The Daily Beast Podcast - Texas’ AG Used This Insane Reason to Keep Abortion Illegal

Episode Date: November 7, 2021

In this bonus episode of The New Abnormal, lawyer Linda Hirschman, author of “Red State,” tells Molly Jong-Fast about the 1850 law that is “chillingly” similar to the Texas anti-abortion law��and why the Supreme Court’s ego might just stop it.  Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hello and welcome to another bonus episode of The New Abnormal, and we thank you so much for being here. Today we have an extra special guest with Linda Hirschman, who's of course a lawyer and a New York Times bestselling author and cultural historian. She's presently serializing her new novel, Red State, and today we're going to talk to her all about SPA and what's going on in the Supreme Court. Welcome to the new abnormal, Linda Hirschman. Thank you for having me. In my mind, it's funny because Jesse and I were talking on Monday, We talk 500 times a week as we book this podcast, which is most of what we do in the world. He said to me, what's going on this week?

And I said, it's all that matters is the Supreme Court this week. And he was like, what are you talking about? Yeah, you said, I don't know what you're talking about. But it really matters. And I'm going to set the stage for you. And then you, because you are actually an expert in this can really explain to us what the hell is going on. But on Monday, the Supreme Court did something they almost never do. Right. They did it last time with Bush versus Gore, which is they pulled up a case because they had to address it.

Right. Let's talk about this case. There has been some talk about why they pulled it up. And part of the talk is because they took so much heat for deciding the issue of the availability of abortion in the state of Texas on a shadow docket in an interim order. The bill is called SB 8. It was a bill that made abortion. illegal in Texas. The Supreme Court let it go, 5-4 on the shadow docket, August 31st, September 1st, you could no longer get an abortion basically at all in the state of Texas unless you figured it

out within the first two weeks of being pregnant. Right, while you were still putting your calls back on. Right, exactly. The thing about this law that is extremely unusual was it made, it deputized civilians to enforce. Right. So SP8 looked weirdly like ordinary civil actions, people sue for defamation of character and all kinds of things like that. And so it had a weird, you know, private people who are unhappy with something that's happening in the world and that's illegal do get to bring civil lawsuits. So the SP8 looked weirdly like a normal civil lawsuit, but of course it wasn't. It was a concoction by someone that Elena Kagan called in her inimitable New York way some genius. Okay, footnote, I heart New York.

Anyway, and the genius, whose name is Mitchell, had cooked up this scheme whereby the state of Texas would not enforce its own civil law. or criminal law, only private plaintiffs would be able to enforce it. And Mitchell thought, by doing that, he would make it impossible for the abortion clinics to get a federal court to stop this law because there would be no defendant. You couldn't sue the state of Texas because Texas said, not me. Nobody in here but us chickens. So that was the scheme. To a lot of people's astonishment and horror, the Supreme Court of the United States allowed the state of Texas to defend itself in the first round of litigation last summer by saying you got the wrong defendant.

And therefore, the law goes into effect. Well, what does effect mean? It means that because the law provides that anyone can sue someone who provides their aids in providing an abortion for a minimum of 10,000. thousand dollars of damages in each case and many other interrorum kinds of things because the law makes it almost impossible to defend yourself against this action. The abortion clinics were scared out of the business and they shut down. And so the only people who could get abortions in Texas since this Supreme Court let this law go into effect were people who realize that they needed an abortion within six weeks, which is almost nothing.

So the Zubin Court took a fair amount of heat for doing this in the dark of night and the shadow. Right. And in fact, their polling showed them at about 40%, which was the lowest they have been polled since Pew started polling them in 2000. So they didn't like that. Right. And then the four of them, Alito, Kavanaugh, Amy Coney-Barritt, and Breyer went on an apology tour. and gave lots of lectures about how mad they were that the media was holding them to scrutiny and said they weren't, you know, that was a sort of interesting sidebar. But continue. It is a sidebar, although it's not entirely irrelevant. So, you know, it's interesting because, of course, their life tenure. But they have, one of the things I know, Molly, from my book about Ruth Peter Ginsburg and Sandra Day O'Connor is how.

how much investment the life-tenured Supreme Court justices have in the institution of the Supreme Court. So they want to do, in my opinion, the conservative appointees want to do terrible and in many cases legally and defensible things, but they don't like paying the price for losing the prestige of the Supreme Court of the United States. So there's a conflict. And I think that this matters because they are very invested in their prestige and in their power. The SB 8 directly challenged the power of the federal court system, and particularly the Supreme Court of the United States. Yeah, yeah, you can't get us.

There's no defendant here. So what happened in the interim, because the Supreme Court had said the clinics couldn't sue to stop it. the United States Department of Justice intervened, which is a good thing. And Elections Matter, has anyone noticed? And there were two cases. And after the United States intervened and the district court in Texas said that they had standing and could sue the people, the clerks that they were suing and to stop taking these private cases.

And the most conservative court of appeals in the country, the Fifth Circuit, stated, and the Supreme Court stated. So at the end of the day, both the clinics and the United States were stopped from stopping the bad abortion law in Texas by the Supreme Court. But immediately after cutting off the U.S., the Supreme Court said, but we'll hear argument in it like tomorrow. And that argument happened on Monday. And it was an oral argument.

