disruption, hot flashes, brain fog, weight gain, and decreased libido can hit you hard.Menopause is inevitable, folks, but guess what? It's also treatable. Almost half of women go three-plus years, though,before seeking relief from menopausal or paramedopausal symptoms. Ladies, what are we doing? Most don't even know where to go for a solution.That's why we're here.That is where Alloy comes in.
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01:05:47We're in the final stretch of the midterms,and the political map has only gotten more competitivewith new states and districts emerging as potential flips.So we thought it was time to get back out on the roadand take a closer look at what's actually happening on the ground.I'm Aaron Haynes, journalist and expert on all things Southern politics.And I'm Jennifer Palmary, former White House Communications Director.Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.
01:06:13For this segment, I'm delighted to be here with EllisMiranda Olstein. Alice is a journalist at Politico whose work focuses on reproductive justice and the law.And she's a journalist behind several important stories about the Trump administration's potential efforts to conceal their efforts to restrict access to abortion, at least until after the midterms.She's also the author of the terrific new book, Side Effects, How Abortion Bans Impact Everyone's Health, which is officially out next week.The book is about Dobbs and abortion restrictions and how that has transformed the practice of medicine.Welcome to the show, Alice.Thank you so much. Before we get to the book, which is going to be our primary focus, of course,can you just remind our listeners about some of your reporting about what might be happening in the Trump administration,
01:07:03why we have reason to think there might be some things happening that they're not being totally transparent about with respect to potential efforts to restrict abortion?Yeah. So we don't know what, if anything, is going to happen. There has been reporting that nothing will happen before the midterms,but I think that extrapolating from that, that something will definitely happen after the midterms is a bit of a leap.We just don't know at this point.That said, there are processes underway in several different federal agencies, as well as several ongoing lawsuits in various courts that could force the administration's hand.So most of this has all been focused on the abortion pill Miffipristone, which is one of two pills that are used together.in most abortions that take place.And so, you know, there is an effort at the FDA to review the drug safety and perhaps propose
01:07:59different regulations around who can access it and how and where and why.And so all of that could unfold next year.There are also efforts and some figures at the Justice Department who are interested inrevisiting some of the laws around the mailing of abortion pills, reviving.I'm sure your listeners have heard lots about the Comstock Act, but there are some who are advocating for reviving this more than 150-year-old restriction and applying it in our Brave New World.There are also ongoing efforts at the EPA to look into the alleged impact of abortion pills on the environment.and my colleagues and I broke that story.And so all of this could lead to something.
01:08:53It could lead to nothing.You know, I think that the political pressures around this are not going to disappear after the midterms.You know, people are going to be focused on 2028.So it's not like the administration can have complete consequence-free slate to take action on this front after the midterms.there are still going to be, you know, a lot of different political calculus involved.Yeah. And of course, all of these possibilities are really only a possibility because of the Supreme Court's decision in Dobbs, which ended constitutional protection for abortion. So maybe we can turn to that decision now and what your book uncovers about its consequences.So the majority opinion suggested that overturning Roe would just be a matter of returning abortion to the democratic process. But your book tells a story about how the decision.fundamentally transform the practice of medicine more generally.
