Strict Scrutiny - Stop Trying To Make Democracy Happen

Episode Date: April 20, 2020

On this special episode, prepared for PODAPALOOZA, Leah, Melissa, Jaime, and Kate discuss some COVID-related Court issues. That includes the Court’s upcoming telephonic arguments; its order in the Wisconsin election case; and some other COVID-related cases that might make their way to the Court soon. 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, where your hosts, I'm Melissa Murray. I'm Leah Littman. I'm Jamie Santos.

And I'm Kate Shaw. And this is a very special COVID in the court episode. We have prepared it especially for our Potapalooza, which has been organized by GLOW. And please remember to support our GLOW campaign at glow.fm forward slash strict scrutiny. Also involved in this epic event are Spotify and Stitcher, as well as Wondery, Axios, Morning Brew, and Adande. We've partnered with GiveDirectly, an international nonprofit that's providing cash relief to families who are hardest hit by COVID, and 100% of the proceeds will go to GiveDirectly. So please tune in if you want to hear other episodes this weekend and support this terrific cause. Thank you. And you can sign up for

Potapalooza at www.plza.org. That's plza.org. All right. So let me give you a quick rundown of the show. So we are going to start, as always, with some breaking news. And this breaking news is about the rescheduled cases. We'll then shift into some election law news and specifically the Wisconsin case. We'll talk a little bit about COVID and its impact on abortion provision. And then Kate will bring us some insights on other COVID cases that are in the pipeline. So it's all COVID, all court, all the time. So let's get started with what's happening with the court's sittings for the rest of this term. So as we mentioned before, the court has postponed the March and April sittings. And this past week, it took 10 of the arguments that were supposed to happen in March and April,

and it scheduled them for telephonic arguments the first two weeks in May. And so those cases are pretty varied. They include the faithless electors cases that we've talked about, the presidential subpoena cases, the contraceptive mandate cases. There's a case about the ministerial exception to federal employment laws, a case about whether the federal government can require foreign affiliates of U.S. based groups that receive federal funds to have policies expressly opposing prostitution and sex trafficking. There's a case about a First Amendment challenge to the government debt exception to the Telephone Consumer Protection

Act. There's McGirt v. Oklahoma, which is basically about whether roughly half of Oklahoma is actually an Indian reservation. And there's USPTO versus booking.com, which is about whether you can trademark a generic word plus.com at the end. The court also informed counsel for the cases not on this list that their arguments would be rescheduled for the beginning of next term, which will start in October. So what do you all think about the cases they chose to hear in May? The timing of this is so interesting because the weekend before they announced this, they announced this on April 13th, which is a Monday. The weekend before, there had been a story in the Wall Street Journal by Jess Braven and Brent Kendall about how the

court had basically sort of deferred all of its big cases. And there were a lot of big cases. And they talked a little bit about just the optics because other courts had actually been at work and had managed to figure out how to move to remote operations. And then lo and behold, after that story runs, this happens on Monday. So I don't know if it's a coincidence, but I think maybe the court felt a little bit of the pressure and certainly the optics of the Wisconsin case and their sort of shying away from the pandemic didn't help either. Yeah. I mean, I don't know whether the journal in particular, but I do think this kind of chorus among commentators of support for the court finding some way to resolve some of these cases before, you know, November, December of next fall, maybe had some impact. So in terms of it, they obviously, I think, were correct to schedule telephonic arguments for the president's tax cases, the faithless elector cases. I mean,

those cases, as we've discussed previously, are important to resolve before the November election, or at least I think there's a very strong argument that they are. And so I think it was responsible and correct for the court to schedule those cases. I do find it somewhat puzzling some of the other cases that they scheduled. So there's this case about robocalls, Barr versus political consultants, that wasn't even granted until January. For some reason, that one is being argued telephonically in May. Not sure why it's so pressing to resolve now. And then there are some cases. So there's Carney versus Adams, which is this pretty interesting challenge to a Delaware statute that requires partisan balance on the least there are considerations at work that I just could not discern from the list of cases that they have decided to schedule now versus defer until the fall. Yeah, I was most befuddled by the Booking.com case, which is not at all an urgent case. It's just kind of a trademark issue that didn't seem particularly pressing until I saw the list that came out that listed the order that the arguments would happen. And that case was set for the very first day of telephonic arguments.

