Strict Scrutiny - The Originalist Case for Terrorizing Women

Episode Date: February 13, 2023

Leah and Kate talk to Jessica Valenti, writer of the Substack newsletter “Abortion, Every Day,” which documents the rapidly changing landscape of abortion rights in the U.S. after Dobbs. Plus, they highlight a federal court opinion that would allow people facing domestic violence orders to possess guns, and President Biden’s (brief) State of the Union comment about vetoing any national abortion ban legislation. Listen to "How SCOTUS gutted our gun laws," about the Supreme Court's recent ruling that the constitutional right to carry a gun extends beyond the homeListen to "What the Fight After Roe Actually Looks Like," which recapped the first two months of a post-Dobbs worldListen to "Roe is dead. Now what?," which captured our immediate reaction to the Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman. And I'm Kate Shaw. And we are joined today by special guest Jessica Valenti,

who through her substack, which is called Abortion Every Day, has been providing an indispensable and often devastating chronicle of what the end of legal abortion in much of the country means in really concrete, on-the-ground terms. So Jessica, we are so happy to have you with us today. Welcome to Strict Scrutiny. Thank you for having me. So Jessica, you've been a feminist writer for a long time. You co-founded and for many years wrote for the blog Feministing. You've authored or co-authored seven books, including The Purity Myth and Full Frontal Feminism. You've written

for several publications over the years. When and why did you decide to turn your attention to full-time chronicling abortion access after the Dobbs decision? You know, it sort of happened out of necessity, I think. I was writing, because of everything that was going on, I was writing about abortion so much. And obviously, like everyone else, I was so upset and so distressed. And I was trying to just like keep track of everything that was going on. And I just found that I was writing constantly and I was publishing every day. And it occurred to me like, well, this is already happening. Like I'm already publishing every day. I'm already writing about this every day because there's so much stuff. Um, and so that's why I decided to turn it into like a formalized daily newsletter. And to be honest, there was a point like when I

first started it, I was like, well, can this, is this going to keep up? Am I really going to be able to do this every day? Is there going to be enough news? Is there going to be enough stuff to get into? Um, and it's just been more than I can handle, right? Like I'm writing every day and I'm still not getting everything. And so it just felt necessary, I think. And a lot of it was for my own mental health, you know, like you feel so inundated by everything. You feel like you can't possibly keep up and just feeling like I could record something and bear witness to some of this horrible stuff that was happening made me feel a little bit more sane.

It also, I feel like, counters something that Rebecca Traister mentioned on our podcast this summer when we discussed the legal landscape of Dobbs, which is at some point, there was a concern that after one or two of the stories about the consequences of Dobbs, there would be a sense among, you know, legacy media that that story has already been done. And we need to move on to the next story or the new story when this story is still happening and unfolding. Yeah, there's a very, I think there's a very dehumanizing effect that happens, unfortunately, with media, right, there's a very, I think there's a very dehumanizing effect that happens, unfortunately, with media, right, where it's like, well, we've already told this story of like this woman who ended up in the hospital. And we've already told the story

of this woman who was having a miscarriage, who couldn't get the treatment that she wants, like what makes this different? And that's not okay, right? Like these are individual people who are suffering. And I think that that is one of the main things that has been lost in the mainstream coverage and the way that we talk about talking about or acknowledging. And it doesn't just have to be, and this is another reason why I started the newsletter, it doesn't just have to be that women are ending up in the hospital or that a woman might die, right? It's all of this unnecessary suffering that these laws are causing that we just need to talk about and take center stage. Some of what you just said kind of made this clear. But in terms of the format of the newsletter and the contents of the newsletter, do you want to talk a little bit about just like what it typically looks like? So I'm a subscriber,

we will give several plugs over the course of the episode. All of our listeners should be as well. But for folks who are not yet, what does it typically look like? I actually think you're doing an audio version now too. Is that right? And I haven't listened to it yet. But so just tell us a little bit about that. And then I think we want to dive into how you are even getting these stories because that seems really important as well. But first, you know, what does it look like? Yeah, the format of the newsletter is I try to break it down by what's happening by state with legislation with court cases, because so many of these stories are really changing day to day, right? Like abortion might be legal in a

state one day and then illegal the next day, it might be illegal and then the ban is blocked. And so part of it is just like, okay, we need to be really on top of what exactly is happening with all of these cases. And then I'm also trying to keep track of the national stories and the trends. And a big part of something that's been happening with the newsletter is keeping track of anti-choice strategy that I think is really going unnoticed, right? Or not talked about enough in depth. And one of the benefits of writing about this stuff every day and just reading for hours about what's going on is that you can start to see those through lines really, really easily. And you can start to see what exactly they're going for. So like a couple of

months ago, I wrote about this like random quote from the Students for Life president, who said something to the effect of like, we would never want to ban travel for women, right? Like, oh, like, maybe we'll, you know, talk about minors and, you know, not letting minors out of state, possibly with parental permission. And the way she said it, I was like, oh, this is, this is going to be a thing. And then sure enough, and they, Students for Life is an organization that also sort of does draft legislation. Sure enough, yesterday, Idaho announced this bill that they're going to label anyone who takes a teenager, a minor out of state for abortion care as a human trafficker. Right. And so this is sort of like part of their strategy. They start with minors, and then it's going to be parental permission, then you're going to need both parents permission, then you're going to need both parents written permission, notarized, like, you can just start to see what is happening. And so that's the other thing I've been trying to pay really, really close attention to, especially because I think for a long time, those of us on