01:09:49Could you talk a little bit about how Dobbs has changed health care in this country more generally?Sure. So, you know, I think by now a lot of people have heard the tragic stories of women who have died in Texas and Georgia and someother states after being denied medically necessary abortions when they were experiencing an emergency whilepregnant. But what I found traveling around the country and doing this research is that that is really only thefirst concentric circle of this bigger impact on medicine. And it just goes out and out and out from thereso much that it really impacts everyone no matter where they live, their gender, their age,their health status. But, you know, of course, some people are impacted more than others,you know, particularly women of reproductive age who are living in states with these
01:10:37legal restrictions. And then, you know, within that group, if you're poor, if you're a teenager,you have these additional challenges. But look, this is impacting how doctors are trained and educated, wheredoctors choose to live, what medications doctors can prescribe, what information they can even tell theirpatients, and what kind of research they can do to come up with future cures for conditions anddiseases that, you know, people are suffering from now. Yeah. So I think we're going to talk more abouteach of those categories. But since you mentioned that this is changing where doctors live and howthey can practice. I just want to remind our listeners about the political ads that are running inIdaho right now that are focused on the loss of OBGYNs and doctors and reproductive health care
01:11:23more broadly that that is the focus of the political messaging about the state's vote about,you know, protections for abortion. But since you began your answer with talking about, you know,women who have lost their lives because of these abortion bans, you know, the right-wingjustices as well as anti-abortion politicians repeatedly say that abortion bans are perfectlycompatible with protecting women's lives because at least a lot of the laws contain medicalexceptions. You know, you tell some horrifying stories about what actually happens when doctorstry to invoke those exceptions. So can you walk us through maybe one of those stories or howthis actually works on the ground? Absolutely. So, you know, what I kept hearing over and over from doctors
01:12:09and patients is that it's extremely challenging, potentially impossible to write exceptions languagein a way that actually protects people in real world situations. Because if the language is too vague,doctors don't know, can I act? Does this qualify? I'm not sure. Do I have to check with lawyers?Will checking with lawyers delay the care to, you know, a dangerous extent? But if the law is too specific,you know, listing specific, you know, you.you know, medical conditions that would qualify. What if something's not on that list? What if somethinghappens that they didn't even think of or haven't even discovered yet? And so there's there's just thistough sort of balancing act they're trying to strike. And so I think, you know, one of the people I
01:12:56interviewed for the book really illustrates this. Her name is Avery Davis Bell. She lives in Georgia. And shenearly died in the fall of 2024 because her doctors were so afraid of violating the state's abortion banthat they waited until she was in really dire condition to terminate her pregnancy, even though by that point it was non-viable.Her water had broken, you know, dangerously early.And so, you know, she had this very scary situation where she was in and out of the hospital for weeks of her pregnancy.And finally, she was passing blood clots that were so big that she actually brought them to the hospital in a Tupperware to prove that something was wrong.enough that they should really take her seriously. They found that she was anemic from all thebleeding. And like I said, her water had broken before her pregnancy could reach viability. And so,
01:13:51you know, not performing an abortion at that point put her at risk of infection, but still thedoctors waited and waited and waited more than 20 hours because they were saying, look,you're not actively dying yet. So our choices are either. We present your case to the hospital'slegal board and let them determine whether or not you qualify for this narrow exceptions language,or we wait till you, your condition deteriorates even further, then we could bypass the committee.So finally, after all of this waiting, she qualified for a blood transfusion, which was, you know,a clear enough criteria that her life was in danger that they went ahead with this. But, you know,that delay made the abortion itself more risky. It made her recovery longer. She had to get iron infusions
01:14:36for months afterwards. She could barely walk. You know, she couldn't play with her toddler. And I think,you know, because the language in Georgia's ban, which is similar to the ones in a lot of states,it says that doctors can only do an abortion when there's a risk of death or, quote,substantial and irreversible physical impairment of a major bodily function. So doctors and legalexperts kept telling me, okay, what's substantial? What's impairment? What, what,What kind of bodily functions are considered major? These are not medical terms. You know, these don't really map on to what doctors encounter in real life. And that's where the challenge comes in. And I think that story and others like it are one of the reasons why we talk about these abortion bans is so dehumanizing, right? They are literally forcing women to beg for their lives coming into the hospital with a container full of blood clots. They are passing. And to have to say, Iclose enough to death to warrant care is just an atrocity, right? That's not the actual provision ofmedical care as we expect it. But maybe moving out of these concentric circles, you know,