And so my running theory is that this is a low-risk case with extremely experienced counsel that could get the bugs out. So Lisa Blatt is representing Booking.com in this case. She's arguing her 40th Supreme Court case. She's completely unflappable. And I think maybe the court thought that she would be a good person to start things off with. But I was disappointed that there are a number of, you know, direct criminal appeals and immigration cases where, you know, people are sitting in prison potentially with the opportunity to get out or with a lot of uncertainty about immigration detention, things like that, that are just going to have to wait another six months. And so I thought it was a little tone deaf to, you know, with a robocall case to hear that,

but not some of the others. How do you all think the arguments will go telephonically? Because, you know, there's a lot of courts, including the Texas Supreme Court, the West Virginia Supreme Court, the Michigan Supreme Court, that are doing this by video conference, you know, by Zoom, which is what we're doing right now as we record. The court has chosen not to do so. I suspect it's because they are, you know, are steadfastly opposed to cameras in the courtroom. So how do you think it's going to go

telephonically? I think it's going to be hard just because you can't see the bench. And I imagine as an advocate, it would be really important as you're making your argument to see how it's going over. You know, just like the nonverbal cues that you get from the person that you're talking to just wouldn't be available. So, you know, layer that aspect on top of, you know, the likely technical difficulties that will occur. I think it'll be really interesting. I think it's, to be clear, I think it's a really welcome accommodation. And I think it'll be really interesting. To be clear, I think it's a really welcome accommodation. And I think the fact that they plan to have this live streamed by media outlets is also a huge nod in the direction of greater transparency that, frankly, I think is really

overdue. But I think there are going to be some kinks to get worked out. And I hadn't thought about Booking.com as going first as a way to sort of do this with some veterans at the bar. But that seems like a really good strategy if you want to work out some of these kinks. I think another difficulty, in addition for the advocates who won't be able to read the bench on the nonverbal cues, will also be the chief justice moderating the questions that the different justices ask, because you can do that in person easily by maybe even picking up who wants to ask a question before they ask it, whereas there might be some delays over the phone, and so it might be harder to tell

who asked a question first or who wants to ask questions. My guess is they're probably doing some trial runs, given that they don't really want to have their first try made public but and it's possible that they are maybe doing some things behind the scenes as well like if they had questions that they know they want to ask maybe they have a list to start out with about an order to begin but who knows right I just think it would be hard to moderate the queue of questions over the phone. Maybe they're also on video with one another and they're just not sharing that video with the world.

Like that would be another way to moderate the questions more easily. Like maybe they're on a Slack channel and they're all in there. I want to go next and the chief justice gets to moderate on Slack. That would be actually amazing if that were happening. Like they're on Zoom and they say hand when they want to ask a question. The private chat. But I do hope they're doing some,

one of the above is occurring. I hope it is not just the case. That is just going to be, you know, their nine phone lines and then the advocate's phone lines because it does sound like a recipe for chaos unless they're doing something internally. I hope so too.

I'm also a little sad they're not doing it by Zoom because I would want to know what the justices would use as their Zoom background. We already know one justice's Zoom background. Right, from Jess Bravin's interview with Justice Breyer where Justice Breyer revealed his Zoom background. Wait, what was it? It was in his Zoom chat

with the United Nations International School in New York City. And it was this kind of electric blue sky with the Supreme Court and lots of, it was very trippy. It was kind of like the Supreme Court on acid. I don't think that's why he chose it, but that's what it looked like. It was just very vibrant and vivid, like a filter, like a really strong color filter over the Supreme Court. I also think there are some things that are going to be logistically difficult, like the two-minute rule. How's the two-minute rule going to work where you're not interrupted for the first two minutes that you're speaking if there isn't anyone with a white light in each of the justices' apartments or houses. Some things will be easier. Like for

advocates, usually you don't actually have a timer in the Supreme Court, which is much different from other courts. You only have a white light will go on at five minutes, and then a red light will go on when there's no time left at all. So you'll actually get to have a timer now and know exactly what's happening, which I think will be easier. But on another kind of practical implication of this, I think it's going to mean that getting cert grants for next year is going to be even harder. There's going to be 10 more cases that are going to be heard next term. And so if you have a cert petition on the kind of end of term conference or the long conference in September, I think that you're feeling pretty nervous about pushing off 10 arguments to next term. Well, one thing they couldn't push off for next term is the Wisconsin

election. So there was a lot of activity around that. So Leah, do you want to bring us up to speed? Sure. So for those who might not have been following, Wisconsin held their presidential primary, as well as elections for other offices, including State Supreme Court and several hundreds of judges on April 7th. And at the time, Wisconsin was subject to the governor's shutdown order, ordering non-essential businesses to remain closed and asking people to shelter in place. So in the lead up to the election, several plaintiffs filed a lawsuit basically asking for various forms of relief from Wisconsin election law to make voting amidst the pandemic easier. They obtained, among other things, an extension of time to register to vote,

an extension of time to request absentee ballots, and most importantly here, they obtained from the district court an injunction against the enforcement of a state law that required absentee ballots to be received by the day after the election. The U.S. Court of Appeals for the Seventh Circuit declines to stay that injunction, leaving it in place. And then the RNC goes to the Supreme Court and asks the court to lift the stay, which they did the day before the election. The Supreme Court's order was unsigned. It's a per curiam opinion. But we know that Justice Kavanaugh is the circuit justice for the Seventh Circuit. So it's possible that he might have been the justice to write the first

