Strict Scrutiny - The Dobbs Decision Hasn't Aged Well

Episode Date: August 7, 2023

It's been over a year since the Supreme Court overturned the constitutional right to an abortion in Dobbs v. Jackson Women's Health Organization. The majority opinion, concurrences, and joint dissent ...all made a lot of predictions about life without Roe-- but how accurate were they? Leah, Kate, and Melissa assemble a star-studded cast to do dramatic readings of the opinions and reflect on how they've panned out.Featuring Jon Lovett as Sam Alito, Elie Mystal as Clarence Thomas, Jon Favreau as Brett Kavanaugh, and the hosts of Betches Sup (Amanda Duberman, Alise Morales, and Milly Tamarez) as the joint dissenters.Listen to our episode from the day Dobbs came out: "Roe is dead. Now what?"Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

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Starting point is 00:00:00 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 legs. Hello and welcome to a special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Kate Shaw. I'm Melissa Murray.
Starting point is 00:00:54 It's been a little over a year since the court overruled Roe v. Wade and Planned Parenthood v. Casey. We did a Dobbs retrospective last summer, just a few months out from the decision, but we also wanted to mark this just over one year anniversary since the decision by looking back on some of what has happened since then. It sometimes feels like the country and people have moved past the decision, or at least to overlook and minimize it in conversations about the Supreme Court, like all of the moderate decision coverage we saw toward the end of this last term, and all of that felt profoundly misguided and actually pretty dangerous to us. So we wanted to look back on the last year since Dobbs and revisit some of what the different opinions in Dobbs said in light of what has
Starting point is 00:01:38 happened over the last year. We did want to let you know upfront, there will be discussions of pregnancy loss, healthcare emergencies, and other topics in this episode. And on top of that, this episode is very long. We are not going to apologize for that because there's a lot to say. Like this decision has had a lot of really profound consequences on people's lives, this country, our democracy, and we wanted to try and cover as much as we could. So here's what we're going to do. We've lined up some very special guests to do some cosplaying with us this episode. Some very talented voice actors will be playing the parts of Samuel Alito, Clarence Thomas,
Starting point is 00:02:18 Brett Kavanaugh, and the Joint Dissenters. They'll be reading portions of their opinions in Dobbs, and then we will all reflect on how these opinions and statements and reasoning in them have aged in the years since. So first up is Samuel Alito. Here to take one for the team, someone who is here for his first appearance on Strict Scrutiny, but I know it won't be his last because this individual has an LSAT score that would easily mark him for admission at the most competitive law schools in the nation, I'll have you know. And so with no further ado, we welcome to strict scrutiny for the first time, excluding crossover podcasts, the incomparable John Lovett. Welcome, John. Thank you. What an introduction. If my LSAT score easily got me into the nation's best law schools, I'd be a lawyer, unfortunately.
Starting point is 00:03:11 That's because you've decided not to. That's because you've decided not to. Would you be co-conspirator one, two, three, four, five? Oh, you know, it's interesting. As you move down the co-conspirator list, you know, there's been all this speculation about, oh, are some of them, are they trying to get him to flip? That thing is written like Jack Smith wants to line those guys up against a wall. Can I say that? I don't know what you mean.
Starting point is 00:03:35 Sure. You just did. Anyway, as listeners will note, we needed someone who had both the range to play Samuel Alito, aka Justice Betty Freed Alito, while also not making our listeners want to retch and tear their hair out. So congratulations, John. You are the lucky one, the only one that we could think of to bring the appropriate heft to this role. So with that, I'm going to ask you to read the first line from the majority opinion. So we discussed this webinar to do it in a voice and think like, what is like the Sam Alito energy?
Starting point is 00:04:11 And it's the energy of a landlord who's furious that your child drew with chalk on the sidewalk. You know? I like that. Eviction energy. Yes. The controlling. Yeah. And wants to evict you for it.
Starting point is 00:04:23 It wants to evict you for it. The controlling. That's it. that's it. This is sort of where he's at. The controlling opinion in Casey perceived a more intangible form of reliance. It wrote that people had organized intimate relationships and made choices that define their views of themselves
Starting point is 00:04:37 and their places in society. In reliance on the availability of abortion in the event that contraception should fail and the ability of women to participate equally in contraception should fail and the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. But this court is ill-equipped to assess generalized assertions about the national psyche and reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban
Starting point is 00:05:05 abortions. If you were really Sam Alito, you would be demanding applause for that line right now. Because in addition to the like landlord evicting you energy, it's the why am I not being celebrated for it vibe. I have delivered an amazing bit of argument and not any not a single member of the bar is applauding. No one from the bar is coming to the defense of Sam Alito. Where is the bar? Where are they? Where are my many supporters? This is the role of a lifetime for you.
Starting point is 00:05:35 I mean, no notes. I didn't spend 40 years not making a friend to be treated this way. Okay, where to start? Again, ill-equipped to assess generalized assertions about the national psyche. How has that fared over the course of this year? You just see throughout this opinion how much they want to be pundits and how bad they are. Like, you claim you don't want to be a pundit, but what coming through this decision throughout it is this idea that, oh, we're, we're, we're taking this contentious issue off the table. We're, you know, we can't evaluate the ramifications of it, nor should it be our job. And of course, now we're living in the wake of, of the decision. And, and, you know, the country is in in chaos over it. And there's been so much harm. And they were told that this harm would
Starting point is 00:06:23 happen. So here's a clip from Solicitor General Elizabeth Prelogger, who articulated the reliance interest that so many Americans had on Roe and Casey. There are multiple reliance interests here, as I think Casey correctly recognized. Casey pointed to the individual reliance of women and their partners who had been able to organize their lives and make important life decisions against the backdrop of having control over this incredibly consequential decision whether to have a child. And people make decisions in reliance on having that kind of reproductive control, decisions about where to live, what relationships to enter into,
Starting point is 00:06:56 what investments to make in their jobs and careers. And so I think on a very individual level, there has been profound reliance. And it's certainly the case that not every woman in America has needed to exercise this right or has wanted to. But one in four American women have had an abortion. And for those women, the right secured by Roe and Casey has been critical in ensuring that they can control their bodies and control their lives. And then I think there's a second dimension to it that Casey also properly recognized, and that's the societal dimension. That's the understanding of our society, even though this has been a controversial decision,
Starting point is 00:07:29 that this is a liberty interest of women. It's the case that not everyone agrees with Roe v. Wade, but just about every person in America knows what this court held. They know how the court has defined this concept of liberty for women and what control they will have in the situation of an unplanned pregnancy. And for the court to reverse course now, I think, would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country. It's just the contemptuousness that Alito brought to talking about this notion
Starting point is 00:08:01 that people do depend and have depended for now several generations on the availability of abortion should it become necessary. And Alito is like, those are assertions about the national psyche and also makes the ridiculous claim that reproductive planning could immediately take account of any sudden restoration of a state authority to ban abortions. Like contraception doesn't stop failing because states ban abortion. Also pregnancy complications. Pregnancies don't stop becoming non-viable because states ban abortion. Like it's just like the obtuseness of this claim that everyone can just respond accordingly so there will be no harm, no foul is just a year out still so infuriating. It's not a person's job to immediately reorganize how they think about what medical care is available in a hospital based on what the Supreme Court said, there are probably a fair number of people out
Starting point is 00:08:49 there that discovered just how bad this decision was when they were in an emergency and their life was on the line and they're sitting in a hospital parking lot waiting for a lawyer to call a doctor to find out if it's okay for them to go inside. This idea that you can like use logic to dance on the end of a pin to find this rationale for some of the most ridiculous interpretations of the document of the law of human rights, like that is what he does. That is what he lives to do. That's what he's been training to do. And you don't need to be a lawyer to see how arrogant and dangerous it is, if I could say. But he's so funny. Also charming.
Starting point is 00:09:28 I'm in the market for a mean Scalia without a joke. Do you have anything like that? Do you have anything at Yale? Is there anything in the Yale store that I could get? Also like a duller intellect and pen, right? We can sort of add those to the list. For sure. All right. So maybe we'll transition to the next quote when you're ready artists get in character it's okay get back in yeah take it if you broke landlord energy landlord work no everyone said no when i wanted to go to the prom everyone said no uh our decision returns the issue of abortion to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, and voting and running for office.
Starting point is 00:10:12 Women are not without electoral and political power. Unfortunately. Right. Obviously, Sam, Vermont, Kentucky. It also mattered significantly in judicial elections in Wisconsin, you know, for the race to control, you know, that state Supreme Court. On the other hand, this seems to gloss over some of the things this court, as well as the conservative legal movement more generally, have been doing to the democratic process that make it harder for women and people more generally to actually decide to protect the right to reproductive freedom. And Kate and Melissa, I know you've written about this.
Starting point is 00:11:08 This court has done more than perhaps any other institution to distort the landscape of democracy through its own decisions, blessing partisan gerrymandering, making it harder for individuals to challenge laws that try to suppress the vote, particularly among certain communities. We've also seen measures to limit the vote, particularly among certain communities. We've also seen measures to limit the force of direct democracy. So right now, in Ohio, there's a very active effort to thwart the opportunity that Ohioans will have to use direct democracy measures to protect themselves and to protect abortion rights in that state's constitution. So it seems like
Starting point is 00:11:41 democracy was sort of good here. He was kind of into it. But the rest of the party is not quite sure how democracy he accidentally says to the mic, we both know these children have no futures. And then the children all gasp and he turns to the audience of children. He goes, prove me wrong, kids. Prove me wrong. And that's what I was reminded of when I saw this. It's like, look, are you are you full people, little ladies? Not to buy my account, but hey, good luck out there. You know, use those use those bodies that belong to me to figure out how to make some change and stop me from what I've been trying to do.