01:15:50another striking aspect of your book's research is how many people who never wanted anabortion or who aren't even capable of becoming pregnant or suffering because of abortion bans.Can you give us an example of how the decision affects people or someone who might never have imagined abortion restrictions would affect them?Yeah, so a couple examples.One is a woman who is living in Northern California.And, you know, California is thought of as this, you know, abortion haven with very protective laws.But when she went to the hospital and she had an emergency with her pregnancy, because it was a Catholic hospital, she was turned away and sent with.some towels and a bucket to drive to the next town over to reach a hospital that would
01:16:39give her the medically necessary abortion. And so there's an ongoing lawsuit about that in California.And so, you know, I want to stress that this doesn't only impact people in states where there'sa ban on the books. It also has these spillover effects on. Note to Maine voters in Maine who arehearing Susan Collins statements about how Maine women aren't affected. But yes. Right. Exactly. Everyone'saffected. And,And, you know, another example is going back to the fertility care issue. You know, I talked to a woman in Alabama who in the middle of an IVF cycle, so she's getting these hormone injections. You know, there's a narrow window where you can, you know, have your embryos implanted. And there was a ruling. I'm sure your listeners remember in that state that cut off all access to IVF temporarily. But even that temporary delay had medical consequences for her, you know, being on those hormones for so long. Andmissing that window really threatened her health and her eventual pregnancy and birth. And so she was saying,you know, I really, when the ban went into place in my state, you know, I mainly thought about other people I knew.
01:17:48I didn't think about it affecting me. Another thing that jumps out of your reporting is, as you were saying,abortion bans can actually make it harder for people to have children in the future. But also how abortion restrictions are interfering with recent.into treatments for what people might think of as completely unrelated conditions like cancer, right?Serious diseases. You describe a researcher at Indiana University who abandoned a clinical trial,testing whether Mifipristone could help prevent bus cancer, you know, in women with a particularmutation. So how does banning abortion end up preventing scientists from pursuing potentiallylife-saving medical breakthroughs? Yeah. So I think people should think of the threats to research in sort oftwo categories. The first is research about the potential other uses of Miphyprisone. It has
01:18:39really promising implications for a lot of different things, cancer, uterine fibroids, all kinds ofstuff. And there is research going on in other countries that don't have the same restrictionswe have that is making a lot of progress. And so research here in the United States, some of it,like that example you mentioned has been abandoned because they're just so afraid about losingaccess partway through a clinical trial to the medication they're testing or, you know,potentially being accused of violating a state law. But also, even the ones that haven't beencompletely cut off or abandoned, there's been delays, there's been hurdles. And so people who couldbe benefiting from this medication, and this includes men, this includes people who are too old to
01:19:29get pregnant. These are people who are too sick to get pregnant. So there's really no risk of anaccidental or intentional abortion here. They are not having the access to this medication because ofthese hurdles and delays. Maybe just to give our listeners an example of that, you know, before you getinto the second bucket, just so they can have something in mind. You know, this isn't from Mithipristone orthe context of abortion. But, you know, the drugs that people right now are using like Ozenpa orMujaro, right? Like, those.came about because scientists were studying the Gila monster, right? So, like, you don't knowwhat the thing, right, that you are studying or focused on could end up being used for. And of course,
01:20:10now the drugs, right, are used to treat certain diabetic conditions and blood sugars,but there's also research into whether they might be able to treat addictive behaviors, right?Or certain inflammatory diseases. And so just to give listeners example, like, it seems like thisis fairly common, right? It's just how medical research works. Sorry, continue. You were going to talkabout the second bucket. No, absolutely. And so, you know, in the first bucket, I talked to a researcherwho has discovered that Mipipristone massively helped older male veterans of Operation Desert Storm.It relieved their symptoms in a way that nothing else did. But because of the hurdles,this researcher has run into post-Dobs in obtaining the medication, in, you know, housing the