the left looked at a lot of these organizations and a lot of these people as kooks and sort of ridiculous, right? And sort of silly. And in a lot of ways, they are, but they are also very well-funded and very dangerous and very powerful. And so I wanted to make sure that there was a space to really talk about who they are and what they're doing and what we need to be paying attention to. And I just wanted to emphasize and basically repeat and extend something you just said, which is oftentimes this strategy starts with what sounds like or looks like an exception,

right? Like a special regulation for minors. And then it somehow blossoms into everyone. Like, obviously, this is partially the story of abortion restrictions, where the court reaffirmed the right to abortion while also upholding parental consent requirements. And then you had then-judge Brett Kavanaugh upholding the Trump administration's policy of basically physically locking in an undocumented minor woman to prevent her from getting an abortion. And we see the same playbook playing out now with respect to trans rights, you know, where it starts out with, oh, well, we just want to restrict gender affirming therapy for minors. And then now all of a sudden, people

are like, no, really for everyone. And something similar is happening with respect to contraception, where you had Judge Kaczmarek, you know, partially invalidating the Title X family planning program on the ground that it allowed doctors to provide contraception to minors without their parents' consent. And so you see this same playbook, which had success in the abortion context and is trying to be repeated in the abortion context in the post-op landscape as well. Right. It's a chipping away process, right? And that's

part of the reason that when feminists said they're going to overturn Roe, you're crazy, you're being hysterical, that's not going to happen. When you say they're coming after contraception, I think people are imagining that we're saying they're going to pass a law tomorrow that says birth control is illegal, right? They're going to pass a law tomorrow that says women can't leave the state. They're going to have people law tomorrow that says women can't leave the state. They're going to have like people set up at the border. No, of course not. Like no one is saying that. It is a slow years long chipping away process. It's death by a thousand cuts. And if you create enough restrictions and enough hurdles where no one can actually access the care that is supposedly legal, then they've done their job, right? They don't need to pass some sort of

sweeping law that makes everyone pissed off. Right. Or at the end point, the sort of infrastructure has eroded. And maybe I think this is part of the strategy, the public has become somewhat inured to the restrictions that have been imposed, then the gap between like, you know, full access and whatever they're going to do to completely remove it has been so narrow that it doesn't feel nearly as dramatic as it would if we were doing a ban tomorrow or something like that. And in some ways, we will come back to the State of the Union address. I think we all have thoughts on that. But it was part of the reason I thought it was so frustrating that virtually the only thing that President Biden said was like, I will veto a national abortion ban. It's like, that is literally the floor. That is the sub-basement. That is not. Yeah. But there are many, many things between here

and there that we need to be focused on. And I think it's so important that even early in the conversation, we were talking about contraception as well as abortion because the two are so closely connected. So how are you getting the stories that you are conveying via the newsletter? So, you know, obviously, this is a moment that's very difficult for local journalism. I know it's, you know, obviously, what you are doing is taking and amplifying what a lot of local journalists are doing. Is that sort of what you're doing, just reading local papers everywhere? And how is local journalism in this uniquely underfunded, under-resourced moment sort of

even doing at kind of bringing these stories, which some people want to tell and some people don't. I mean, I don't think some of these stories are not being told because people are making the choice not to tell them, but some are just probably not being told because the institutions that would help tell the stories are simply not there. So how are you getting the stories you're telling? So I am hopelessly and relentlessly online and yes, like looking at local news all day. And, you know, local news has been doing a great job. And I think public media in particular has been doing really fantastic work locally. But there, of course, are gaps and it can be a mixed bag. And I think that one of the things that makes it easier for me to pick out a certain thing in a local story

that I know is the most important is that I've been doing this for a long time. I have a lot of contacts for abortion rights. And so someone who isn't necessarily, even if they're a fantastic reporter, someone who doesn't necessarily have a lot of experience with covering abortion isn't going to recognize that same thing. But yeah, I'm relying on local news. I look at student newspapers, at college newspapers. I'm looking at a lot of conservative blogs, a lot of like blogs for crisis pregnancy centers. Like I'm just trying to go every single place I can. And often like that is where I will find the bigger stories. Like when I reported about how the Alabama Attorney General, you know,

in Alabama, they have this law that says you can't prosecute women for abortions, right? But someone from his office gave like a little quote to some random conservative blog, saying, oh, well, you know what, actually, even if we can't prosecute women under the abortion ban, we can use the Chemical Endangerment Act if they take abortion medication, and we can't prosecute women under the abortion ban, we can use the Chemical Endangerment Act if they take abortion medication, and we can arrest them using that. And that ended up becoming like a huge national story. So I think it is really like trying to find those tiny little things that can get missed really easily. And then the other place I'm finding stories, honestly, is like on TikTok and on social media, right? Like I met a woman on TikTok from Georgia, whose insurance company refused to cover her IUD

because they said it was a sanctity of life issue. A woman in Tennessee whose state representative told her that they could arrest IVF doctors. And so the thing is, a lot of people are having these conversations online, and a lot of individual women are wanting to share their stories. And that's where they are, right, basically threatening to prosecute people who took the medication abortion, which is the most common method of abortion, you so much of the stuff that they're trying to do is behind closed doors. And they really are hoping that people are not going to notice or not care, or that if they target the most marginalized groups first, which is what they've already been doing, right? In Alabama, they have already put pregnant women in jail using the chemical endangerment law. But because those are mostly Black women, low-income women, they are hoping that no one will really give a shit. And for the most part, that has been the case in the past. Luckily, that is changing. But they are really, really hoping that people are not going to notice what they are doing. So maybe we can talk about one story, one other specific story, which helps