draft of this opinion. Justice Ginsburg wrote a dissent for progressive justices herself, Justice Breyer, Justice Kagan, and Justice Sotomayor. And so then the primary and elections took place under these conditions where citizens were being ordered to stay home and yet had to go out to vote amidst the pandemic. Fun times. And we should say that, and Justice Ginsburg points this out in her dissent, that even, you know, at the time it was known that many individuals, I think maybe 10,000 is the figure that Ginsburg uses, who had requested absentee ballots and were eligible for those ballots under state law, had not received them and were not likely to receive them by the time of that election. And so we're put to a choice, right, of either not participating at all or

showing up to vote in person. And, you know, some of the stats regarding the number of polling places that were open on Election Day are just shocking, right? So the city of Milwaukee, ordinarily 180 polling places. There were, in fact, five open on Election Day. And most people probably saw these, I think, kind of instantly iconic images of hour, three-hour, five five hour long lines at these few polling places, both in Milwaukee and elsewhere in the state, because many, many people, you know, decided to venture out to risk their health, the health of members of their families in order to participate. And those images, I don't know about you guys, but I just found them both so devastating and also so moving and inspiring, like no one should have been in that position.

And yet just the fact that people decided and mostly in, you know, masks and a lot of protective gear to venture out and try to participate regardless of the obstacles. Yeah, it was just like crushing know, really important to this case. I think they emphasize this three different times is that the plaintiffs failed to request the specific relief that was at issue before the Supreme Court in their in their motion for an injunction. And they basically said, you know, this isn't a forfeiture issue, but, you know, it just informs whether the district court was kind of out of order in going beyond what was requested. And it was weird to me because the dissent cited a specific page number from the hearing where that relief was requested. And in the party's briefing, there were like three or four different pages from the transcript of the hearing where it was requested as well. And so I looked

back at the majority opinion, I saw that it was really carefully written to say it wasn't in the plaintiff's motion. And I thought that it was, it kind of reflected a bit of the justices, I think, ignorance about how fast paced district court emergency injunction hearings work. So this case was filed on March 17. The hearing happened on April 1, a 50 page opinion was issued on April 2. And as one might expect, this is a time period where there's a lot of new information coming in. So it wasn't really until the hearing that it was apparent. Well, oh, sorry, go ahead. So I don't I don't even think that that's quite right, since I wrote something about this. So like, I also read all of the briefs and whatnot in this. And if you read the district court's prior orders, which the judge had issued in March,

the that was the order that extended the period to register to vote absentee. That order issued in March references the plaintiff's request for extending the deadline to receive the ballots. So that transcript was not even the first time the plaintiffs requested that. And if the court had bothered to read any of the underlying orders in the case, then they would have realized it was asked even earlier than that. So it's not just that they, you know, didn't read the transcript or like didn't carefully parse, you know, this or that. It's that, like, from my mind, it's really hard to tell what, if anything, they read based on their reasoning. Yeah, and that's an even more compelling point. I mean, even if that weren't the

case, I still think it would be weird because, you know, there's as information comes in, you're going to kind of adjust exactly what, you know, what you're talking about and what the conditions on the ground are. And that's how district court emergency injunctions work. You adjust things as you get more information about the information on the ground. But that's an even more even more compelling reason. And it was also weird that, you know, the majority didn't cite any evidence. They kind of made a lot of assertions. And if you look at the district court opinion, it's 50 pages cataloging evidence and making findings of fact that weren't really addressed in the majority opinion at all, which I thought, you know, if you're going to overturn

something in three pages and have an election go on, there should probably be some more analysis in there. Well, and, you know, you mentioned their claim that the plaintiffs didn't even request this relief. Their other reasons were equally strange. So they said, ideally, we wouldn't have to intervene, but the district court here intervened at this late date. And so we have to intervene to basically put a corrective to that. But the district court actually didn't intervene that late. The district court issued the initial orders extending registration fairly early. And then when it became clear, as the Wisconsin Election Commission and the post office submitted declarations that they wouldn't be able to process all of the absentee ballots by the

deadline, that's when the district court extended the deadline a week before the election. And then it was the Supreme Court that altered the election procedures the day before the election. And even more appallingly, again, you know, just indicating the kind of lack of care they have for voting rights, they imposed an additional requirement on the election that didn't even exist in state law. The Supreme Court's order said the ballots had to be postmarked by April 7th. That requirement is not from state law. It's just something they inserted into the order, I guess, like without even thinking about it. And that requirement itself disenfranchised voters, given that some of the ballots received

by the day after the election didn't have postmarks on them, since not everything that goes to the post office or is received gets postmarked. Again, I think there was a lot of discussion of this case and the Supreme Court's response in the media, on Twitter. And one of the things I think that kept coming up was not necessarily a question of law, but a question of optics, like this idea that the Supreme Court, which at this point had deferred the bulk of its docket, including these really important cases regarding the disclosure of the president's financial records. They deferred them until after the pandemic, and they were all sort of sequestered in their individual homes or second homes in some