Starting point is 00:12:28 You know, maybe we were giving you wrong notes, John, when we suggested like a landlord trying to evict you. Maybe the right energy to channel all along was Principal Skinner. Why don't we take a Principal Skinner approach to the next line? Let's let's see how that one plays out with a Skinner-esque vibe. Oh, no. The argument in Planned Parenthood v. Casey was cast in different terms, but stated simply it was essentially as follows. The American people's belief in the rule of law would be shaken if they lost respect for this court as an institution that decides important cases based on principle, not social and political pressures. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision,
Starting point is 00:13:09 such as Roe. This analysis starts out on the right foot, but ultimately veers off course. Thoughts? You're all the lawyers. Is that what it says? Well, I mean, do you think the public perceives that this was a political decision? I mean, I'm going to be fully straight up about this. It seems really weird to me that Roe and Casey withstood a million different challenges over the course of the last 50 years. Okay, not a million, but a lot. And it survived each and every time. And then suddenly, Ruth Bader Ginsburg dies in September 2020. Amy Coney Barrett
Starting point is 00:13:43 gets installed on the court in October 2020. Now we have a six to three conservative supermajority. And all of a sudden, Mississippi has changed its request before the court. Before they were just like, we have a very modest ask, tell us about viability. Now they're like, you know what, just overrule Roe and Casey. And the court does it. How can it not be political? How can it not be about the changing personnel of this court? Like, how is it about principle when in the past we never had anything like this, even though these questions had repeatedly come before the court? Well, also, they said it was about personnel and politics.
Starting point is 00:14:19 Like, in the debates leading up to the 2016 election, Donald Trump was literally asked about Roe versus Wade. And what did he say? Well, if that would happen because I am pro-life and I will be appointing pro-life judges, I would think that that will go back to the individual states. But I'm asking you specifically, would you like to overturn that? It'll go back to the states. But what I'm asking you, sir, is do you want to see the court overturn? You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn? You just said you want to see the court protect the Second Amendment. Do you want to see the court overturn? Well, if we put another two or perhaps three justices on, that's really what's going to be had. That will happen. And that'll
Starting point is 00:14:55 happen automatically, in my opinion, because I am putting pro-life justices on the court. He said it'll happen automatically. And I was like, well, no, not exactly. But then I was like, oh, no, he was right. Actually, it did kind of happen just. I mean, he's he's really truthful about a lot of things. Roe, the fact that that's seeping in here, which is saying, if you're telling me that there would be incredible negative political ramifications because of the monumental unpopularity of this decision, well, you've only emboldened me and forced my hand. Because if I were to allow the fact that this nation would revile this choice, well, then don't I have no choice but on principle to do it anyway, thus to prove that the Supreme Court is beyond politics.
Starting point is 00:15:50 Spoken like a guy that was rejected for the prom. That's like rejected for the prom. What you all made me do. Yeah. Yeah. And the more political pressure I feel, the more sure I am that this is the right call because that shows you just how righteous a court we have, because this group of people were put in place to defy the public will, but in this anti-majoritarian way. And so good for us. The more you hate, the better I feel.
Starting point is 00:16:18 Think about it hard. And also, honestly, they did, I think, like the Casey court, which we've been talking about, they did genuinely care about the institution of the court and its perceived legitimacy. And that's why, like, that's the language that, again, Alito is disparaging from Casey was the justices surprising a lot of people, defying a lot of expectations and upholding in this opinion written by some Republican appointees, the kind of core of Roe by saying like, guys, if we reverse course now, just after this personnel shift, it's going to be pretty obvious that we're a political body. And you know what? We're not. We don't want to be. And Sam Alito was just like fully kind of ran right into that thread. And like you said, sort of actually inverted its logic and said, that's precisely the reason we have to move forward. I'm curious what you all think about the way Amy Coney Barrett talked about this during her confirmation, because what was striking to me is just sort of an observer and political pundit who didn't go to law school is she took these great pains to basically avoid saying that she didn't respect precedent because the way she said it was, well, if a precedent truly is important, it won't come to me. Whereas Alito is saying, I don't care about
Starting point is 00:17:34 precedent at all. That doesn't factor in. She actually had one of the more interesting approaches to answering questions about Roe and Casey. And again, everyone should understand whenever they talked about precedent in the context of confirmations, they were shadowboxing with Roe and Casey. They weren't talking about anything else. That's what they were talking about. And she was just sort of like, you know, I think it was Dianne Feinstein who asked her, you know, do you think that these decisions are super precedents and precedents on precedents or whatever? And she was like, you know, if it's a super precedent, then it's been settled and it won't come before me. And
Starting point is 00:18:10 that's why it's a super precedent. If it does come before me, then it's not a super precedent that I'm obliged to offer real deference to. Didn't she even go further and basically say, I remember being really nasty and basically saying, and I'm getting a lot of questions from you about this case, which makes me think it's not a super precedent. It was like, in some ways, some of those like really sharp exchanges, I think, made her at least marginally less dishonest than like Kavanaugh and Gorsuch were because she kind of let her contempt show for Roe. And, you know, that's how she felt. I mean, she didn't really work very hard. She didn't have to. I mean. All she needed was a simple majority.
Starting point is 00:18:47 It was pretty much in the bag for her. The Democrats were in no position to beat her down. She was just basically on cruise control at that point. And then Senator Feinstein obviously asked that hard follow-up question about whether she supported France in their fight against the Kaiser, which she obviously avoided answering. John, thank you so much for coming to represent the elite strike force legal team that was the Dobbs majority, the Mojo Dojo Casa House Court and everything we have come to expect from Samuel Alito. So thank you. Thank you for having me. We'll now shift to that Thomas concurrence and joining us for this segment to play Clarence Thomas, but also to join our discussion about the Thomas concurrence is strict scrutiny super guest and author of the bestselling book, Allow Me to Retort,
Starting point is 00:19:43 A Black Man's Guide to the Constitution, and also the justice correspondent at The Nation and Leah's preferred pick for the next vacancy on the U.S. Court of Appeals for the Fifth Circuit, none other than Ellie Mestal. Welcome, Ellie. Thank you so much for having me. Let's talk about jerk face. So let's indeed get right to it. This is going to be a look back on the concurrence herd around the world. So want to kick us off, Ellie, with that first line we're going to reexamine? For that reason, in future cases, we should reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell, because any substantive due process decision is demonstrably erroneous. Okay, pause. Before we get to the substance, I didn't know you had that Thomas baritone like that. You really just channeled the voice. Can you laugh? Can you laugh? Like do a jocular laugh.
Starting point is 00:20:39 Exactly. The evil laugh. So good. See, now our listeners get to experience it. Stroke a hairless cat. Stroke a hairless cat. Stroke a hairless cat. And now to the substance. Speaking of demonstrably erroneous applications of substantive due process.
Starting point is 00:21:10 Griswold, which deals with contraception, Lawrence, which deals with gay rights, and Obergefell, which deals with same-sex marriage. But what's the fourth one? What's the one he leaves out? I know, I know, I know, teacher. I know. And the one, the substantive due process decision that he leaves out is Loving v. Virginia, the one that allows for interracial marriages. Did he forget about it? Did his clerks not remember that case?
Starting point is 00:21:43 No. I bet Mark Meadows wishes he could forget about it. Because lovingly Virginia is the interracial marriage case and he happens to be interracially married. Not that there's anything wrong with that, obviously. But like the whole reason why this line like stings so sour to me is that it shows that he is not simply
Starting point is 00:22:02 kind of applying his own radical ideology fairly across all cases. If Thomas could push a baby out of his urethra, would he have mentioned Griswold? Right? Like, you don't. Okay, that's not going into my brain. So Ellie, let me let me just intervene here to perhaps offer a devil's advocate, and maybe a defense of Clarence Thomas. Good luck. I'm not trying to defend him. So some would argue there perhaps are statutory limitations that would prohibit states from ending interracial marriage or not recognizing interracial marriages.