make concrete what it means for states to say, you know, we are banning abortion, but we'll make exceptions to save the life and sometimes to preserve the health, you know, of the pregnant person, the formulations often vary. And that's a story of Amanda Zorowski, a Texas woman who nearly died after being denied abortion care. She came forward with a truly horrifying story and ended up being invited to the State of the Union. As Kate already alluded to, we're probably going to talk a bit later about some of the missed opportunities at the State of the Union. But one to note now is the missed opportunity to use, you know, the president's bully pulpit to

highlight a story like hers. And you, Jessica, have covered her story. So since President Biden didn't, maybe we can use our much smaller platform to try and do some of that. So can you tell us a little bit about what happened to her? Sure. So this is a woman named Amanda Zyrowski, who lives in Texas, who is from Austin, I believe. And she was pregnant. She had a wanted pregnancy. She was 18 weeks pregnant when her water broke way too early for your water to break. And so of course she went to the doctor. She was having all sorts of problems. I think they diagnosed her with an incompetent cervix. And essentially they told her, okay, you can wait and go into labor naturally we can wait for um the fetus's heartbeat to stop and then we can give you care or you can be on death's door um

and and then you know we can give you emergency care and that last thing is what happened uh you know she ended up in the icu with sepsis amanda and her husband have talked about this story a lot. Her husband describes her as being like completely incoherent by the time that they were taking her to the ICU, because if you are going into septic shock, obviously, like, you're a mess, you are dying, quite literally. And so it was only at that point that they were able to legally end her pregnancy. And what's been really frustrating, I think, about this, there's been many things frustrating about this story, is that the anti-choice movement sort of responded in two ways. The first thing they said was, well, she's alive, right? The

laws worked. She's alive. She didn't die. There's sort of this thing like, well, what are you complaining about? She's here. And so again, this comes back to this idea of like completely ignoring suffering. And Amanda actually, like she says something, there's a quote from her somewhere, something to the effect of like, losing my daughter was inevitable, but like all of the suffering was not. And that was the thing. And then the second thing that the anti-choice movement is saying, and Susan B. Anthony Pro-Life America actually released a statement when they found out Amanda was going to be at the State of the Union. They said, well, no, actually, under Texas law, she absolutely qualified for an abortion, though they wouldn't call it an abortion, right? They have their own language around this. That's not an abortion. That's healthcare treatment. And she completely qualified.

And this is just the fault of doctors who misunderstood the law. And this is another thing that I've been trying to cover a lot is this has become their new go-to line. Whenever someone comes out with a horror story, it's doctor's fault. It's the hospital's fault. They didn't understand the law. And they're doing this really deliberately because they know once the first reported death comes out, I feel pretty confident that someone has already died as a result of these laws. of saying, look, we told you, we told you these doctors weren't doing their jobs. And it's so insidious and so awful. But that is what's happening. But I am so grateful for Amanda and for people like her who are coming forward and sharing these stories because that's really hard.

That's a personal, terrible tragedy that people have to share with the world in order to what? Have people see us as fully human? It really is a humiliating process that we are asking women to go through. But I'm super grateful for the people who feel like they can come forward, and most people don't. I feel like Amanda's story really illustrates just both how much space exists between language and maybe Susan B. Anthony's interpretation or at least spin on language that says, of course, abortions will be permitted in these medical emergency situations like this, and then the reality of trying to access care under those conditions. There's also, I think, somewhere in Amanda's story is people also criticized her for not just leaving the state

to get care. And she's like, I was literally going into septic shock and I live hundreds of miles from inside a reproductive healthcare desert. Being in the car in the middle of a literal desert as opposed to a metaphorical desert and actually going into full septic shock, I would have died. Same thing if I'm 30,000 feet in the sky because I'm flying somewhere. Like, no, that was never a realistic option. But I do think these kinds of ex-posts, either she played this wrong, her actions were wrong, or the doctors were at fault, are just so insidious and cynical, as you just said. So maybe another place where I think you see these same dynamics play out is how, when it comes to laws that purport to have exceptions for rape in them, in some states, they, you know, and so some states have these exceptions for rape, but how are the conditions that are attached to even qualifying for one of those exceptions being implemented kind of on the ground? No one is getting an abortion under a rape and incest exception. It is not happening. And that is very much by design, right? All of these laws have various hurdles. You know, some of them put time limits, like you have to go get that abortion in the first, you know, eight weeks, which if you're a victim who is coming to terms with something terrible that has happened is nearly impossible. All of them have reporting requirements for law enforcement. Again,

once you have put that requirement in place, the vast majority of victims are not going to come forward because they don't trust law enforcement. And then states like Tennessee, Tennessee's rape exception has something in it that says not only do you need to report your rape to law enforcement, if we believe that your rape claim is false, you will go to prison for three years minimum, and you need to serve 100% of that time. And as we know, this idea of a false report, you can be accused and found of making a false report if a cop doesn't believe you. If you recant your story because your abuser is someone close to you and you're afraid of them, there's lots and lots of reasons that states find women guilty of creating false reports.