01:20:54clinical trial, in getting federal funding. You know, those veterans,don't have access to a medication that could really help them. And again, these are older men.This is not, these are not people who could have an abortion, you know, even accidentally.So in terms of the second bucket, you know, research that covers women of reproductive age in any capacity,no matter what they're researching, is being threatened by this. And, you know, what a bunch of bioethicists and scientists really explained to.to me is that the ethical guidelines that basically all research in the United States follow wasdrafted in 1974, crucially, one year after Roe. And so our entire framework about medical ethicshas been put forward in a context of people could have access to a safe legal abortion if they
01:21:51needed it. And so if you're thinking about it, women of reproductive age are already so underrepresentedin clinical research right now. You know, there's tons of drugs where we just don't know if they workon women because they've only been tested on men. And the little progress we've made on that is nowat risk of backsliding, these researchers told me, because, you know, how can women feel comfortableenrolling in a clinical trial if they're taking a drug, a new experimental drug that could causea birth defect? They become pregnant during the clinical trial accidentally. If they don't haveaccess to abortion, how can they feel comfortable participating in the first place?Yeah. So in addition to affecting research into future medications, you know, another thing you
01:22:35document in the book is that abortion bans actually affect access to existing medication,prescription medications. So people who might not think, right, abortion bans will affect myhealth care. You actually document patients with conditions varied from rheumatoid arthritis to lupusto Crohn's disease. They're now having trouble gettingaccess to prescription medication. So how is that happening? Yeah. And when I started hearing about thisand started looking into it, I found it was so much more widespread than I'd realized. So this is happeningin states with bans. It's happening in states with abortion protections. It's happening because sometimesthe doctor refuses to prescribe something. Sometimes the doctor prescribes it, but the pharmacist refuses
01:23:18to fill that prescription. Sometimes all of that happens, but then the insurer gets scared and is afraid tocover it. And it's happening for drugs that have the potential to be an abortifacient. And it's alsohappening for drugs that have the potential to cause birth defects if somebody becomes pregnant whiletaking it. And I found that these medication denials were happening, like you said, to people whoaren't even capable of getting pregnant. One woman had had a hysterectomy. Several were prepubescent children.Some, you know, had proof that they were taking contraception. And this still happened. And this isbecause, you know, people in the medical system are so scared of these threats of state enforcementof these bans and being accused of sort of aiding and abetting an abortion that, you know,
01:24:06if there was any question about what the drug could do or who was taking it and why they justthought, okay, I'm just going to stay away from this. And then, of course, the patients suffer in theprocess. Yeah. So that is unfortunately all we have time for listeners. But hopefully this gives youa sense of the importance and scope of the book, which again is side effects, how abortion bans impact everyone's health. You can get the book from our friends at bookshop.org and the book is officially out next week. Alice, thank you so much for writing this. It really provides a new angle on the idea that abortion rights are never just about abortion rights. They are so interconnected with so much more. So thank you for writing the book. Thank you for taking the time to join us. And thank you for all of your wonderful.reporting. Thank you so much. It was great to join. Thanks again to Alice for joining us. Now on toour favorite things. So I did a lot of reading. So here are some of my wrecks. Mad Mabel, I finally read bySally Hepworth. I loved it. I also finally let myself read book lovers by Emily Henry. I have thisreal sickness where I will save a book by an author I love when I know I'm going to love it because I'm
01:25:20always so afraid that, like, I'll finish it and that I won't have more to read by that author,and it's very mentally difficult for me, but I finally let myself do it. And I loved it,as everyone said I would. Yeah. So I also really enjoyed Kate Mann on the Call Your Daddy podcast,trying to bring, right, like, understandings of misogyny to the masses, truly doing God'swork. Kate Mann is just like, I think probably one of my favorite academics just in the entire world.her book Life-Changing.I also really enjoyed Alice Olstein'simportant work, side effects,
01:25:53which she just heard me talk about.I also read The Duke by Anna Cohen,which I really liked.And I'm currently reading about a thirdthe way through and loving it,The Earl Takes All by Lorraine Heath.Are these all Regency bodice rippers?No, Mad Mabel isn't.