I listened to a bunch of it, and it seemed to me that they don't like the idea of this vigilante civil dependence. What they don't like is the attack on their power. Do not like the direct attack on their, and the scheme is designed to thwart the Supreme Court of the United States. So I actually heard two things I never thought I'd hear in that oral argument. One was John C. Calhoun, the representative of the rebellious states of the South before the Civil War. The state rights advocate arguing on behalf of slavery.

I never thought I'd hear his name in the Supreme Court of the United States. Brian, not a good guy. Not a good guy. Not a good guy. And the second name that I heard was an equally bad guy, and that's Orville Favis, the governor of Arkansas, who stood in the schoolhouse door to stop the federal government from enforcing civil rights. So when you hear those names in an argument in the Supreme Court, you know that the Supreme Court has figured out that a, Southern State is trying to nullify federal law.

And that's what they don't like. And the worst thing that happened from the Supreme Court standpoint is the Southern State tried to get to nullify the decision of O.V. Wade in the state of Texas by stripping the Supreme Court of its jurisdiction over this dispute. And that's what emerged from the oral law. argument on Monday. And that's what has led a lot of commentators to say they think that at least two of the five of the six conservative justices will flip and make a majority to strike down SB 8. This is not because they love abortion rights or because they think that women are citizens.

They see it as a threat to their power. So I was listening to the argument, of course, I didn't only listen to some of it, oral arguments in Supreme Court constitutional cases are like pornography to me. I could not turn it off. And I'm so glad that I listened because what I thought everybody was listening to see what the justices were going to say, so that it would be like an indication of what they were going to do. But I know they regard themselves as the American nobility. And this law threatened them. So I was pretty clear that there would be enough votes to overturn it, especially since in a minute, they're going to have a case to strike down Roe v. Wade anyway. So they don't need this case. Right. But something so interesting, Molly, happened in the oral argument, which if you're going to

bring a suit in the American legal system, you generally have to have an interest in the outcome. Okay. So I can't sue you because you decide to wear white shoes after Labor Day and before Memorial Day. I can't do that because I have no legally recognizable interest in how you act. Right. And that doctrine, which seems very obscure, came up in the argument. So one of the justices, I think it might have been Breyer, asked the lawyer for the state of Texas, what interest do the people that the Texas law, that the Texas law, law has authorized to sue have in stopping women from getting abortion. Okay, SB8 has authorized everybody in Texas and maybe people outside of Texas. We don't know that yet. To bring these civil lawsuits for damages because women have gotten abortions. What business of theirs is it? Justice Breyer asked the Texas Attorney General. And the Texas Attorney General said, their interest is their outrage. Every person in Texas, and maybe every person in the United States,

knowing that some woman is getting an abortion in Texas can be outraged by knowing that. And that's enough morally outraged, he continued. And that's enough of an interest to allow them to invoke this terrifying prospect of these huge damages with no defense against them. to stop the women from getting abortions because they are morally outraged. And then, not satisfied with giving me an entire op-ed, putting an entire op-ed subject right in my lap, the Attorney General of the state of Texas gave an example of whom I feel so outraged. Right. A conservative man might have been asked by a woman he knows.

whether she should get an abortion. And she might have the effrontery. She might be so uppity that even though he tells her not to get an abortion, she disobeys him and goes and get one anyway. Molly, I just delivered a book about abolition. So I've spent the last five years in the period before. the Civil War and in the grip of the American system of enslavement. And I recognized it right away. She disobeys her master in their scenario. And we're going to bring the full power of the state

to punish her and anyone who provides her with an abortion or a ride to the abortion clinic. We're going to punish them. Right. And what does this remind you of, Linda? It reminds me of the Fugitive Slave Act of 1850, which was the product of John C. Calhoun's Southern Strategy and the fertile brain of Henry Clay. And it was passed in 1850. And it said, we're going to set up a complete legal system, exactly like Texas, set. up a complete legal system in order to enable private people to punish the Uppity women. In 1850, the federal government, which was in the grip of the slaveholder-loving, Democratic, then-democratic party, set up an entire legal system in order to enable private parties to punish the slaves for their effrontery in running away from slavery and making it to free soil.

The systems are identical. In the case of the Fusional Slave Act, it was the federal government that was in the grip of the white supremacy slaveholders. In the case of the Texas law, it is the state of Texas that is in the hands of the people who would oppress women seeking equality. the schemes are identical. The only difference is that Texas felt they had to pay people to punish the women. And in the Fugitive Slave Act, the federal government relied on the enslavers, the slaveholders from the South to pay slave catchers. Does it sound familiar? That they sent to the north and they would identify the slaves and drag them to a federal court that looked exactly like the system that SB8 sets up. And then those federal courts would send them back to enslavement. There was no

defense against it, just like there's no defense against the abortion law and SB8. It is chillingly similar. Yeah, that's so fascinating and also so incredibly depressing. Mali, in the end of the day. It took 10 years. But the site of those slave catchers, dragging people who had sought asylum in Boston and Milwaukee, places back to the slave south, did a lot to bring about the civil war. Yeah. That's so interesting. Thank you so much, Linda, for joining us. I hope you'll come back. I would be delighted to come back. Just whistle. On that note, we'll wrap this episode of the new Abnorma. from The Daily Beast.

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