And so they put in all these hurdles so that essentially no one is able to actually use these exceptions. And then on top of that, because the penalties are so high for doctors, no one will give an abortion anyway. So there was a thing in Mississippi, a study in Mississippi that showed there wasn't one single doctor in Mississippi who was willing to provide a rape victim with an abortion because the penalties were too high and they were afraid, understandably so. And again, all of this is by design. And that's why it sort of makes me bananas when we allow Republicans to talk about rape and incest exceptions as something they're compromising on, right? Like,

oh, I'm trying to be a good person. I'm trying to be reasonable. I'm softening on this. I'm going to be more moderate. I'm going to put this exception in. It doesn't mean anything. The only thing it does is give Republicans good PR. That's it. So Jessica, are you getting a sense of the kinds of networks that might be cropping up to provide care or transportation for pregnant individuals who need to travel for abortion care? Obviously, reproductive deserts are something that predate Dobbs. So networks have been around for a while, but the need has increased in many places in the wake of Dobbs. Are there particular organizations that you'd direct our listeners to in terms of getting involved or providing financial support? I mean, every single state has an abortion fund, likely multiple abortion funds. And I think that that's always the best place to start. Because as you said, like, these were organizations that were

already doing this work before Dobbs. So they are really well set up. They know the landscape, they know their communities, they know what people need. And those are the people who are doing the best work. Now, lots of states are trying to find ways to stop them. Lots of states are trying to find ways to not let people fund them or to criminalize them. And so it's always good to donate and give your time there. There is such a lack of support in places like Texas. We've seen a couple of Mexican organizations that have started to help women in the US because that's how much we need help. We need women from other countries to help. And then what's been really nice is also seeing all of these online spaces crop up to help as

well. So you have places like Aid Access. Irene Carmon just did a great New York Magazine piece about the women who run the abortion subreddit, and all of the advice that they give out there. And I've started spending some time on there. And it really is unbelievable. Like you'll have a teenager make a put, like, I'm scared, I'm six weeks pregnant, I don't know what my choices are. And all of a sudden, you have like this group of well informed individuals who can swoop in and share information. And that has been one of the optimistic is not the right word, but heartening things to see is, it does feel like women and activists are really coming together to try to support each other through this and to try to help however they can. And so that makes me feel a little bit better about the state of the world. Well, and also that some good can come

from these online spaces that feel like there's so much negativity in them, just like you can have both subreddit and TikTok, you have mentioned as actually forces for good in terms of sharing stories and building community. So yeah, I agree. So obviously, we've now talked about Texas a couple of times. It's really hard not to talk about Texas constantly in this conversation. But we actually did want to ask, and we have, our listeners will remember, we have talked on the pod previously, including in a recent live show with the law professor and Dean Rachel Rabuchet about a case that, Jess, I am sure is very, I know is very on your radar.

So that's the case that's currently pending before District Judge Matthew Kuzmirek in Texas, challenging the FDA's decades old approval of Mifepristone for early abortions. And I'm curious how worried the people that you are talking to and reading are about the prospects of this lawsuit and just kind of, you know, we've talked a little bit about the legal arguments in the case, but just concretely what it would mean for him to side with these plaintiffs who are seeking basically to prevent individuals in every state in the country, not just in the state of Texas, from accessing this very safe, many decades old, extremely widely used early abortion drug. Everyone I speak to who is in the know and who is an expert is really freaking out, is really afraid. And I think rightfully so. However, I'm not seeing that same level of urgency sort of in the broader mainstream space. I don't think a lot of people understand that a decision like this could impact pro-choice states as well.

I think that people really have a false sense of security when they live in places like New York and California, and they don't understand that just because you can't ban abortion in a state doesn't mean you can't ban a method of abortion. And as you said, this is over 50% of abortions. And so it would have this huge impact in pro-choice states. And then women in anti-choice states, we know this is how they're ending their pregnancies, right? They're ordering abortion medication online. This is how they're doing it. And of course, that's the point. And the anti-choice movement knows that. And what feels extra sort of disgusting to me is that we know one of the reasons that we haven't

seen women die from illegal abortions is because of abortion medication, right? Like that is the big thing that has shifted from pre-row to post-row, is is because of abortion medication, right? Like that is the big thing that has shifted from pre-row to post-row is that we have abortion medication, self-managed abortion at home is actually very safe. And so when you take that away and all of a sudden you have desperate women around the country, we're going to see a really scary impact. And so, yeah, I think, I think everyone who understands the stakes and who is, you know, really involved in abortion rights understands how bad it is. But I think the vast majority of people don't. I just want to, again, for the sake of clarity, expand on what the

plaintiffs are asking the court to do to make clear why, as you rightly say, this is going to affect the entire country, including if you live in a state where abortion is legal. What the plaintiffs are asking the court to do is something no court has ever done before, which is to revoke the FDA's certification and approval of a drug as safe and effective. And that drug is mifepristone, which is one of the two drugs used in medication abortion. Now, we also know this judge, Matthew Kuzmierik, loves to issue something we've talked about before, nationwide injunctions. So if the plaintiff prevails, it seems like he would revoke that certification effective nationwide. And that would prevent, you know, the prescription approval of doctors, you know, giving mifepristone for abortions anywhere. So again, doesn't matter if

you are living in a state where abortion is legal, you know, if he revokes the ability to prescribe mifepristone nationwide, that means doctors wouldn't be prescribing it anywhere. Now, would this end medication abortion? No, there could be some off-label use of miso, which is the second drug in the two-drug medication abortion combination, and it is possible to take more miso in different dosages to induce a medication abortion without mifepristone. But that is more painful. You know, it's still safe, but it's not as, like, there's a reason why mifepristone is part of the recommended course for medication abortion. And again, this is a district judge that has attempted to require

the Biden administration now twice to keep the Trump administration's remain in Mexico policy. This is the judge that invalidated partially the Title 10 family planning program. This is the judge that freely cites, you know, Justice Alito's dissenting opinion in Bostock, or Justice Scalia's dissenting opinion in Lawrence v. Texas, which upheld the right to consensual same-sex sexual intimacy between adults. I mean, this is the judge who has been asked to effectively give Republicans a partial nationwide abortion ban. And this is also why I hate all of the discussion about, well, they're not trying to get a nationwide abortion ban.