01:26:10No, no, no, I know that.The Duke and the Earl takes all.The Duke and Earl takes all is,although the Duke definitely haslike a unique kind of twist to it, I would say.Do you read these books in the last week, Leah?Yeah.So what's been going on is in order to help my poor puppy, Stevie Nix, try to deal with her
01:26:28respiratory issues, I have to lock us in a bathroom running a hot steam shower for an extendedperiod of time and then nebulize her after.And so I have all of this time.And like, I can't really work on my laptop because the steam and humidity will destroy thelaptop.And so I just read.And that has been one upside of this.And I love it.
01:26:49That's amazing.Yeah.You know, I pulled this clip because I wanted to just spring it on both of you without warning.And I really do think it is truly in keeping with a, let's say, a theme slash running thing of this episode.So can we play that?And I treat you all to this one real time.And if you look at that enough on a screen, it's like if you look at pornography enough or beastiality video,all day. After a while, like, it's kind of an attractive horse. I get it. I'm not into it personally,
01:27:21but it's not crazy. Yes, that's Tucker Carlson saying. Leah, we need tick trigger warningsbefore we do. Our listeners do. He just suggested he might be a little beastiality curious.That again, right? Like, OMG, he admitted it. I mean, I'm just going to say, I don't agree with thesubstance. I do agree with the logic, because when I worked at the gap in high school,there would be things that I saw when it first came in the storeand I'd be like, that is hideous.I would never wear it.But after six weeks of being around it, it's like, you know what?
01:27:53This is very different, Melissa.Is it?Yes.You're talking about the gap.I mean, some of the stuff was like genuinely hideous.Not all of it.But I mean, like, by the, I'm just saying,I think his point is like you can over time become annoyed to anything.
01:28:11I think like that's how we've been with.The fish asks, what's water?Exactly.Yeah.Yeah.Well, if there's some inadvertent wisdom, I suppose there.Well, thanks, kind of, Leah, I guess, for that.With no context, the Beast in Me edition.
01:28:28I'm not going to let you get me, Leah.I'm nonplussed.Oh, come on, right?I got you with that billpulte clip.You did get me with that bill.That was, oh, wow, you sure did get me with that.That's, yeah, wow.I still think about that sometimes.
01:28:42Like, I was just not prepared for that at all, at all.Kate, I hope I didn't give you nightmares.You did. I wasn't even on the episode, but listening, I was like walking down the sidewalk and nearly fell in traffic.I was so horrified. Yeah, you got to put a trigger warning on that. I think you did. Sorry.Okay, my favorite things this week, I started reading The Correspondent by Virginia Evans, and it is so, so delightful.Everyone told me that I would really love it because I like epistolary novels, but I've been putting it off much like you, Leah, for reasons. I don't know.But I finally turned to it this week, and I really just love it.Like the voice, all of it is just remarkable.
01:29:18I don't generally like epistolary novels, but I did really like this one.And I liked teaching my children that word when I read.Epistular, yeah.Yeah, they didn't know before.So there we did.The other favorite thing that happened, it actually happened last week right after we taped our last episode.I got the opportunity to walk the red carpet at the New York Film Festival at the premiere of Ava DeVernay's,14th and I am featured in the film alongside Friend of the Pod, Deborah Archer, Friend of the Pod,
01:29:48Cheryl Lynn Eiffel and some other really just fantastic illuminaries. Please go and see this movie.It is so fantastic. I'm not even saying that because I'm a part of it. Like I literally,when I saw the whole thing put together, I was like, this is actually a masterpiece andSherilyn is like the narrator, the spine of the whole thing. It's absolutely fantastic. So it's goingto be shown in theaters in November briefly, and then it will begin streaming on Netflix inDecember. However you decide to do it, brick or mortar or streaming, take yourself to go and see it.It's absolutely fantastic. I also went to the premiere of Season 4 of The Diplomat on Monday,and I love The Diplomat. Deborah Kahn is an absolute genius, and it was so much fun to