cases. And there you had these searing images of individuals in Milwaukee lining up to exercise the right to vote. And I think the optics of it were just crushing and terrible, like leaving aside the question of law. And I think it was not surprising that in the week that followed, you had the court sort of, you know, we're back at work and we're doing the work, we're showing our work, because it just looked really bad that they were sort of sequestered and they had allowed this election to go on in the face of incredible health exposure and risk. Yeah, Sherrilyn Ifill had a piece of slate called Never Forget Wisconsin, in which she kind of situates, you know, the court's decision in this case alongside of, you know, other judicial failures and political failures to adequately protect the franchise. You know, highlighting, among other things, the disparities in, you know,

who dies as a result of the coronavirus and the disparities in, you know, who was going to have a more difficult time trying to vote in Wisconsin because of long lines in, you know, where they lived in their polling places. So that piece is great. And we should also flag by name that the piece that Leah referenced having written appeared in The Atlantic. And the headline was the Supreme Court's Wisconsin decision is a terrible sign for November. So both a deep dive on the Supreme Court's many errors in its decision on the Wisconsin matter, but also this kind of question of is Wisconsin a harbinger of things to come? So what happened in Wisconsin, obviously appalling enough, but what does it mean? Or what does it potentially foreshadow

in terms of the November election? So maybe that's a good segue to that. So, you know, so the November general election is less than seven months away. And we have no idea at this point whether the pandemic is going to be sufficiently under control by then that we will be able to have some semblance of a normal election. I think, you know, based on in particular this kind of growing chorus on the right that we need to open, you know, business as usual back up as soon as possible. I think very likely things won't have returned to conditions in which a normal election is possible. So, you know, some version of what just played out in Wisconsin could happen across the country. But of course, what will be at stake in November is not just a seat on the Wisconsin Supreme Court and a lot of lower court seats in Wisconsin, but the presidency of the United States, right? I think one potential

silver lining that some commentators have suggested could be found, I think Vanita Gupta has made this point publicly, so that one way to try to find something positive in what happened in Wisconsin is to suggest that it was essentially a wake-up call for policymakers across the country and that there is still time to kind of prevent a recurrence of Wisconsin. And the key way to do that, I think it's pretty clear, is to act quickly to expand voting by mail in every state, right? Some states already have extremely permissive vote by mail schemes, but most don't. And I should say here that I'm on this task force, it's this cross-ideological task force of folks trying to think through kind of a range of potential election crises and responses to them. And this task force actually convened last year well before sort of this question of kind of the intersection of COVID and the election was a live one.

But obviously that sort of work has shifted to focus almost entirely on that question. But it's this very interesting group that has a lot of former Republican elected officials and appointed officials. So former DHS Secretary Michael Chertoff is on the task force. Former Kentucky Secretary of State is also Republican Trey Grayson. So lots of election officials and then some law professors and leaders of nonprofits and things like that. Sherrilyn Ifill and Vanita Gupta are actually both on the task force as well. Anyway, so the task force released some preliminary recommendations a few weeks ago. And the bottom line recommendation is that every state has to, you know, dramatically expand vote by mail, that there may still be a possibility for some in-person voting.

So it's not necessary to assume right now that it's going to be an entirely vote by mail election. But that is that the expansion of the ability to vote by mail is kind of the critical next step, and that there's a lot of infrastructural work that's going to have to be done in states to make that viable, right? To your point, Leah, about the Wisconsin election officials saying they just, they hadn't processed all the ballots, right? So states are just going to have to shift a lot of resources to print ballots, to sort of reallocate personnel, to process all of these, in some cases to make substantive changes to state law, to make clear that, you know, concerns about COVID are sufficient

to, you know, justify receiving and voting via absentee ballot. In a lot of states, just interpreting existing law to make clear that, you know, fear of the virus or just COVID concerns in general are a sufficient excuse to allow an individual to vote by mail. The federal government needs to give states a lot more money to do this. So the CARES Act included $400 million in election-related funding. So that was a start. Advocates had been seeking closer to $2 billion. It would also be nice if the federal government kept the post office around, given that, you know, having the Postal Service would be pretty helpful to facilitating voting by mail. So this is huge. You said that this is a wake up call for states that they need to, you know, jump into action. But there are a number of states that don't want to and are intentionally making it more difficult for people to vote by mail.