It's like, well, sure, they're not introducing that bill in Congress in those terms. But guess what they're doing in the District Court of Texas? They're asking the most powerful man in America to effectively give them a partial nationwide ban on abortion. It's infuriating. It's infuriating. It's infuriating that people are not talking about it, right? Like it is a national ban because that's what it is. But it is very much like every single other thing that they do, which we were talking about, which is a chipping away approach, which is not saying outright, we're going to ban this. We're going to ban that.

We're going to stop travel. We're, you know, they just do it. They just do it. And then they say, what are you talking about? We didn't do that. Like, it's just like this national gaslighting. The meanest, worst thing you can do is to accurately describe what they are doing. Like, that is just deeply unfair. It's out of bounds. Right. Exactly.

Exactly. So we got into this a little bit, I guess, already twice in talking about the, or alluding to the State of the Union, but I guess we should come back to little bit, I guess, already twice in talking about the or alluding to the State of the Union, but I guess we should come back to it now. You know, what do you think the Biden White House should be doing both in terms of rhetoric and focusing attention, but maybe also some substance, you know, to protect abortion access? I mean, at this point, I would just settle for like a little bit of fucking energy around it right like i think that was the hardest thing about watching the state of the union and you know he had so much energy around certain issues and then you know not only was abortion rights only given four sentences it was under 30 seconds he almost seemed to like like shrug out the words there was

no the audience obviously everyone get the standing ovation and everyone really cares about this. I just don't think that he cares as much as he should. This is not a huge issue for him. That is what I think. And I just would like to see the White House and every politician treat abortion like the very popular issue that it is. Americans overwhelmingly support abortion access, and they tip around and talk about it as if that's not the case, as if people are split, as if this is super controversial. It is not. Americans are very, very clear and have been for decades

about how they feel about legal abortion. And we are giving Republicans such a gift when we are on the defensive, right? And I think that is the biggest thing that has really been on my mind. That and talking about the stuff that we've been talking about here, about how exceptions aren't real, right? About how rape and incest exceptions do not work, right? Like, I would love to see Biden come out and say, like, hey, show me one rape victim that has been able to access an abortion in any of these states. Just a little bit of energy and consistency, I think, would be nice. And then, you know, of course, Biden in the Senate, like, there are things that they can do. And I was glad to see the Democrats finally start to,

you know, think about ending the Hyde Amendment. Like, that's one of the most important things. But there are all of these other ways that they can at least try to protect us. They can increase digital protections for private health data, increased regulations on crisis pregnancy centers, which are getting more and more money across the nation. There was just a story in The Guardian about a Kentucky crisis pregnancy center. A nurse who volunteered there came forward and talked about how they were using expired disinfectant on vaginal probes. When she went to the state board, the state medical board, the state nursing board, they decided to take no disciplinary action because the regulations around crisis pregnancy centers are so loose. Meanwhile, if you're an abortion clinic and your

hallway is like six inches too narrow, you can get shut down. So there's all of these like little nuanced things that they can be doing. But the biggest thing for me is that rhetoric is that like really owning the issue. Voters came out in the midterms and showed show them abortion is a winning issue, like treat it like it is. Yeah. And just to go back to something you said at the beginning, Jess, I think it is not like the ask that you're making here is like for Biden to get out on the far left of his party or something, right? Like Joe Biden likes to be in the middle of Democratic Party, right? That we sort of know.

And guess what? What you were saying is the data shows us abortion support is like a centrist Democratic issue. This is something that would not require any new ground to be broken. It really would just be to align what the White House is saying with what the American people, not just Democrats, the American people, broadly speaking, already think and want. I too can't get my head around why we heard so little at the State of the Union and just kind of in general from the White House. It feels like it could be part of a don't be crazy, be normal, general platform. Don't be crazy and be normal, right? General platform, right? Like, don't be crazy

and like force people to like needlessly suffer and like risk death. How about we let people get medical care? Like that's a normal thing to do. No, that's right. There's nothing radical about it. And all you have to do really is explain what is happening on the ground, right? And like really to have some awareness raising going on, I think would go a long way. You have states like Tennessee, where like 85% of people support, you know, rape and incest exceptions. But then you look and a vast majority of people in Tennessee don't know that their state doesn't have rape and incest exceptions. Some people even think a good proportion thought that abortion was legal, right? And so just having half of them talk about

it every single day, talk about what the laws actually are, what they really do. People do care about this. And I think, again, so much of what Republicans are trying to do is do all of this under the cover of night, try to make sure that people don't understand what is really going on and what their laws really do. Just shining a light on it, I think, makes a huge impact. Yeah. So just in the interest of seeing some connections across different areas of law, I wanted to draw our listeners' attention to a recent Fifth Circuit decision, Rahimi v. United States, that is a Second Amendment decision that kind of exemplifies this. The last term of the Supreme Court was basically the originalist case for