Starting point is 00:22:46 And perhaps that's the reason why he didn't include loving. The point here is that there were also statutory positions that applied in Lawrence. There were also equal protection provisions that applied in Lawrence, and yet he still included Lawrence. He reduces those three cases to simply a substantive due process analysis, right? Which is not the only analysis that was used in those three cases in the same ways that it wasn't the only analysis that was used in Roe v. Wade, which is what he's attacking fundamentally in this concurrence, right? So if I could just add one additional point here, which is even if there are statutory protections for interracial marriage, that would still mean Loving versus Virginia
Starting point is 00:23:25 should be overruled to the extent that it holds that the Constitution guarantees a right to interracial marriage or doesn't permit states to write statutes prohibiting interracial marriages. And then just to like quickly flesh out two things is like to the extent an alternative explanation is, well, the Equal Protection Clause could explain loving. It's not clear why that would explain loving but not Obergefell, since that distinction might also violate the Equal Protection Clause. And then just to flesh out the idea that there might be other statutory protections that could explain the results in Obergefell or Lawrence, like there are federal civil rights laws that also prohibit discrimination on the
Starting point is 00:24:06 basis of sex in a variety of arenas. And given the Supreme Court's holding in Bostock, that discrimination on the basis of sex includes discrimination on the basis of sexual orientation. It's also not clear that that rationale distinguishes between those cases either. 100%. And in terms of the outcomes that we're already starting to see follow from his clarion call, so we've talked about the conspicuous omissions from his concurrence, but of course, he highlights Griswold and Lawrence and Obergefell. And he's talking to, I think, a few different audiences when he says, you know, we should reconsider these cases. He's talking,
Starting point is 00:24:40 of course, to his colleagues, but he's also talking to lower court judges. He's talking to litigants. And it kind of feels like he's also talking just more broadly to individuals who are part of, you know, the implementation of the Constitution and like help shape its meaning. And I think he is basically saying these precedents are up for grabs and you can comport yourselves accordingly. And so we're a year out. And I think we are seeing seeds of, I think, as a result of a combination of his sowing real doubt about the future durability of these precedents, but also 303 Creative, which we talked about at the end of last term a great deal, people starting to basically say, well, public accommodations laws may not be able to
Starting point is 00:25:20 be enforced if we're talking about same-sex marriage or same-sex couples. The constitutional imperative of marriage equality may actually be in some doubt. So like, I'm just going to act on what I think the Constitution may be understood to mean five or 10 years out and refuse, you know, hair salon services, refuse maybe marriage licenses. I mean, I don't know if you guys have been following this, but Kim Davis was like set for trial in September for her 2015 refusal to issue marriage licenses to same-sex couples even post-Obergefell. And I am sure swirling around that jury trial is going to be this set of open questions that Thomas has – She's already talked about it.
Starting point is 00:25:56 But I mean even like in front of the jury. I just think that all of this is really changing the constitutional landscape, even though it is obviously an opinion for one person. It is already reverberating, and I think it's going to continue to reverberate all the more. He's talking to the Fifth Circuit is what he's doing. Your future judicial home. Right. He's talking to the Fifth Circuit, and he's doing that because he knows that people on his side of the aisle will get out in front of the Supreme Court, are willing to get out in front of the Supreme Court. Like, people forget they overturned abortion in Texas before Dobbs, right?
Starting point is 00:26:32 They just straight up with their Jonathan Mitchell bounty hunter plan, they straight up overturned Roe v. Wade in Texas before the Supreme Court got around to it in Dobbs. Everybody was like, cool, all right, we'll just roll with that then. I, for one, when I read this line, was actually really happy, not because I want to see any of these precedents threatened or in jeopardy, but because we had been saying this all along. Like in the run-up to Dobbs, everyone had been talking about what else could happen, what else could fall.
Starting point is 00:27:06 And I think we were saying that all of the substantive due process precedents were imperiled if Roe fell because they all rested on the same foundation. And there were so many people who were like, you witches need to get back to your cauldrons and stop talking crazy. And this actually, I think, made it clear that we were not nuts, like that this was definitely happening. So for that reason, and only that reason, I said for the first time ever, thank God for Clarence Thomas. So maybe we can go on to the next line. Because interestingly, while Justice Thomas seemed to
Starting point is 00:27:40 want to reconsider other substantive due process decisions because they were inextricably related to Roe v. Wade and Planned Parenthood v. Casey. He also had some other thoughts about what the majority opinion did or didn't mean as to those other precedents. So Justice Thomas, take it away. Thus, I agree that nothing in this court's opinion should be understood to cast doubt on the precedents that do not concern abortion. So here's the fun thing about that one. It's not his line. He's quoting the majority opinion. It's like somebody comes into your house, shoots your dog, leaves the cat alive.
Starting point is 00:28:24 What Thomas is saying, thus, I agree, the cat is still alive. He ain't saying not going, leaves the cat alive. What Thomas is saying, thus I agree, the cat is still alive. He ain't saying not going to shoot the cat next, right? He's not saying that the cat is safe. He's saying that he agrees with the factual situation on the ground, that the cat happens to be still alive after he's just killed your dog. The cat is not formally overruled yet. So like that entire line should have exactly as you just say a yet on it. I agree that nothing in this court's opinion should be understood to cast doubt on these precedents that do not concern abortion. And that's the problem, because I think we should be casting doubt on these other precedents, too.
Starting point is 00:28:59 Right. But I think in terms of what it does to folks in the position of translating the court's work to the public, I think that what you said a couple minutes ago, Ellie, is really profound and accurate. And this line is one that I was asked about. I'm sure you all were as well again and again the next day, which is, but Thomas says that everything else is safe. And in full context, that's not remotely true. But it's an easy line to pluck out and sort of hold out to the public as providing comfort about what this opinion actually encompasses. And so I actually think it was very strategically included by Justice Thomas. Yes. And he also pisses on the line on the next
Starting point is 00:29:33 line because the line you had me read first is the one that like, so let me just, can we just read all the lines, right? Thus, I agree that nothing in the court's opinion should be understood to cast doubt on the precedents that do not concern abortion. For that reason, in future cases, we should reconsider all of this court's substantive due process precedents, including. That's what I said. It was wrong. They didn't go far enough. That's what he's saying.
Starting point is 00:29:59 He's not agreeing with the majority. He is. He is agreeing that what the majority did. He's not saying that majority is right. He's saying that if it's up to him, these precedents would be disturbed. And he is actively shopping for cases. And this is the
Starting point is 00:30:14 thing that, like, this is where I wish I could go back to my law school professors and be like, you lied to me! Because they told me in law school that judges don't shop for cases in their opinions. right? And that's just – Who says that?
Starting point is 00:30:28 Yes, Harvard. Harvard said that. Interesting. Harvard said that. And that's just not true. And, you know, just some evidence as to why maybe including a yet in that sentence would have been more accurate or the cat isn't overruled yet is the better characterization of this sentence. I mean, think about what's happened in the last year. We had 303 Creative, which Kate already mentioned, which basically distinguished slash effectively
Starting point is 00:30:57 narrowed and limited all prior cases saying there wasn't a license to discriminate exception from public accommodations laws and invited differentiation for same-sex couples and treating them differently. You also had Students for Fair Admissions, which effectively overruled all of the court's prior cases allowing affirmative action in higher education. You had SACET versus Environmental Protection Agency, which basically whittled away all of the court's prior cases that said the EPA could regulate certain kinds of wetlands under the Clean Water Act and were looking ahead to next term in which they've got a bunch of other cases on tap in which they are being explicitly invited to overrule prior cases or again, effectively narrow or limit them.
Starting point is 00:31:43 This court doesn't care about precedent. I don't know how else to explain that to people. Like they just... Ellie's laughing because Kate's holding up her shirt. Sorry, Decisus is for suckers. I pulled out some of the original merch because it felt fitting. I say, we'd said that in 2019
Starting point is 00:32:03 and people thought we were being hyperbolic. This shirt is like falling apart from the wash because I've been wearing it for years. And it's catching up. Like the Constitution. Here's the charts. Nobody should be surprised by what's happening because they were picked and appointed for this express purpose to overturn precedent. And that goes to how good, quite frankly, and how accurate, quite frankly, the federal society has been at picking judges. To me, this all goes back, this all goes back to Anthony Kennedy and David Studer stabbing those people in the back.
Starting point is 00:32:38 And O'Connor. O'Connor, too. O'Connor, I mean, she made this precedent. Well, no, they were always suspicious of her, but she was like, she made sure they're like, you were right to be really suspicious of me. You're right, but I also think they gave O'Connor a little bit of a pass. A lady pass. A lady pass. Right? Just her silly lady brain.
Starting point is 00:32:55 She was going to be lady. She was going to lady out, right? You know, exactly. She was going to have lady brain sometimes. But that David Souter, right? That John Paul Stevens. Like the conservatives for 40 years made the mistake of picking conservative justices who actually believed in precedent, right? Who actually believed-
Starting point is 00:33:15 And limited government. In limited government. Who actually believed in practicality. I want to turn to another line. I think this one is actually perhaps my favorite Thomas line here, because I think Clarence Thomas is actually the only member of the Dobbs court who could say this with a straight face, in part because of what I think of as the epistemic authority he has as the only African American on this court at the time. So can you read this line and then we can talk about it on the other side? Third, substantive due process is often wielded to disastrous ends. For instance, in Dred Scott v. Sanford, the court invoked a species of substantive
Starting point is 00:34:03 due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. While Dred Scott was overruled on the battlefields of the Civil War and by the constitutional amendment after Appomattox, that overruling was purchased at the price of immeasurable human suffering. All right. Species of substantive due process is really doing a lot of work here because
Starting point is 00:34:32 abortion and a taking seem to be like very different doctrinal strands here. So can we talk about this, like how he's conflating these two very distinct understandings of substantive due process? The Dred two very distinct understandings of substantive due process? The Dred Scott decision was not based on substantive due process. Number one, substantive due process as just a thing that we talk about was not invented in 1852. People didn't talk.
Starting point is 00:34:58 So not only is he talking about a thing that wasn't actually invented at the time that he's talking about it. The baseline reasoning of the Dred Scott decision was not one based on substantive due process and process rights and all of that. Just for clarification, like the part of the Dred Scott decision to which he is referring is the part where the court holds that Congress does not have the authority to enact the Missouri Compromise, which essentially renegotiated property rights of slave owners. So that's the property piece of it, right? And sort of like the due process rights of property owners were apparently renegotiated with the Missouri Compromise.