01:30:35watch the season four premiere with all of these people in a huge theater. It's just somehowhow funnier when you're in a big group of people, like things that might not be funny to me at home were just hilarious and fantastic. I can't wait to binge it. I've already started binging parts of season four, but I have to wait for my husband to catch up and he better get on it. I just came back from Minneapolis and I wanted to shout out some stricties in the wild.Steph, Rory, Grace, Brock, Dahlia, Maggie, James, Sam Logan, Emily, Bobby, and Rose. A special shout out to the great ACS student and lawyer teams in Minneapolis.and Black Garnet Books for sponsoring a book signing for me. And I also want to shout out Sarah and Asia. Two stricties I met in the wild at the 14th premiere. Great to see you all.I really am so excited about the 14th. I also, as soon as I saw your picture, it was like pulled up Netflix, but it's not until December that we can stream it, but I will definitely be doing that. Or maybe we should all go see it in person before.We should see it in person. Yeah, maybe let's do that. I mean, I know you already have. And Lee and I cannot offer the same kind of red carpet experience that you have already had. But Leah,maybe come to town. We could just like roll out some like red paper just walk on it. Yeah, stand on it. That sounds great. Let's do it. Sounds perfect. Okay, I had far less glamorous or impressive a list of activities and books read this week. But I do want to just like scream from the rooftops that everybody should read Michael Lewis's new book, Blockers. So Lewis is like, you know, one of the most incredible nonfiction writers alive. You know, he's written now a bunch of books about these unsung heroes in the federal government. Like he is single-handedly like the anti-duty.Doge in many ways.
01:32:12But so he wrote this great book, The Fifth Risk, before the second Trump administration.He edited a collection of essays and wrote a couple of them called Who is Government, just these incrediblybeautiful, powerful portraits of civil servants doing the Lord's work, even with this incrediblehostility that people like Donald Trump and Elon Musk are trying to foment against them.And this is his latest offering, again, called blockers, largely about Doge and its campaignof destruction.So it feels fitting to recommend this book this week when the court has sort of thrust Doge back intothe news and the spotlight, but really, truly, if there's an audio book that is on Lewis's
01:32:45own platform and then there's an actual physical book, so I would either way highly recommend it.And I, like Melissa, am also just fresh off an airplane, which is why I think the hijinks levelis so high on this episode.But I was actually at William and Mary to do a faculty workshop and got to meet with a bunchof great students from the Institute for Bill of Rights Law and the Election Law Societyto talk SCOTUS and the midterms.And it was really awesome to meet and talk to you.and thanks to my great faculty escorts through all of that,
01:33:12Alior Larson and Rebecca Green at William and Mary.Okay, little housekeeping before we go.Long play, Crooked's miniseries about what it will take to win in the South is back on the air.As affordability issues erode Trump's coalition and new southern states have emerged as competitive.Like this has been wild to watch in the last few days and weeks.The political stakes are higher than ever.So Jennifer Palmieri from Showtime's The Circus and award-winning journalist Aaron Haynes are backon the road to take a closer look at what is actually happening on the ground in the South.
01:33:42From the GOP, pulling back in battleground districts to the unexpected consequences of gerrymandering,there is a lot to learn about the American South.So check it out before the midterms.Subscribe to Longplay wherever you get your podcasts.Struck scrutiny is a Cricket Media production.Our show is produced by Melody Raoul and Farah Safari.Music is by Eddie Cooper.Our team includes Alona McCovsky, Matt DeGroat, Men Hethcote, Adam Lippert, and Eric
01:34:11shoot. Our production staff is proudly unionized with the Writers Guild of America East.Long play, our docu series exploring the people and forces shaping the South is back.Newsflash, the South is the new political epicenter of the country. Democrats are way on theirheels in this region, but Republicans are going through their own reckoning in the South too.We're in the final stretch of the midterms, and the political map has only gotten more competitivewith new states and districts emerging as potential flips. So we thought it was time to get back out on the road,and take a closer look at what's actually happening on the ground.I'm Aaron Haynes, journalist and expert on all things Southern politics.
01:35:00And I'm Jennifer Palmary, former White House Communications Director.Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.
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