terrorizing women. And Rahimi takes the Supreme Court's decision in Bruin and uses it to strike down a federal law prohibiting individuals under domestic violence restraining orders of protection and prohibits them from possessing firearms. The Fifth Circuit said that law is unconstitutional. The decision is like both a stunning and terrifying illustration of the consequence of the method of interpretation the court announced in Broon. Basically, gun laws are only okay if they look like historical gun laws. So if, say, male lawmakers in the 1780s or 1860s didn't think there was a need to pass laws disarming violent abusers. And gee, wonder why that might have been. Like our elected representatives can't

pass those laws today. It's like, you must determine women's rights today by yoking them to the time when women had no rights. And guess what? Like that results in women having no rights and surprise, you know, sorry, ladies. And this is an example, Leah, of you being wildly unfair by describing in accurate terms exactly what the Supreme Court's opinion says, because this is not our gloss on it. Literally, this is what the opinion says. And this case is just such a perfect illustration of how dangerous the method is. Because the data on abusers with firearms makes just an unanswerable and overwhelming case for how important these laws are, right? Like, obviously, every month in this country, women are shot and killed by their

partners. There is airtight research showing that domestic violence victims' risk of being killed by their partners is five times higher if their partners have guns. But what the Supreme Court said in Bruin is like none of that matters. It doesn't matter if a particular law like one that disarms domestic violence abusers is 100% certain to save thousands or tens of thousands or even say hundreds of thousands of lives. All that matters is whether a gun law today looks like historical gun laws. And if it doesn't, doesn't matter how imperative it is, no matter how many lives it will save, it is off limits.

Like that is literally what the Supreme Court says in the Bruin case. And this is the result. And I think the Supreme Court probably didn't expect it would have to take another gun case so soon after the Bruin case. But I think when a lower federal appeals court strikes down a federal statute like this one, it's almost inevitable that the Supreme Court will take it up. And they're going to have to decide whether they're going to green light this kind of application of their method or whether they're going to pull back. And I genuinely don't know. I know that Thomas will say this is the correct application. Alito and Gorsuch. Alito

and Gorsuch will as well. And I genuinely don't know what Kavanaugh and Roberts and Barrett will say about this opinion. But I think we'll find out. If Brett Kavanaugh invalidates this federal law, he'll write a concurrence reminding us that he's a really nice guy and hires a bunch of women law clerks. So don't worry, Kate. We can look forward to that. Right. Okay, so to pivot for just one moment to a piece of good news that broke the morning that we were recording. So as of today, Dale Ho, Julie Brickelman, Natasha Merle, Nusrat Chaudhry, and many other nominees advanced in

committee. So these are federal judicial nominees, some of whom have been sitting in committee for months and months and months. They are now out of committee. Hopefully they will get swift votes on the Senate floor and be confirmed to the federal bench soon. So that is a great development. So Jessica, can you share with our listeners or remind our listeners how they can support your work and your Substack? Just sign up. Just sign on up. It's jessica.substack.com. Honestly, the best way to support the work is with a paid subscription. It's usually $5 a month through the end of the month. It's $4.25 a month. Support it by subscribing, but read and share. I think that's the other thing that I have been really happy to see people doing is sharing not only my newsletter, but sharing other abortion

news, really not letting it die from the national conversation and from family conversations and community conversations, right? And just relaying that sense of urgency and keeping it top of mind for people, I think is the most important thing that we can do. So listeners, heed Jess, subscribe to the Substack. And Jess, thanks so much for taking the time to talk to us today and for all your work, ensuring that these stories are being told and are being heard. We are very grateful. Thank you. Before we go, because it's been a little while since we've really, you know, checked in on the Supreme Court in general terms, maybe let's do a little bit of some court culture, but also some developments both in and around the court. We should say

the court has been on kind of a crazy long winter recess. I don't remember them taking just like- But this always happens between the January and February settings. Is it this? It feels longer than, I don't know, maybe just like the dread of what is coming in February. It seems interminable. But anyway, so it has been a long winter recess. But on our next episode, we will turn back to previewing the cases that they will consider in February. But right now, as I said, we'll spend a little time highlighting a few other developments kind of around and outside the court. So Leah, you want to start us off? So I wanted to take a beat and highlight a cert petition, which is a request that the Supreme Court actually hear a case, which we don't usually do, but I wanted to

make an exception here. And this is a cert petition for a case captioned as Glossop versus Oklahoma. And if the name Glossop sounds familiar, that's because this person has been before the Supreme Court. It is Richard Glossop from the case of Glossop versus Gross, the court's major Eighth Amendment case that announced a standard governing the legal challenges under the Eighth Amendment case that announced a standard governing the legal challenges under the Eighth Amendment to states' methods of execution. And the decision cleared the way for Mr. Glossop's execution, which has been rescheduled eight times since 2015. Now, Glossop has been on death row for 24 years, and several of those reschedulings have come about because of the facts of the underlying conviction.