Starting point is 00:35:39 But it's not at all a substantive due process decision. No, you know what it is? It's an originalist decision. Dred Scott is a straight up originalist decision. And if you don't mind, I came prepared. I would like to read the originalist part of the Dred Scott decision, right? Let's do it. This is now Roger Jerkface Tanny talking.
Starting point is 00:35:59 When the Constitution was adopted, they were not regarded in any state as members of the community which constituted the state and were not numbered among its people or citizens. Consequentially, the special rights and immunities guaranteed to citizens do not apply to them. And not being citizens within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States. That is the Dred Scott decision. And that is a wholly originalist reading of the Constitution. What Taney is saying is that because the states did not view black people as people when they were brought here, that the court cannot later infer people rights upon them. That's originalism 101. And that's what Dred Scott is, right? So
Starting point is 00:36:47 when Thomas is saying they're enacting a species of substance to due process, no, no, no, they're enacting a species of originalism. Number two, it infuriates me the way that the conservative right tries to idle the difference between Dred Scott and Roe v. Wade, right? For the conservatives, they've used for like a generation Dred Scott as code for Roe v. Wade, right? Because their argument, their analysis is that these are two morally incorrect decisions, right? Dred Scott viewed, ruled that black people had no rights, that the white man was bound to respect. From their perspective, Roe v. Wade views that the fetus has no rights,
Starting point is 00:37:33 that the white man is bound to respect, right? And so that's how they try to make the connection. And it infuriates me for two reasons. One, equating black people to fetuses offends me, all right? I, as a black person, am able to eat on my own. I don't have to leach nutrients out of a woman's body in order to survive because I'm a person. I can also do things like talk and see and wipe my own butt. The idea that a fetus is the same as a slave is just so, but number two, there is a person here in the abortion cases, right? There is a person here when we talk about Roe v. Wade or Planned Parenthood or Dobbs, right? And that person is the pregnant
Starting point is 00:38:22 person. And what Dobbs is saying, what these people are saying, is that a pregnant person has no rights that the white man is bound to respect. That is the upshot of Dobbs. Not that the fetus has no rights that we're bound to express, but the person that for nine months, from when you get knocked up to when you push it out, you have no rights that anybody has to listen to. That's what Dobbs says. And that's why the connection to Dred Scott is infuriating because they get it entirely wrong. The Dobbs court says they are just simply ill-equipped to assess these rights of
Starting point is 00:38:56 these so-called people women you are referring to. Are they people? Are they people? That's why I said so-called. That's why I said so-called. I mean, I think we're going to have to have a Daubert hearing about it. Yeah. Honestly. Who's the expert, though, right? Samuel Alito. Samuel Alito is the expert. So I just wanted to say two things.
Starting point is 00:39:17 One is the passage from Dred Scott you read, Ellie, about how the court said black people did not have rights that white people were bound to respect, that wasn't even about the property rights aspect of Dred Scott at all. That was about the court's initial holding that black people were not citizens for purposes of the Article 3. Exactly. And therefore could not sue in federal court and the federal courts did not have diversity jurisdiction over their cases. So like that didn't even involve this species of substantive due process, like Tickings-esque claim. But then second is, you know, Melissa, when you were introducing this segment, you mentioned that Justice Thomas is the only person with the epistemic authority to make this claim. And yet, and yet, people before him, other justices had tried to, namely Justice Scalia,
Starting point is 00:40:04 who also analogized the Supreme Court's decision in Planned Parenthood versus Casey to Dred Scott when he recited some of the court's reasoning and then said, there comes vividly to mind a portrait that hangs in the Harvard Law School. Always Harvard. Roger, Danny. What the fuck is going on at Harvard Law School? What is going on? What's School? What is going on? What's happening? I'm just happy I got out alive, man. Can I just say one thing
Starting point is 00:40:32 in defense of Justice Scalia? Let me just say, like, he doesn't go nearly as far as Justice Thomas does here. I mean, like, Justice Thomas literally is doing Civil War reenactments. Like, we're on Appomattox. There's immeasurable human loss and human suffering. I mean, he's conjuring the battlefields of the Civil War
Starting point is 00:40:50 in much the same way at his confirmation. He conjured the image of Black men being lynched. I don't think anyone has ever gone that far in their recitation of Dred Scott, and certainly not Scalia, who mentions it, but links it to this portrait of Roger Taney that hangs in Harvard Law School, but doesn't go any further, in part our ancestors while doing everything he can to put that pain forward into the future. He's always tried to protect himself through his blackness
Starting point is 00:41:41 while doing everything he can to keep other black folks down it's one of the more uh i think terrible parts of his career and his public life he does this as a matter of course though i'm used to it i guess is the best way i can put it right like of course thomas is the one who wants to get out there and be like oh look at what happened to the slaves it's so bad and that's why women should have no rights. He does it so seamlessly, and he does it so easily, and he's done it for his entire career, his entire public career. It's one of the reasons why that man can't stand Ketanji Brown Jackson. That's why that man hates Ketanji Brown Jackson, because katanji brown jackson is basically sitting there
Starting point is 00:42:25 kind of just saying anything when you are the only black person in an all-white environment you get to you have license to say some stuff without anybody calling you out for it right like speaking of harvard law school right like as a person who was often in the only black person in the room right you can have some fun with white people until in terms of like speaking from what they assumed was your authority right so one time this is not something i'm proud of but i'm talking about on the podcast so that's really great um you know so i'm drinking a bunch of white friends and they're bothering me right so i do a joke and i say to them you know most black people poop standing up. And these white folks were like,
Starting point is 00:43:07 really? Why are you like this? Why are you like this? I was drinking and annoyed by these people. Right. And like for five minutes, I just had him going. That's Clarence Thomas. Clarence Thomas is that joke only for 31 years on the Supreme Court. And with catastrophic consequences for the nation. For like actual black people. Exactly. That's Clarence Thomas. And that's what, and, and Katonji Brown Jackson just doesn't let him get away with it.
Starting point is 00:43:36 Which is nice. The last point though, about this overruled on the battlefields of the Civil War, right? Was it really? Because as far as I remember, correct me if I'm wrong, but there was a war, good guys won, and for like 13 years or so, the good guys committed to keeping their foot on the neck of their racist cousins so that there could be freedom in the South. And then they got sick of it. Then the good white people, the good white folks got sick of reconstruction, got sick of militarily dominating the South.
Starting point is 00:44:15 They went back to their racist societies in the North and the South immediately reinstituted basically everything that Tanny says in the Dred Scott decision. Immediately went back to Black people have no rights that the white man is bound to respect. Immediately. Originalism doesn't have to be faithful to actual history, Ellie. I think that's clear by now. So Ellie, thank you so much for helping distill this concurrence as truly only you could. There is a reason you're a strict scrutiny super guest and we're grateful for the time. So thank you. Thank you so much for having me. And now here because he is willing to humor us for his first appearance on Strict Scrutiny as
Starting point is 00:44:53 a guest that is excluding crossover episodes, coming to us beamed down from the mothership that is Crooked Media is one of the hosts of Pod Save America, Jon Favreau. Jon, welcome to the pod. Thanks for having me. And thanks for asking me to play Brett Kavanaugh. I mean, we needed somebody to play America's favorite father of daughters, the ultimate girl dad, the greatest feminist on the court since RBG. So that's what you're here to do. But because- Drank a lot of beer in college, played a lot of beer pong.
Starting point is 00:45:23 We're not totally cruel, so we will also allow you to join us in responding to the lines that you are going to be reading. And if at any point the criticism gets too much for you, just say, I hired the first all-female class of law clerks, and I am a father of daughters, and then automatically no one is entitled to criticize you. Thank you. That is a good out. So without further ado, maybe you can read the first of the justices' lines. Great. The nine unelected members of this court do not possess the constitutional authority to override the democratic process and to decree either a pro-life
Starting point is 00:46:01 or a pro-choice abortion policy for all 330 million people in the United States. Wow, that was a really good reading. Like, I felt like he was here. I felt that was very Brett-esque. That's what I was hoping for. So how have these lines played out? I mean, per usual, I think Brett really got it wrong. Don't you think?
Starting point is 00:46:24 What'd he miss? What did he miss? I mean, this idea that this court does not possess the constitutional authority to override the democratic process. I mean, this medication abortion ruling down in Texas. Okay, not this court, but a court, and they may have something to say about it anytime? Well, we will see. I think in some ways we have seen some of the predictions, like in the joint dissent, which we will get to, really borne out regarding the on-the-ground consequences in terms of suffering and medical crisis and dreams dashed and all the other things that the joint dissenter said would come to pass as a result of this court's overruling of Roe. That we've already seen. I actually think because the court still has to come back to a big national abortion case, which may be the medication abortion case, we will see. If the court decides to side with this lunatic challenge to medication abortion, which it didn't do on the shadow docket, but who knows if they actually hear full arguments on this case and decide to somehow either curtail or limit the availability of Mifepristone, then, you know, obviously this will give the lie to that suggestion that the court is not going to set nationwide abortion policy.