And one thing I didn't realize is that in some states, you can only vote by mail under certain conditions. It's not everyone can apply. So in Texas, you can only vote by mail if you're over 65, disabled, will be out of town or you're in jail but are otherwise able to vote. Last night, a Travis County trial judge issued a temporary injunction easing the definition of disability so that it includes someone who wants to apply for an absentee ballot out of fear for their health and casting ballots in person. But what's interesting is that the Texas AG's office has not only opposed this, but the deputy AG in the Office of Legal Counsel in Texas actually issued an opinion

letter suggesting that the state can criminally prosecute individuals who encourage people to try to get an absentee ballot due to their fear of COVID-19. So I guess this judge could be prosecuted. That's, you know, tongue in cheek, but it is really fascinating that at a time where there's this pandemic, there are states that will to alter – courts shouldn't be able to alter voting procedures of an election. In that situation, what the Travis County judge did might be overturned, and I'm not really sure what's going to happen in states like Texas. Texas really does not like people voting. That's the same state that prosecuted Crystal Mason for, you know, voting, even though she was ineligible and didn't know she was ineligible and sentenced her to five years in prison. Well, so the Brennan Center, which is a bipartisan group that works on a lot of democracy issues, including voting, and we've actually worked with them in producing some joint

collaboration podcasts in the past. They're working on this project right now about thinking about ways to preserve the vote and to allow as many individuals to access the vote where they're eligible in the November election. And in a lot of the discussions they've been having, I mean, it really does seem like vote by mail is the only option. And they've noted that it's not as if this is an option that necessarily privileges any particular party. So the idea of expanding the electorate is often associated with Democrats and often, you know, resisted by Republicans. But in this particular case, a number of the older voters who are more likely to trend GOP are probably the ones who are best equipped and should be voting by mail as opposed to heading out to the polls in person. So it's not clear that there is a partisan slant to this issue in as much as there is a kind of democracy enhancing aspect to this issue.

So I'm not sure why this is being resisted so mightily by so many people. We arguably saw a little bit of that in Wisconsin, where, you know, the expectation was, and I think that it's historically true that lower vote turnout does benefit Republicans in elections. And so the thinking was, by making it more difficult to vote, you know, perhaps this will operate to the benefit of the Republican candidates. But it turned out that the liberal challenger to the incumbent state Supreme Court justice, Jill Karofsky, actually ended up winning the seat on the Wisconsin Supreme Court. So, you know, while it's true that making it easier to vote shouldn't have a partisan valence, I mean, it's, you know, the president and others have repeatedly expressed

a preference for lower turnout and fewer people voting. Although I like to think of this as something like the Democrats' Gretchen Wiener moment, where, you know, everyone is standing on the stage and saying things that they are sorry for. And Gretchen Wiener turns around and goes, I can't help that I'm popular and then falls into the crowd. Right. No, no, no. I liked it. It worked in my head. I liked it. Stop trying to make democracy happen, Leah. Stop. Right. That too. It's never going to happen, at least before 2020. I do want to try to strike a positive note, which is buried in what both Leah and Melissa just said, is it seems like there is some hope of potentially, of genuinely cross ideological consensus around this, even if just because there is potential

electoral self-interest on both sides of this issue, right? It is the case that older voters who do skew Republican are going to be disproportionately impacted by a requirement of in-person voting. And it feels like now, will that break through to the president? I'm not going to hold my breath. And to the extent that Republican elected officials in states are just going to be taking their cues from him, no, maybe this is just a ridiculous pipe dream. But it does seem to me that the kind of partisan valence that this issue has had for a lot of election cycles now could be at least somewhat disrupted by both the logic that we are articulating here and also, you know, some of the lessons learned from Wisconsin, which is, you know, trying to as aggressively as possible resist, you know, expansion, including in terms of vote by mail of the electorate, is not necessarily going to redound to electoral benefits of the Republican Party. And maybe at least elected officials in some states will take those lessons to heart. Leah is shaking her head over this. I was just going to say, Kate, I love the sheltering in place and podcasting

from a closet has not dampened your optimism. I think it's exacerbated it. It's only enhanced it. Being in the closet. I'm saying there'm saying I'm saying there's a chance. That's all I'm doing. I'm saying given that, like in at least 10 percent of the coronavirus task force briefings involve the president ranting against absentee ballots and voting by mail. I'm not optimistic about this being a cross ideological endeavor. But but the but the beauty, of course, is that none of it is really his call at all right so this really now of course that dramatically he has total authority and he has his authority is total he didn't he he stuck with that position for less than 24 hours no no he still says his authority is all was alarming. He's just authorized. He still thinks his authority is total.