In particular, it is undisputed that another person, Justin Sneed, who was also the main witness against Mr. Glossop, it is undisputed that Sneed was the person who murdered Barry Van Treese. Now, Mr. Glossop was found guilty of hiring Sneed to commit the murder based on Sneed's testimony. As an aside, you know, listeners, would you care to venture a guess about who wrote the opinion that cleared the way to execute a possibly innocent man? The author of the opinion is, of course, Sam Alito. Clarence Thomas also would have been an acceptable answer in light of last term's decision in Shin versus Ramirez, which cleared the way to execute another possibly innocent man. Although in Glossop, there's a Justice Thomas concurrence that's basically like, I'd probably be okay with torturing someone to death, but I digress. I think it is possibly the ghastliest Supreme Court, not ghastliest, just like it is a ghastly,

vile piece of rhetoric. It is just the Thomas opinion is truly shocking. So I don't know if I'm recommending our listeners go read it. But I guess this is a trigger warning if they decide they're interested based on your discussion and go just be warned. Sorry, go on. No, Glossop is also the case in which,-retired Justice Breyer wrote the famous dissent, announcing that he and Justice Ginsburg, who joined him, wanted briefing on whether the death penalty was constitutional at all. Now, that was the previous case, which was about the state's method of execution. The current case involves a challenge to Oklahoma's rules that have prevented Mr. Glossop from introducing evidence and having a court consider evidence of his innocence, and specifically the Oklahoma court's refusal to consider evidence that Oklahoma illegally withheld evidence that would have bolstered his claims of innocence.

So, as I suggested, the only evidence linking Mr. Glossop to the murder was the testimony of Justin Sneed, the undisputed killer who said Mr. Glossop hired him. But the state's investigators fed Sneed Mr. Glossop's name more than five times. They also suggested to him that his cooperation would result in lenience. And on top of that, Sneed attempted to recant his testimony before and after the trial resulting in Mr. Glossop's conviction. This includes writing a handwritten note in which he asked his lawyer, quote, do I have the choice of recanting at any time during my life? And a second note that said his testimony was, quote, a mistake. Neither of these things were ever shared with Mr. Glossop's lawyer. It's so bad that set of facts that the Oklahoma Attorney General announced he was directing an independent counsel to review the conviction and death sentence. This happens on the heels of a

kind of ad hoc group of Republican Oklahoma state legislators previously calling for an investigation that was then conducted by the law firm Reed Smith. That investigation ultimately concluded that a jury that was presented with all of the evidence would not have found Glossop guilty. And there's an interesting array of amicus briefs in the case that are supporting Mr. Glossop's request that the Supreme Court hear the case, one from an Oklahoma legislator who describes himself as a general supporter of the death penalty, but not in this case. And another from a group of prosecutors.

So I just wanted to draw attention to this case, which could make its way onto the court's docket, or at least it seems like the court is entertaining a request about whether to hear something about this case or do something about it. I'm so glad you highlighted that. One other case that I feel like this is a development about a Supreme Court case, but in the lower courts, should we mention the rehearing decision in Moore versus Harper? Yeah, definitely. Okay, so this is we will maybe be brief in the overview. Rick Hassan had a good piece in Slate last week, kind of walking through the events. But basically, this is the independent state legislature theory case that we've talked about a number of times on the show. The court heard arguments in December and is now considering the case. But basically, during the November elections, in which Democrats outperformed expectations nearly everywhere, North Carolina was actually one of the North Carolina Supreme Court, which had previously had a Democratic majority. So there is now a Republican majority on that court. And the state legislature, also Republican, which had lost in the state Supreme Court and was the party that asked the US Supreme Court to hear the Moore case, has now gone back to the state Supreme Court and asked that state court, newly

constituted, right, with a new Republican majority, to rehear the case about the constitutionality of the state map that is at issue in Moore. So the case is pending in the U.S. Supreme Court, and they are asking the state Supreme Court to rehear the underlying case. Now, if this sounds convoluted and unusual, it is. It's very unusual, I gather, for that court to rehear cases at all. It is just unusual in general for a state court to rehear a case while the Supreme Court is considering that case. And especially to rehear a case that was recently decided. And they also agreed to rehear another voting rights case that was also not favorable to the legislature. It's like new YOLO court rising in North Carolina. Absolutely. Right. The ask and then the fact that it was successful. So, yeah, so obviously we should keep an eye on that court in general.

The fact that they took these cases is in itself really striking. But it's also an interesting indication, I thought, that the Republican legislature in North Carolina is concerned that they might not get as big a favorable ruling out of the U.S. Supreme Court as they were hoping to. And so they would like to moot the U.S. Supreme Court case by winning in the state Supreme Court. And I guess I'm like, I had sort of mixed reactions to saying this. Leah, I'm curious what you thought. Obviously, you and I have written about the independent state legislature theory. Moore is a case that is very scary in certain ways in that it gives the U.S. Supreme Court the opportunity to potentially embrace some version of this theory. And it's an incredibly dangerous theory. So on the one hand, keeping out of the Supreme Court a case that is a potential vehicle to embrace a version of this theory is good in general. On the other hand, if this is a case where the theory was

less likely to succeed or to succeed in big terms, and taking this case away from the court opens up the possibility of a future case, maybe a bigger, more kind of maximalist in framing case coming back to the court, or potentially coming back to the court on some timeline that means, you know, the court is going to decide whether to embrace this theory in the context of a presidential election, maybe in a case involving not just a map, but an attempt to actually appoint electors by a state legislature. You know, who knows how the case arises. But I guess I don't know. If this case is mooted, is that a bullet dodged or the opening up of something even more dangerous down the road? I mean, I'm curious what your reaction was.