Starting point is 00:47:33 But even with what the court has done so far, basically suggesting we're going to let the states just decide for themselves, but then essentially put in place all kinds of obstacles to people in the states actually deciding for themselves what abortion policy is going to look like. It's hard to take this very seriously, but I think it is to be seen what the Supreme Court is going to do with its next abortion case. But Leah, do you agree with me that I think we've already seen some inklings that this court is not as studiously neutral as Brett Kavanaugh would have us believe? I think there has been some evidence to that. Which pieces of evidence do you have in mind, Melissa? Well, I want to hear your evidence first. Show me your evidence, Leah. So one is the writings, of course, of Samuel Alito, not just in the US reports,
Starting point is 00:48:18 in which he was bitching about how the government had not promised to enforce a ruling that would be a judicially ordered ban on the most common method of abortion in the United States, medication abortion, but also what he has written in, frankly, the pages of the Wall Street Journal and told to them as well, in which he has criticized efforts to criticize the court for what they are doing, and announced that he actually didn't know how to pronounce Mifepristone despite going along with that judicially ordered medication abortion ban. I also just think even if we are not going to consider extra judicial writings or talks, like, you know, this court in the context of guns, like has shown precious little attention
Starting point is 00:48:55 to being neutral on questions in which democratic processes have apparently played out and worked themselves in favor of gun control legislation. I mean, so this idea that the court's just neutral and not playing politics is, it's just, it's ridiculous. He knows it's ridiculous, but he continues to say it because that's what he does. So John, back to you. Yes. Studiously neutral. Brett Kavanaugh has more to say about how the court has to be studiously neutral. So why don't you read the next line? by the Constitution. Other abortion-related legal questions may emerge in the future, but this court will no longer decide the fundamental question of whether abortion must be allowed throughout the United States through six weeks or 12 weeks or 15 weeks or 24 weeks or some other line. This is another example where I fundamentally wonder whether he
Starting point is 00:50:02 is high on his own supply. And like he is just so sold on everything the conservative legal movement has told him because already in the last year, there are a bunch of cases that tee up the question about what sort of restrictions on abortion are permitted. You know, there are lawsuits under EMTALA, the federal law that requires emergency care for people in labor. And there are conflicting federal judicial decisions about when and whether EMTALA, you know, basically contravenes or prohibits the enforcement of these state restrictions. There are also state restrictions potentially in conflict with the FDA's approval of mifepristone. Again, there are multiple cases raising these issues as well. And those cases are going to tee up the permissibility of different
Starting point is 00:50:45 methods of abortion, you know, at different points throughout pregnancy. So like, that's not going anywhere. John, obviously, you are a politico. And so kind of a political question that I would love to pose to you is, what do you think? So if we're right about how this all played out, which is that John Roberts tried to convince Brett Kavanaugh to do something much more measured and allow Mississippi to enforce this ban, but not overrule Roe. And maybe it seemed like it was kind of working, and maybe the leak of the opinion changed the trajectory. Maybe not. Who knows? But in any event, Kavanaugh did not go along with the Roberts approach. He joined the Alito opinion in full, but then wrote this separate missive, whatever it was. The Cav Current.
Starting point is 00:51:23 I mean, do you think if you're- The Cav Current. I mean, do you think if you're- It's the Cav Current. The Cav Current, right. And then obviously we saw the Democrats' electoral fortunes really buoyed in the midterm elections, at least in part as a result of Dobbs and kind of going into 2024. Despite their best efforts to have it not buoy their electoral fortunes. It did. It did in fact. What do you think Brett Kavanaugh is thinking right now? Was the court, do you imagine there's any buyer's remorse in the court having gone as
Starting point is 00:51:48 far and as fast as it did here if it actually has hurt the Republican Party? I mean, and do you long-term think that that's going to prove true in the 2024 election cycle as well? I mean, we, you know, we're seeing Donald Trump continuing to tout having put on the court the justices who overturned Roe despite the unpopularity of that. And so I guess just, you know, both a year out where we think Kavanaugh might be, but also how likely Dobbs is to continue to be a big electoral issue going into 2024. Yeah, I hesitate to put myself in the mind of Brett Kavanaugh, despite the fact that I am reading his words on this episode. But no, if you would ask me about like Alito or Thomas, I'd say, no, there's probably no buyer's remorse. But Kavanaugh, because he is a fundamentally a Republican operative or was in a past life, probably still is.
Starting point is 00:52:41 Yeah, I think he's looking at the politics and wondering maybe this was more of a backlash than i expected i mean i think you're it's it trump is interesting because he's out there bragging about putting these justices on the supreme court but at the same time you see him sort of walking away from the six-week ban or a little trying to dance around it and you know he's he's got better political instincts than ron desantis uh and some and mike pence um in thinking that like this could be a problem in a general election and i think what's interesting with the politics of this is you you see a bigger backlash in the states where there are bans now right and so where people are seeing their rights taken away,
Starting point is 00:53:26 even in the deepest red states, like we saw in Kansas, this is an issue. And I do think that any Democrat running in 2024, particularly in a place where abortion rights are at risk, which will be everywhere, if we get a Republican president and republican congress and there go for a national ban then you'll see it become an issue and i think democrats should i mean what republicans are trying to do right now and you hear this with everyone from desantis to to everyone else is saying like oh well national ban i just don't think it'll ever come to my desk that's they and and no one is pressing them on it like i mean even chris christie said that to love it in the interview too he was like i don't think a national i don't think we'll get a national ban but they're not willing to say they'll either say
Starting point is 00:54:13 no to a national ban or they'll prove it because they know of course they will say yes to a national ban if it gets through congress but democrats should forget about their half answers we should just say that if republicans win if they get control of all three branches, to do if a national abortion ban comes to your desk is the wrong question, because we have seen that they are actually willing to attempt to restrict abortion without passing laws. And so another example, we talked about the medication abortion lawsuit, is the possibility that they will attempt to enforce the Comstock Act, which is the Victorian era law that is on the books that prohibits the distribution of licentious materials. And there are theories, including one in the medication abortion case, that actually in the wake of Dobbs, that allows the federal government to prohibit and criminally prohibit the distribution of medication abortion. And so you could have a Republican president and Republican attorney general effectively enforcing a kind of federal abortion ban without the Republicans in Congress ever having to pass a law or the president sign one.
Starting point is 00:55:33 And that's a real risk that it feels like people just aren't talking about in this lead up to the presidential election. That'd be a good debate question for those Republicans in the first debate. It would. I don't know who the moderator is. It's probably like Sidney Powell or something. She might be busy, depending what Jack Smith does next. Or Ginny. Maybe it's Ginny.
Starting point is 00:55:52 Speaking of debates, I think this might be a good time to play a clip from the 2020 debate when candidate Trump had a lot to say about his new nominee, then judge, now justice, Amy Coney Barrett, and the impact of abortion policy on that election. The point is that the president also is opposed to Roe v. Wade. That's on the ballot as well in the court, in the court. And so that's also at stake right now. And so the election is all ready to be done. You don't know it's on the ballot. Why is it on the ballot? Why is it in the ballot? Because you said it's not in the ballot. It's on the ballot in the
Starting point is 00:56:30 court. I don't think so. There's nothing happening there. And you don't know her view on Roe v. Wade. How does that strike you now, John, in the rearview mirror. I think we have, those of us on this podcast, have long believed that what Republican candidates say about justices that they may or may not nominate and how they're just going to be calling balls and strikes and neutral and don't have any political views is bullshit. But I think after the last election, we may have put that to rest for, I'd say, a majority of the American people now. I am certainly hoping so. But I think that this is another reminder about how to take the statements about what they would do with a federal abortion ban, you know, hypothetical one or not. Right. In 2020, after literally almost four decades of Republican presidents campaigning on appointing justices who would overrule Roe. At the moment, this was in their grasp. All of a sudden, they're like, what are you talking about? We have no idea what the justices we're appointing are going to do. Who is to say? Who is to know what Justice Amy Coney Barrett is going to do? And then what do you know? It happens. I don't know how you do. If you're in the Senate, I don't know how you approach the next hearing, like the next confirmation hearing, knowing that so many lies have been told, whether they're lies, you know, even if they're lies of omission by previous nominees.
Starting point is 00:57:53 I mean, if you're Ted Cruz, you find a children's book and you put it on a billboard and then you talk about anti-racist babies. And then if you're Josh Hawley, you go curious and start screaming about pedophiles. Yes. Yeah. Yeah, that's right. John, we're going to ask you to maybe transition or sorry, Justice Kavanaugh, we're going to ask you to transition to the next quote, if you're ready. Some of the other abortion related legal questions raised by today's decision are not especially difficult as a constitutional matter. For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no,
Starting point is 00:58:31 based on the constitutional right to interstate travel. Easy peasy, lemon squeezy, not a big deal. This just like encapsulates everything that is so enraging about Brett Kavanaugh, because on the one hand, like, that's helpful. He wants to assure everyone. That's great. We could travel. This is literally cut and pasted from an Emanuel's on constitutional law.
Starting point is 00:58:52 Like this is from a commercial law. Because he says, because it is the case that we all think, and it seems right, that there should be a constitutional right to interstate travel. But the avowed originalists and textualists on this court are supposed to care about what's actually in the written constitution. And it turns out you can scour the words of the constitution. And in fact, there is no explicit protection for the right to travel per se. It has been understood as emanating from various parts of the constitution, much like the right to privacy and to terminate a pregnancy was once understood to flow from various provisions in the constitution, though
Starting point is 00:59:25 abortion itself appears nowhere. So he's just kind of like casually deploying this contested constitutional claim as if it's very easy and obvious, but he's hoping no one will notice. And he does hedge, Kate. He says in his view, he's going to be the lone vote for this. He will be principled and he will uphold the constitutional right to travel. like in Texas, in Florida, right, of people who have unviable pregnancies that are forced to give birth anyway, and women's health being at risk. And like, it is, it is shocking. And I think it's sort of, you see them pop up in like local news stories all the time, but they kind of go under the radar after that. And I think that reminding people of these extreme examples, not just because they're the only injustice, but because I think that that will hit most voters in a real serious way, is going to be
Starting point is 01:00:32 important. And these are the kind of things that you hear in apolitical settings, right? Like with people who aren't news junkies and politics junkies, and people who might be more conservative, right? They just talk about a story who might be more conservative, right? They just talk about a story they heard about someone who almost died because they were forced to give birth. And I think the Democrats have to make that a central part of the campaign in 24. I mean, I don't think he had any more big thoughts.