He's just authorized states to do what they already have authority to do. So, I mean, I think. I'm just waiting for the legal brief that Pence promised that was going to support the contention that the president's authority is total. you're, you know, if kind of combined with what Leah said about how the Wisconsin Supreme Court justice election went, you know, whether that in itself could provide that wake up call for cross ideological consensus, because not only did she win, she won by like 10 points. It was a pretty huge victory. So maybe that could advance what you're hoping for, Kate, and what I hope that we're all hoping for. Thanks, Jamie. The vote is not the only fundamental right

that has fallen to the wayside as COVID has ravaged the United States. In a number of states, Texas, Ohio, Tennessee, Louisiana, Mississippi, among them, there have been executive orders which have banned the performance of non-essential surgeries and medical procedures in the interest of preserving PPE, personal protective equipment, and medical personnel who are needed to deal with COVID cases. But interestingly, among those

medical procedures deemed non-essential during this period has been abortion. And this is something that we have talked about on past episodes. And I just wanted to draw our attention to what's been developing in Texas. So the Texas governor, Greg Abbott, issued an order prohibiting non-essential medical services and the Texas attorney general, Paxton,

further issued a statement saying that the executive order would apply to any kind of abortion, including medication abortion. And as we flagged in a prior episode, medication abortion isn't surgery. It doesn't require medical procedures of the sort that ostensibly were encompassed in the executive order. They don't require PPE. A medication abortion really is just prescribing two different pills to a patient. It actually doesn't even have to happen in a medical facility. In some places, it's sort of done using

telemedicine. In any event, abortion providers in Texas filed suit saying that this constitutes a ban on abortion in violation of Roe. And they also noted that the logic of the executive order was really off. If the purpose of the executive order was to preserve PPE and essential medical personnel in order to fight COVID, allowing women to remain pregnant or rather mandating that women remain pregnant would not serve that interest because women who are pregnant would still have to go to medical appointments. They would still be required to interact with medical personnel who would then be required to wear PPE. Eventually, they would be giving birth, and that would certainly require PPE and medical personnel. More importantly, the limitations on abortion might spur some women to leave their homes where they're supposed to be

sheltering in place to travel to states where they could obtain an abortion. Again, not a great idea in a pandemic. And finally, again, the targeting of medication abortion seemed to be sort of targeting of this specific type of healthcare because other kinds of medicated procedures were not similarly prescribed in this executive order. It goes through the Western District of Texas. Lee Yackel, who's a district court judge in Austin, enjoined the executive order. That was stayed by the Fifth Circuit, so that allowed the order to take effect. The plaintiffs went back to the district court, again, sort of taking up the Fifth Circuit's invitation to present additional facts on the

record. Once again, Judge Yackel issued an injunction. The Fifth Circuit again stayed the injunction. Only this time they allowed an exception for women who would be more than 22 weeks pregnant after the expiration of the order. And 22 weeks is the limit for getting an abortion in Texas. They then ordered expedited briefing. At this point, the providers petitioned the Fifth Circuit Circuit Justice, who is Justice Alito, for review. So this was on April 11th. As of Tuesday, the 14th of April, there was no response from the court about whether they're

going to take action on this. In that interim period, the Fifth Circuit vacated the stay as to medication abortions. So medication abortions would be allowed to be performed in Texas. And at that point, the providers withdrew their application. But this is just shaping up, certainly in Texas. Just, I think, in the last week, depending on when you're hearing this, Texas Governor Greg Abbott issued another order regarding the reopening of the state. And in this particular order, he eased his earlier ban on elective medical procedures, but he did not order abortions to resume and instead said that this would be a decision, quote unquote, for courts to make. So we'll see what

happens in Texas. Interestingly, on the morning of April 18th, a Tennessee judge, Bernard Friedman, issued an order overturning Tennessee's similar ban on abortion as non-elective medical procedures during this time. So the same issue is shaping up in the Tennessee courts as well. So lots going on. I think one way that you might think about this is a sort of, again, abortion exceptionalism, or more particularly a kind of abortion opportunism where states who, I think, historically have been more hostile to abortion provision are using the coronavirus pandemic as an opportunity to further restrict access at a time where it's, again, becoming even more essential to certain women. As Sabrina Tavernese of the New York Times had a really searing piece in the New York Times this week

about all of the women who are finding themselves in Texas without the opportunity to terminate a pregnancy. And for many of them, it's not necessarily a health decision, but in some cases, they are carrying fetuses with serious genetic abnormalities that they can't deal with. In other cases, some women are suffering economic hardship. They've just lost jobs or they are in situations where they cannot take care of another child and they're trying to make a decision and it's a difficult decision

and this is making it even more difficult for them. Well, just actually a question about the state of play right now. So I found it confusing. So Abbott issued like three separate executive orders in this press conference. And it's not totally clear to me what the state of the law at this moment is. You know, so yes, he sort of well, I don't know. I guess this is my question. As of today, do we think medication abortion is prohibited by any of these executive orders in Texas or is it permitted? So the first executive order, I think by its wording, would not have included medication abortion. But then Paxton, who is the Texas attorney general, said, of course it did. And, you know, all abortions are prohibited.