Yeah, I really don't know. You know, obviously, my first choice would be ensuring this court never has a case to possibly embrace independent state legislature thing. I don't think that is going to be granted. You know, this court has shown an interest in the theory and carving out some rule for the federal courts, the Supreme Court to play in overseeing, you know, state courts interpretation of state constitutions and state statutes governing federal elections. And I also agree that putting it off until an election is underway could be extremely chaotic. And if you recall from the oral arguments in this case, you had some justices expressing dissatisfaction that the advocate representing the North Carolina legislature had not framed their argument in aggressive enough terms and wasn't frontally attacking the Supreme Court's precedents that allowed, for example, a governor to veto a state law regarding federal elections and things like that. And so I really don't know

kind of where my intuition is there. Yeah. Well, we'll keep an eye, obviously, on developments in the North Carolina Supreme Court. Another state that we are keeping a very close watch on, as we've mentioned now a bunch of times on the show, is Wisconsin, where the judicial primary is coming up. That's going to be February 21st. And I don't know if you've noticed this this week, but lots of people beyond us are paying attention to this race. So there has been major ad buys across the state. And I watched a couple of these ads online this week, and it's pretty interesting. So some of them at least are explicitly discussing abortion. So one of the candidates, Janet Protasewicz, who's a lower court judge, basically says in one of her campaign ads, I will act to protect fundamental rights like the right to abortion. And I couldn't recall another state judicial race in which there was such explicit engagement with a question like this, like abortion. And I also thought it was really striking that at least in the ads that I saw from one of the conservatives who's running, so this is a nonpartisan open primary, but Dan

Kelly is one of the conservative candidates, and he cut an ad that was like completely silent on abortion. So it is interesting to me that there is a very different interest in explicitly engaging with the question of abortion by different candidates running in this race. So it's an interesting reveal of, I think, where these candidates think Wisconsin voters are. So this is this open primary where there are four candidates running, and then the top two advance to the April general election. So I'm going to be very curious to sort of see as those campaign ads continue to roll out, kind of how explicitly these issues are engaged. Yeah, I mean, that pattern, you know, with one candidate indicating support for the existence of a fundamental right to make decisions about your body, and another candidate saying nothing is very consistent with the trend that Jessica was just

talking about, you know, that she's observed in several different locations on this issue. So we've already mentioned President Biden's brief mention of doves and abortion in the State of the Union. In that speech, he also kind of completely ignored the Supreme Court. At the speech, there was a pretty large turnout for members of the court. Chief Justice Roberts was there, as well as Justice Kagan, plus the newbies, meaning Justice Kavanaugh, Justice Barrett, and Justice Jackson. Retired Justices Breyer and Kennedy also appeared, which I think you thought was maybe the first time since the 1990s that a retired justice has been there. I think that's what I saw. Justice White in the 90s was the last. I couldn't remember seeing

any retired justices there, but it's not the first time, but it is unusual. Yeah. Also wanted to give a shout out to Justice Kagan's sartorial choices. The robe that she was wearing had some cape-like attributes to it. I know. I feel badly talking about her cape without Melissa here. Because Melissa, remember, I don't now remember the exact event. It was something around the death of the queen. I can't remember if it was her actual funeral or some adjacent event, but the Duchess of Sussex, Meghan Markle, wore a gorgeous cape-like dress. And Melissa took to the airwaves and suggested that the justices consider doing something similar. And it sort of seems to me like Elena Kagan might have been listening and actually might have been communicating back to it. I would take fashion advice from Melissa.

Obviously. Yes. Clearly. Although I have to say it seemed kind of capelike. I just couldn't really tell how much of a robe it really was. And I did wonder, in addition to wondering whether in fact she was listening to Melissa's advice, whether she was in some subtle way communicating. I mean, it is, if you think about it, pretty weird that they come to the State of the Union in their wizard robes, right? They literally are walking and communicating to all like, we wear these robes, we do something

different from the rest of you. And the way you know that we do something different is because we wear these robes. And whether she, there was a little part of her that was like, no. No, we're not. No, we don't. No, we're not. And it was just a subtle communication of that quite profound point about what it is this court is doing. So that was- Next year, she'll show up in a white pantsuit. Oh, man. And we will really know she's listening to the pod if she does do that. So please, Justice Kagan, make this happen. Yeah. And the shirt under it will say, YOLO Court or No Law, Just Fives. And again, that's how we'll know.

We also should, just in other lighthearted news, note that Justice Jackson is the latest justice to apparently pen a book deal. So she is writing a memoir. It's going to be titled Lovely One with Random House. I didn't see any reporting about how much she sold this book for. I'm remembering that Justice Barrett reportedly sold her book for something like $2 million a couple years ago, or I can't remember now, right after she joined the court, I guess. So presumably Justice Jackson got something in that neighborhood. And I'm looking forward to it, honestly. Justice memoirs, I mean, I'm really not sure what Justice Barron's will sound like, but I will say that Justice of the Mayores, My Beloved World, for folks who haven't read it, is a genuinely excellent and beautifully written

book. So highly recommend that. And I am looking forward to Justice Jackson's. And finally, the Washington Post reported that over the last four years and behind closed doors, where all of the fun happens, the justices have been debating an ethics code for themselves. They've been debating, you know, what ethics code to impose on themselves, since apparently Congress won't do it for them. But surprise, in those discussions and debates, they have failed to reach agreement among themselves, like about whether their significant or others or spouses can participate in coup adjacent activities that might come before the court that they failed to reach consensus on, which makes you wonder

who the holdouts might be. I want a report from the marshal's office that basically says we tried really hard. And Michael Chertoff will sign off on that. He also examined our internal processes and decided we did great. We just couldn't come up with anything. So time to move on. Exactly. I can't think of anything else they could have tried.

You know, but hey, the court did try to make an ethics code. And really, that's all you can ask. I'm satisfied by this. Give it the old college try. Way to go. Nice work, guys. So I think we'll leave it there. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizuo,

Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth. We will see you next time.