Starting point is 01:00:58 So I guess. No, that's it. The words to thought ratio was pretty. I think you covered them all. No, that's it. The words to thought ratio was pretty... I just got to go be a father to my daughters. Girl, dad, you have to probably go coach. Talk to my law clerks. Yeah. Thank you for stopping by. Thank you guys.
Starting point is 01:01:20 This was really fun. Appreciate it. So listeners, we have saved the best for last. And that, of course, is The Joint Dissent, which was jointly written by the Quartz Cassandras, who I should say then the Quartz Cassandras, because they've definitely been upped in their number. But these Cassandras definitely saw what was going to happen. And of course, we know them as Sonia Sotomayor, Elena Kagan, and Stephen Breyer. And we are delighted to be joined for this segment by some very special people who will be playing the Joint Dissenters, the best role in this retrospective, trust us, and also discussing the last year through their eyes.
Starting point is 01:02:10 That is the hosts of the Betches Sub podcast, Amanda Duberman, Elise Morales, and Millie Tamarez. Welcome to the show. Hello. We're thrilled. I have a joke. I think it's a very hackneyed joke, and I have a feeling that guests have already made it, but it is that me being on this podcast might be the longest
Starting point is 01:02:25 my husband ever listens to me. No one has made that joke. You win it. You win it. Amanda's husband's famously a lawyer, and he loves it. Yes, he is Big Law Ken. Big Law Ken.
Starting point is 01:02:43 He is Kenuff. He's just Ken, your Barbie. Exactly, exactly. Big Lock Ken, liberal politics Barbie. Well, we are, I think, even more excited than Big Lock Ken husband is to have you on the podcast. Leah and Melissa had a blast recording with you all on your podcast earlier in the summer, and I was so bummed that I couldn't be there, but we all knew we needed to get you back
Starting point is 01:03:04 and get you on our show, ASAP. So let's do it. Yes. First, very important threshold question. Which justice in the Dobbs majority, aka the Mojo Dojo Casa House Court, has the biggest Ken energy or Kenergy? Oh, I feel like Brett. I i mean just the name brett is a version of ken in a way i was gonna go with sam alito just from plastic yeah i feel like okay okay this is where we descent i feel like pre uh kensurrection i think was uh was Brett Kavanaugh for sure. His job is beach. He's all about vibes. Barbie, Barbie, look at me, look at me, look at me.
Starting point is 01:03:52 The emotionality, the crying. I think his job is the big coat. No, that's post. We're talking pre. Yeah, no, no, no. Yeah, pre-censurrection. Post, the sinister, the horses on TV giving it's given mr thomas for me i think it's giving gorsuch as you said that this like rugged western country meal gorsuch would never wear a mink coat no but the horses somehow i feel like sure i'm just like it's only because
Starting point is 01:04:21 he's from colorado plotting the listen to me the listen to me play guitar for four hours is giving book. It's giving buy my book. That's like really weird and long. These are great answers. Spoiler alert. I do think the Simu Liu Ken is very definitely Sam Alito here, don't you think? Yes.
Starting point is 01:04:45 I am simply disturbed we have so many options because it is mainly men. I mean, that's the world in which we live, right? We don't live in Barbie land. We live in the real world. So back to our original programming. Now, we would love for you to share a line from The Descent, and then we can all debrief about it, talk you to share a line from the dissent, and then we can all debrief about it, talk about how it's aged over the last year, whether it still has that
Starting point is 01:05:11 Kennergy, or actually Barbie energy. Yeah. Yeah, Barbie energy. I guess I'll start. So, whatever the exact scope of the coming laws, one result of today's decision is certain. The curtailment of women's rights and of their status as free and equal citizens. It says that from the very moment of fertilization, a woman has no rights to speak of. 10 out of 10. That checks. No notes. No notes.
Starting point is 01:05:41 Yeah, unfortunately holds up. Regrettably. It's giving Oklahoma, Arkansas, like a lot of places really. Texas had put in place a bunch of the scariest laws ahead of time, but it is still like terrifying to see what women have had to go through in Texas. Yeah, it feels like a year out to see whatever the exact scope of the laws and to now know what that scope is, is pretty disturbing and nauseating. Well, because it's even like, it's not even women. what I mean, doesn't have rights. the joint dissenters' predictions have been borne out, we thought it would be useful to play a couple of clips from the Zerowski trial that is unfolding in Texas State Court right now. And that's the case seeking an injunction barring the enforcement of laws that do not allow doctors to provide abortion care when such care is medically necessary in the doctor's judgment. And there has
Starting point is 01:07:01 been just some unbelievably wrenching testimony from the plaintiffs and physicians in the case. And in case people haven't been following it closely, we thought we'd use this opportunity to play some excerpts. I felt like my pregnancy was not my own, that it belonged to the state, because I no longer had a choice of what I could do. I felt abandoned. I couldn't believe that after spending my entire life in this state, being a sixth-generation Texan, practicing medicine in this state, that the state had completely turned their back on me. And for them, my only choice was
Starting point is 01:07:51 to continue the pregnancy. I mean, these are really the worst case scenarios I feel like women were warning of. Elise used to say something on the podcast, you know, for years before this, where, you know, eventually there will be a name who is kind of the first woman first person that we all acknowledge died as a result of these I wonder if it's happened already but like I mean the stories that you hear I mean a woman like she was so overcome by what happened to her that she vomited on the stand I mean Amanda's arouski has had to unpack her deepest trauma over and over and over again and I think know, when we we knew all of the possibilities from this law of how it would affect people, something that, you know,
Starting point is 01:08:29 I definitely didn't think of as much as just how much they were gonna have to re traumatize themselves over and over and over again. And just to look back on like the year that somebody like Amanda Zyrowski has had, it's just devastating and sickening. And nobody should have to go through that and then be like the spokesperson for it. Yeah, I mean, it seems extremely unfair. And just thinking about how the majority of people in this country who make these laws like, have never had to go through it even any remote, anything remotely, like, don't understand like women's care, like, a lot of these people, especially like legislators in Texas, like, famously don't know how long a period lasts
Starting point is 01:09:11 or that it can last different. And the fact that like, people have to re traumatize themselves to share for people to have some modicum of compassion or understanding of how their legislation affects it it's just really sickening and yeah for me it's like when i hear these clips and i i hear these women again having to trot out their personal traumas uh for a group of people who honestly don't give a shit like i remember in the first instance of this like amanda zarosky was testifying before congress ted cruz doesn't even show up like these are people who he was in cancun at least well the ritz-carlton is waits for no one yeah well snowball was there. You remember his dog? Justice for Snowball.