But it wasn't clear from the wording of the executive order that that was the case. And, you know, maybe it was an oversight. But I think you are right that there is a kind of vagueness to the way the orders are written as to what might be included. And medication abortion is a kind of abortion, but it's not the kind that requires or triggers any of the concerns that animated this executive order in the first place. And that, but that injunction that prohibited at least the prior iteration of the executive order from prohibiting medication abortion is still in effect. That is still in effect. Right. And, but then there's this kind of superseding subsequent executive order. So that's why I don't know.

Right. My guess is they would be able to obtain a pretty quick injunction if the state took the position that they are not enjoined from applying the prohibition to medication abortions. But, you know, maybe that's, I don't know, wishful thinking. But I think the confusion is part of the game, right? I mean, so in Texas, you had the clinics canceling abortions that had been scheduled and then resuming and then canceling and resuming. And I think that's kind of the point, at least behind the state's actions, just to make this like there is a chilling effect if you don't actually know what you're allowed to do. Yeah. And there are also other harmful consequences. You know, you mentioned, Melissa, women having to travel or women not being able to get abortions at all, even though the current state of the law with the Fifth Circuit's injunction is the order can't be the order prohibiting abortions can't be applied to women who would be 22 weeks pregnant at the expiration of the order, which is when abortion is prohibited in Texas, even then the order is still going to have all of these negative consequences because by delaying abortion, you are making it riskier, increasing the likelihood that PPE and other

medical costs would be required. You are also forcing the doctors to use instead of aspiration, dilation and evacuation, which also requires additional medical equipment. And also you're forcing the clinics to be a lot more crowded whenever this order actually expires. And it's not like the coronavirus is going to be completely gone in two to three weeks. And so then you're just going to have denser, busier clinics where the risk of transmission is greater. Well, the other thing too that was interesting about this Sabrina Tabernese piece was that she talked about this one woman who during this sort of brief interregnum where Texas had resumed provision of abortion services after the Yackel injunction went into effect, because of the COVID concerns, they were requiring patients to wait in their cars outside

of the clinic and then get called in. But there are still the abortion protesters outside. So they have not been felled by any of the concerns about sheltering in place. So they're still outside with their signs. Only this time, you know, the woman is sitting in her car, the person seeking an abortion, and they're screaming and screaming and screaming at this person about, you know, the woman is sitting in her car, the person seeking an abortion, and they're screaming and screaming and screaming at this person about, you know, this choice that the person's about to make. And so I guess the pandemic conditions have just sort of exacerbated all of these sort of ancillary concerns that we have about abortion provision, like whether it's, you know, the protests,

the waiting periods, all of this has been heightened because of the pandemic and these accommodations of pandemic conditions. One thing you mentioned, Melissa, is that the providers filed a petition to stay the lower court, the Fifth Circuit's stay of the injunction on the 11th, and that on the 14th, the Fifth Circuit, you know, altered the injunction. And then I think the abortion providers withdrew their application. But is it true that by that point, Justice Alito still hadn't even asked for a response to the original application? There hadn't been a response as of the 14th. So when the Fifth Circuit allowed medication abortion to resume,

that's when the providers withdrew their application, but they actually never heard anything from the court. I feel like usually... Yeah, what's the big rush? I feel like usually there would, when there's an emergency application for a stay, there's usually a pretty quick within a day or so where it's, you know, has some meat to it, a request for a response at the very least. And the fact that, you know, four days later, there was not even a... Justice Alito was super busy parsing all of the opinions and briefings in the Wisconsin election case, you know, carefully reading them and crafting the order and so on. So, you know. What do you think this means for June Medical Services? Which was heard, it was like the last argument that the court heard and sort of opened up all of the ways in which these issues are even more complicated under these periods of incredible stress.

I mean, another case that this is potentially relevant to is the DACA case. You had several DACA recipients filing a letter with the court, and there's been news coverage as well about the DACA recipients who are health care workers who are filling very pressing needs in our health care system right now. And if the Supreme Court allows the president to rescind DACA, you are denying them work authorization and denying them the ability to continue helping in the health care system. I think it also clearly impacts the Affordable Care Act case that's going to be heard next term. You have right now, I think, something like 16 million people out of a job. And if we're in a land in which the only way you can have competent health coverage is through your employer, and then you lose that coverage because of a pandemic, it really exacerbates all of the problems that exist. And it really points out a

lot of the things that I think those defending the Affordable Care Act address in their briefs. Yeah. And, you know, this isn't the most important issue, but we have previously speculated about when that case is likely to be argued, you know, either i.e. before or after November. And with 10 additional cases for October, I think that probably does, if they decide to sequence them, you know, in the 2019 term cases first and then 2020 after, then that challenge is almost certainly going to be pushed after the election. Are there other COVID cases coming down the pike? Well, I think we should all stay tuned to see if there is a renewal by the providers of some request in the Supreme Court, depending. I mean, there may be, you know, very fast moving litigation

in Texas. I mean, I think Tennessee, too. I mean, I think this Tennessee thing will happen too. Okay. So maybe Tennessee even first, but, but I think a lot of states are going to be cross-pressured in that they're, they, they, you know, in particular Republican elected officials are going to want to take their cues from the president and move to reopen expeditiously and yet doing so removes the cover of COVID, right. As a justification to restrict abortion. And so I think they will be cross-pressured on doing it. I mean, they, right, as a justification to restrict abortion. And so I think they will be cross pressured on doing it. I mean, they so so we will see. But so long as these orders remain in effect, I think the question that was presented in the Texas case will, you know, may be resolved expeditiously by the court. I mean, I just was thinking also to

Leah's, I think, you know, extremely damning indictment of the court's, you know, many faults in its Wisconsin decision making. Now that the seal has been broken on these telephonic arguments, is there a world in which they seek, you know, because some of this stuff could have been explained to the justices if an advocate could have pointed out, here's the filing from, you know, February or March when we did, in fact, seek this sort of relief, just to the, you know, could they, could we see them doing telephonic arguments on some of these emergency applications they never have before? But to the point that you made in your Atlantic op-ed, Melissa, that the court should not go back, could we see fast expansion of the court's, you know, willingness to do, to engage in kind of some kind of telephonic argument, you know, maybe in the context of stay requests, it might be really helpful. And it's worth noting that other courts have done so,

other courts of appeals. I remember when the first travel ban litigation was going through the courts, I think the Ninth Circuit, when it reached the Ninth Circuit on a motion for a stay, the Ninth Circuit had, it was something like motion for a stay was filed on like a Friday.

They said opposition due on Tuesday or on Sunday. And by like Tuesday, they had arguments, something like that. It was very quick. So it certainly is possible to do. OK, so to other just briefly to touch on a fewRO out of a Kentucky district court permitting a Louisville church to go forward with what it described as drive-in or drive-up Easter services. But it's a very weird case in that it wasn't, it's not totally clear that there was any sort of law that would have prevented the church from holding the drive-in services that it announced that it was intending to hold. And thus, the TRO may have enjoined nothing more than a suggestion made in a speech by the mayor of Louisville. So this was a very weird decision that I think attracted, quite

rightly, a lot of criticism sort of across the ideological spectrum. And then it felt like it reached out and decided a big First Amendment question and did so with this really extensive exegesis on the history of religious persecution. Was it an opinion or was it an audition? Yeah. Well, the audition for DC Circuit or even something higher? Why stop there? Yeah, so certainly it did not. It was a lot more opinion, both kind of in length and girth. It was a scenery-chewing opinion. I mean, this was like if Robert De Niro were trying to become a justice of the guard,

I mean, like it was everywhere you wanted to be, right? Yeah. It was a lot. Yeah. Yes? Yeah. It was a lot. Yeah. Yes. Yes. It was a lot. It was a lot as an opinion.

And it's now, so that was this TRO that was issued without hearing from the city at all. And then subsequently, just this week, there actually was argument that did involve participation by the city's lawyers. And I think some further opinion that, you know, who knows, maybe will be even more of all of it will be forthcoming. So I think that there's still a live issue in the district court there. But, you know, it's one example of this larger question of the kind of intersection of these restrictions issued by state and local officials on all manner of activity with certain kinds of constitutional rights. Obviously, we have just been talking about abortion. So there are these kind of free exercise claims, right, that prohibitions on things like gatherings infringe on First Amendment free exercise liberties. There are some kind of early there's actually been a couple of suits filed. I think maybe one was thrown out, but I think otherwise they're awaiting resolution. So these are these are challenges brought by gun owners or gun shop owners who argue that gun shops must be right. The Constitution requires that gun shops be designated essential services under these stay homehome orders that, right, have a handful of carve-outs for certain kinds of services, but,

you know, mostly not gun shops. So there's a case pending now in New York and one in Massachusetts and a few others challenging those decisions. So, you know, we'll see. I think that at the moment, courts are likely to be extremely deferential to these state and local authorities, although obviously we have at least one counterexample in Louisville. And I'm sure if you drew the right judge, you could get, you know, a ruling that the Second Amendment requires gun shops to be open during times of emergency. It's even more important during times of emergency that Americans be able to access guns. You mentioned that there's still a live issue in the Kentucky case. It's not actually clear there totally is, given that the Kentucky governor filed an amicus brief in those proceedings saying that the order of the Cabinet for Health and Family Services doesn't actually prohibit drive-in religious services.

So one additional kind of fun-deet about the case is it might not even be a case at all. Well, it might not have been last weekend either, right? So that didn't stop the judge from issuing his first opinion of the case. So it may not stop him from issuing a subsequent one. So I think that's all we have time for. I mean, we could go on forever about COVID, the court and all of the ways in which constitutional rights are being pressured as the country sort of deals with this particular crisis. But we will leave that for another day. As always, we are incredibly happy to have you all listening. Thank you for making us a part of your quarantine ritual.

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