Starting point is 01:10:07 Justice for Snowball. Don't drag Snowball's name into this. I'm saying Snowball showed. Snowball is being held accountable. into the legacy of like taking it back to like Christine Blasey Ford where like women have to come out and say talk about the worst moments of their life before a panel of just like uncaring individuals even going back to as far as like Anita Hill and then maybe in like 20-30 years we'll be like wow she really did I mean, obviously we here can acknowledge it, but like, it's such a long game for these women to actually be recognized for like the bravery of what they're doing and what they're saying. And it's so frustrating to see them have
Starting point is 01:10:58 to do this for a group of people that didn't even care to like consult doctors before writing their laws about a medical procedure. People who like for them, it's about political points. It's not about the reality of what women have to go through as a result of the stuff they're putting into place. Well, and it just goes to the first thing of like, women are not free and equal citizens. Yeah, they don't care. It was something that you said earlier, just about, you know, the lack of representation in some of these institutions that are making decisions about, you know, whether a pregnancy will be continued, or whether it won't be institutions that have no medical training to speak of. But Kate and I have a paper where, you know, we note that in the states with the
Starting point is 01:11:42 most draconian abortion laws, there is an overrepresentation of men in the legislature. So men are passing these laws. And in jurisdictions where women are better represented, like there are better outcomes, like laws that are more favorable have exceptions, like maybe don't ban abortion entirely. And, you know, there's something so perverse about that. I mean, when you think about all of the reasons why women are not involved in politics, you know, a lot of it is due, I think, to one, not having the capital to get into the race, like so much is needed to become a candidate, not having the time, because you have all of these other responsibilities, often to young families. And instead, you know, we have to cede this political landscape to so many of these men, and then they turn around and make these laws that absolutely
Starting point is 01:12:30 stick it to us. And just to put some numbers to that, right, the Mississippi legislature, so Mississippi is the state out of which the law at issue in Dobbs arises. That legislature is like 14.9% women. It's mostly men in that legislature. That's lower than some other states, but there's nothing approaching parity. In state legislative representation, the federal Congress is a little bit better, but women, when they do run for office, mostly do it after having kids, sometimes after their kids are out of the house. So not only do you have women wildly underrepresented, you have young women, like radically, radically underrepresented. There are very few young women whose bodies are
Starting point is 01:13:06 going to be the most impacted by these laws who participate in the making of them. It's mostly people who are men and mostly old men. And then there are some women, but smaller numbers and mostly much later in life. So it's just not these lawmaking bodies don't remotely reflect either the population at large or critically the most affected segments of the population. I'm sorry, Kate, I specifically remember Samuel Alito saying that we did have the electoral ability to just fix you. Women are not without political power. Just vote. Just vote. Just vote, Barbies. I mean, that point that you made, Kate, was just really reminded me of something we covered in Betches a few weeks ago. I'm the sup about this article saying that, you know, as we're talking about,
Starting point is 01:13:51 like elected officials, it's like, if you're a young woman, you know, working in a professional environment, people will often say, like, you're inexperienced, or you don't know, or this and that. But if you're older, they're like, oh, you're really out of touch. And it's just like, seems like an impossible task to be a professional woman, working woman, like in general, just to be like a marketing exec or a marketing manager. So I you have to, you know, you have to like, wrap your head around that of like trying to get people to vote for you to represent them is like its own hurdles and its own things but the result of that is laws that you know again it's just the same people who think you can go to college for three thousand dollars
Starting point is 01:14:38 and buy a house for 50 are the same people who are like just don't get a boy it's like no foot just put the baby in a box at the end yeah just put a baby in the box like we have whatever just go to work and all this stuff mississippi it's just so funny mississippi famously a great place to raise children all their government support things have been taken by a former football player to build a volleyball stadium like they're for his daughter so pro women hello uh it's the father of daughters that's a girl dad right there uh so yeah just all these things are just seeped in so much irony. Alanis Morissette should include it in a remaster of Ironic. I can't imagine. There's more in this joint dissent. And these two women, Sonia Sotomayor and Elena Kagan,
Starting point is 01:15:34 and their wingman, their Alan, Stephen Breyer, had a lot to say. So maybe let's read the next line and parse that. The most striking feature of the majority is the absence of any serious discussion of how its ruling will affect women. A state can force her to bring a pregnancy to term even at the steepest personal and familial costs. Human bodies care little for hopes and plans. Events can occur after conception from unexpected medical risks to changes in family circumstances, which profoundly alter what it means to carry a pregnancy to term. In all these situations, women have expected that they will get to decide, perhaps in consultation with their families or doctors, but free from
Starting point is 01:16:16 state interference, whether to continue a pregnancy. For those who will now have to undergo that pregnancy, the loss of Roe and Casey could be disastrous. What I like about this quote, or I don't know if like is the right word, but what jumps out at me about this particular quote is that it also acknowledges that there are reasons that women have abortions that aren't just medical emergencies. And that's something that I feel like now in the wake of the decision, for better or worse, there's a lot of focus on like the women who never wanted to have one, but because of a medical emergency that arose have had to have one. But there are so many other legitimate reasons why women make this decision. It says in the quote, unexpected familial circumstances, financial issues. There's just so many personal reasons that anyone chooses to have an abortion. And the fact that that decision might be taken away,
Starting point is 01:17:28 it is they use the word disastrous, like that can have a disastrous effect on a person's plan for the rest of their life. My favorite judge, Judge Lynn Toler from formerly of divorce court, used to say, if you're not in control of your fertility, you're not in control of your life. And I feel like that is something that really struck me. And that's why this again, just to, you know, piggyback off what Elise was saying, a high percentage of people that doing, you know, I think people see like, oh, abortions are done by irresponsible women that use that as birth control and all this stuff. When the number is 40% of abortions are, you know, are with women who are married.
Starting point is 01:18:14 And there are a lot of financial costs that this government again, with the representation, the representative body being 80, 70 years old, like, don't know what it's like to raise a small child don't understand the financial constraints or anything, the time that it takes, the hits that it takes to being a woman, a working woman in a career and all that stuff, like, these are all factors. So it's like, they're not doing you know, I mean, we can have five other podcasts about the realities of being a working mother in this country and like how our government does not make things easier for that reality. But then, you know, for people want to make another option, it's like they've completely removed that. It just doesn't feel like we're equal and free, you know, because it's like we really don't have many options. You're taking the options away of what we can do and what our life looks like.
Starting point is 01:19:14 We had a whole fight over the course of the Biden administration about whether we should think about childcare as infrastructure. I mean, like, you know, whether that was necessary to make the economy work. And it's worth, I mean, you make a really great point, Millie, like, this whole pro-life ethic is nested within an ethic that really abhors the idea of redistribution of resources in society, and especially to women to help them raise their families. I mean, we were kind of talking earlier, legislators are writing these laws without input from doctors, it's almost like they donators are writing these laws without input from doctors. It's almost like they don't understand what is going to happen from them.
Starting point is 01:19:53 And some people have asked, like, did the court, the majority in Dobbs, anticipate what would happen in the wake of Dobbs? Did they know? Well, people told them to their faces, like in the pages of the U.S. reports. So it's not like they didn't have this information before them, right? And in fact, this is, again, how it has played out. Like, again, from the Zorowski trial, here are two different witnesses testifying about pregnancies that they were carrying that were incompatible with life, that they were forced to carry two-term. One from Ashley Brandt, the other from Samantha Cassiano. I've had to watch Twin A, identical version of my daughter without a skull and without a brain.
Starting point is 01:20:53 And I would have had to hold her until she died. And I can see her pain in her eyes. And she told me that my daughter has been diagnosed with anencephaly and that means that her skull and her brain is not fully developed. And that she was sorry, I didn't have any option. I was pregnant. She then called in a caseworker. Caseworker came in and they handed me a paper that said funeral homes on top of it. She told me that I didn't have any options because there was a law that, the Texas abortion law prohibited it.
Starting point is 01:21:37 I wasn't able to get one. So I, I felt like I was abandoned. Because we think it's so important to make clear what Dobbs has unleashed, we wanted to include here a very lengthy segment from Amanda Zyrowski. It's her opening statement to the Senate Judiciary Committee where she testified about her own experience in Texas. So here it is. And again, it's long. My name is Amanda Zyrowski, and I'm here to tell you a little bit about my experience with the Texas abortion bans. About eight months ago, I was thrilled to be cruising through the second trimester of my first pregnancy. I was carrying our daughter, Willow, who had finally blissfully
Starting point is 01:22:20 been conceived after 18 months of grueling fertility treatment. My husband Josh and I were beyond thrilled. Then on a sunny August day after I had just finished the invite list for the baby shower my sister was planning for me. Everything changed. Some unexpected symptoms arrived and I contacted my obstetrician to be safe and was surprised when I was told to come in as soon as possible. After a brief examination, my husband and I received the harrowing news that I had dilated prematurely due to a condition known as cervical insufficiency. Soon after, my membranes ruptured, and we were told by multiple doctors that the loss of our daughter was inevitable. It was clear that
Starting point is 01:23:02 this was not a question of if we would lose our baby, it was a question of when. I asked what could be done to ensure the respectful passing of our baby and to protect me now that my body was unprotected and vulnerable. I needed an abortion. My health care team was anguished as they explained there was nothing they could do because of Texas's anti-abortion laws, the latest of which had taken effect two days after my water broke. It meant that even though we would with complete certainty lose Willow, my doctors didn't feel safe enough to intervene as long as her heart was beating or until I was sick enough for the ethics board at the hospital to consider my life at risk.
Starting point is 01:23:43 So all we could do is wait. I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child's, or both. For days I was locked in this bizarre and avoidable hell. Would Willow's heart stop or would I deteriorate to the brink of death? The answer arrived three long days later. In a matter of minutes, I went from being physically healthy to developing a raging fever and dangerously low blood pressure. My husband rushed me to the hospital where we soon learned I was in septic shock, made evident by my violent teeth chattering and incapacity to even respond to questions. Several hours later, after stabilizing just enough to deliver our stillborn daughter,
Starting point is 01:24:31 my vitals crashed again. In the middle of the night, I was rapidly transferred to the ICU, where I would stay for three days as medical professionals battled to save my life. What I needed was an abortion, a standard medical procedure. An abortion would have prevented the unnecessary harm and suffering that I endured. Not only the psychological trauma that came with three days of waiting, but the physical harm my body suffered, the extent of which is still being determined. Two things I know for sure. The preventable harm inflicted on me has already made it harder for me to get pregnant again. The barbaric restrictions that are being passed across the country are having real-life implications on real people.
Starting point is 01:25:20 I may have been one of the first who was affected by the overturning of Roe in Texas, but I'm certainly not the last. More people have been and will continue to be harmed until we do something about it. You have the power to fix this. You owe it to me and to Willow and to every other person who may become pregnant in this country to protect our right to safe and accessible health care, emergency or no emergency. No one should have to worry about the life of their loved ones simply because they are with child. Your job is to protect the lives of the people who elected you, not endanger them. Being pregnant is difficult and complicated enough. We do not need you to make it even more terrifying and frankly downright dangerous to create life in this country. This has gone on long enough, and it's time now for you to do your job, your duty, and protect us. And there are so many other names and stories we could recount. You know, in addition to the people who are testifying at the Zorowski trial, there are the two women impregnant, Anya Cook and
Starting point is 01:26:22 Sine Smith Cunningham, who experienced the preterm prelabor rupture of membranes that required surgery in one case and leading one of them to require hospitalization, requiring her to be ventilated. There are the individuals like Taylor Edwards and others who had pregnancies that were not compatible with life and were forced to carry them to term, Deborah Dorbert. And there are just so many circumstances that arose, again, precisely as the Joint Dissenters suggested would happen, about why abortion became necessary and the right decision for these women, given the circumstances of their pregnancies and their lives. And again, like, they told this to the Dobbs majority, and the Dobbs majority just appears to have kind of shrug emoji and insisted, like, we're gonna do what we're gonna do. It's so crazy to think of any other job where like, at your like, okay, it's been a year in this position, let's look at what's happened. Your decision has resulted in the maiming of many women and like has altered the course of many people's lives in a tremendously upsetting and traumatizing way. Keep at it. See you Monday. Like it's just our Supreme Court
Starting point is 01:27:35 justices, like I thought that they were, aren't they supposed to consider the impact of their decisions? Like don't they have, do or do they not have an obligation to think like if we take away something, like I think of DACA too, like, if we take this away, it would have such a profound impact on American society? Or are they purely like, no, it's just all you want is our interpretation of the Constitution? You know, it depends who you asked. I mean, Neil Gorsuch has performatively and proudly proclaimed that he just doesn't care and doesn't listen to people when they inform him about the likely consequences of his rulings. Like he thinks that is like a mark in his favor that proves he's like a real lawyer and a real judge. Yeah, I know, like not exactly a great circumstance. But you know,
Starting point is 01:28:20 this is also what the Dobbs majority characterized as arguments just sounding in the national psyche that they were unwilling to basically consider because they were like, well, sure, right, you're telling us this might happen. Who is to say, right? On one hand, you have like the history, doctors testifying the reality of pregnancy. And on the other, you have the pro-life movements feelings, and they would prefer to do this anyways. And the the other, you have the pro-life movement's feelings, and they would prefer to do this anyways. And the court basically said, we're unwilling slash unable to actually resolve that. To your earlier point, I think one of the things I really like about the joint dissent is that it not only talks about the absence of abortion as an option in times when
Starting point is 01:29:01 there are medical exigencies, they also just note, as a general matter, 45% of pregnancies in the United States are unplanned. Even the most effective contraceptives fail. And effective contraception is not always universally accessible. So, I mean, they just sort of talk like sometimes life happens. And, like, you need an option. And the option isn't always to bring another human being into the world. No, but you can put it in the box. You can put it in the baby. Yes, Lady Safe Haven. I think you needed to be in a different part of this retrospective. You're giving major Lady Safe
Starting point is 01:29:38 Haven happy families midge vibe. That's Amy's whole thing. We didn't cast anybody to play Amy because you know what Amy did not do? Write down her views. She did not take the pen and explain why she was joining the majority in this case. No, she just went along silently. To an earlier point in the Barbie of it all and like just using my imagination. First of all, like. It's very Samuelito of you. What are you? No, I know. Well, a girl can dream. I just can't think of a situation where women are in the majority and have to decide on something and a procedure that affects men's lives. First of all, I can't even think about what procedure that would be. And a procedure that affects men's lives. First of all, I can't even think about what procedure that would be.
Starting point is 01:30:26 And a procedure that would have men have to, in detail, reshare the most traumatic surgery of their lives, maybe like a botched vasectomy or something. A circumcision. A circumcision, maybe. And then have the group of women say like, pull yourself up by your bootstraps. Yeah.
Starting point is 01:30:49 By your jockstrap. Vote Ken. Yeah. Vote. Yeah. You should vote. I just, I just can't even think about even the fact that I can,
Starting point is 01:30:59 you know, an equal procedure that happens only to men, and that women are deciding, like, I can't even use my imagination for that. It may be because like, there literally is nothing equivalent for men, like, literally gestating a whole baby and then delivering it through your lady parts. Like there's nothing like that. So maybe we can turn to the final quote we wanted to end on because unlike the failings of the majority to actually talk about the consequences for women and pregnant people, the joint dissent really ended their writing on that. So would one of you like to read that passage?
Starting point is 01:31:47 Oh, this one's such a gut punch, isn't it? Yeah. With sorrow for this court, but more for the many millions of American women who have today lost a fundamental constitutional protection, we dissent. And specifically, these Barbies and Allen dissent. And not respectfully, which is not the most important thing about this, but it bears noting. I have a question for you all, a legal question. Is the ERA the solution? No, because the Equal Rights Amendment prohibits discrimination on the basis of sex.
Starting point is 01:32:17 And earlier in the Dobbs opinion, Justice Alito for five justices rejected the argument that restrictions on abortion constituted discrimination on the basis of sex. Melissa wrote a fantastic amicus brief arguing that, you know, a better understanding of equal protection would recognize that abortion restrictions constitute a denial of equal protection and discrimination on the basis of sex. But even if you pass a constitutional amendment that prohibits sex discrimination, there are at least five justices on this court who would say abortion
Starting point is 01:32:47 bans, restrictions on abortion don't constitute sex discrimination. I'm less pessimistic about this. I think they would at least have to grapple with the serious argument that there's a new constitutional basis for asserting protection. And I think there's a very good chance they would reject it. But I don't think they can do it by just citing these old 1970s cases, which is what they did to reject the equal protection argument here. They would have to construct the argument anew. And I think that it would be like facially ridiculous for them to try to defend that argument in the face of a newly enacted constitutional prohibition. It doesn't mean they wouldn't do it.
Starting point is 01:33:17 But I'm a little bit less pessimistic about Leah that they would just get there with quite that ease. I think they would have to work really hard. They'd write like two paragraphs instead of one. It's just an unbelievably dismissive rejection of that argument, obviously in Dobbs, but I just don't think they could do that if we had an ERA. What would a successful outcome of the Zorowski trial, this case mean for abortion rights in America? I mean, I know it's Texas specific, but is this really like a useful roadmap for claiming what we've talked about, what we've lost? I mean, everything helps, but this is like stemming bleeding. I don't think this is like
Starting point is 01:33:49 a roadmap for returning to a Capri Dobbs era. I think this is about like actually making sure that exceptions have teeth, but like that's still a prohibition that applies to most people who aren't in a medical emergency. I'll take a different beat on that. This is like maybe me in Malibu Barbie mode. I think there's stuff that will play in courts of law, and then there's stuff that will play in courts of public opinion. And I think a greater part of the energy in the Zoroski trial is actually about public opinion.
Starting point is 01:34:21 I think they are genuinely trying to read some teeth into the exceptions and make the exceptions meaningful. And for the most part think they are genuinely trying to read some teeth into the exceptions and make the exceptions meaningful. And for the most part, they are toothless in any jurisdiction that has them at this point. And Jessica Valenti has said quite a lot in her sub stack about why that is. But I think they're just basically – I mean, this is like narrative and storytelling about what this means and consciousness raising
Starting point is 01:34:43 for people around the country who are like, business as usual, it's totally fine. Like, no, it's actually like this huge deal. Doctors don't know what to do. Women don't know what to do. Pregnant people don't know what to do. And it's just utterly chaotic. And the state has created this landscape of chaos and will not resolve it. And I feel like with that in mind, like, because abortion is majority of the country does believe we should not ban abortion, right? There's like 60%. It is with more of these public opinion, storytelling, narrative things that are happening is and obviously, with the help of your podcast, really undermining the Supreme Court
Starting point is 01:35:27 and showing that this is an unelected group of people who are doing whatever they want, because a billionaire took them on a yacht in Michigan. Or because somebody paid off their credit card debt, Brett Kavanaugh, who did that? Please tell me. I'm dying to know. So speaking of Brett Kavanaugh and this court that came to be, we wanted to end on a note, which is while most normal people would be kind of aghast at what has been happening in the years since Dobbs and the consequences that decision has unleashed, apparently not everyone is. One person is actually bragging about how they did all of this.
Starting point is 01:36:08 And that person also happens to be running for president in 2024. He also happens to be indicted like triply. Yes. That hasn't seemed to dimmed his post-retirement plans for reelection. Same number of indictments as Supreme Court appointments this man received. Who are you guys talking about? So let's play that guy here. I did something that nobody thought was possible.
Starting point is 01:36:34 I got rid of Roe v. Wade. So thank you all so much for joining us. We could not have asked for better guests for this segment. And thank you, thank you again. And we hope to be able to have conversations again in thank you. Thank you again. And we hope to be able to have conversations again in the future. Thank you. It's always a pleasure. I love I love talking to you guys. You guys are so smart. Best in the biz. Mutual admiration. We're all Barbies. Go Barbies. Barbies, all of us.
Starting point is 01:37:01 Huge thanks to John Lovett, Ellie Mestal, Jon Favreau, and is basically anything the physician has made a good faith determination poses a risk to the person's life or health, including their fertility. The case is set for trial in the spring of 2024, since this was just a preliminary injunction. But meanwhile, Texas has already announced it is immediately appealing this order to the Texas Supreme Court. We don't yet know how this case will ultimately turn out, and it could be a model for other similar challenges in other states. But in any event, it is just one part of a broader post-Dobbs fight. But we are grateful to lawyers Molly Duane and Mark Herron at the Center for Reproductive Rights, in addition to the many brave plaintiffs who, as you just heard, shared their stories in an effort to try to protect others from some of the horrors they experienced.
Starting point is 01:38:08 Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw, produced and edited by Melody Rowell, Ashley Mizzuo is our associate producer, audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.

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