The New Yorker Radio Hour - The Insidious Procedural Traps of the Texas Abortion Law

Episode Date: September 14, 2021

The new Texas law Senate Bill 8 effectively outlaws abortion in Texas, violating constitutional protections on reproductive rights. Yet the Supreme Court is in no rush to review it. The law professor and staff writer Jeannie Suk Gersen speaks with Leah Litman, a law professor at the University of Michigan. They examine the novel ways in which the law insulates itself from judicial review. “It seems like the Texas law is an onion, with layers upon layers of unconstitutionality,” Suk Gersen notes. “It’s basically saying to the courts, ‘We’ll do your job for you. You are cut out of this.’ ”    Plus, Jia Tolentino talks with the pop musician Caroline Polachek, as the singer-songwriter gets ready to play her first live concert since March of 2020, for the biggest crowd of her career. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. This is the New Yorker Radio Hour. I'm David Remnick. For so many years, the Christian right and other anti-abortion constituencies made overturning Roe versus Wade their goal, their endgame. And with three appointments to the Supreme Court, Donald Trump delivered to those voters. Even still, overturning Roe flat out is a line that the court may not be ready to cross. Instead, anti-abortion forces have devised a strategy of undermining Roe. The Texas abortion law, Senate Bill 8, is already being studied by other states, and the Supreme Court is reviewing a separate law in Mississippi that also bans abortions before fetal viability.

It seems entirely possible now that American women could lose reproductive choice in nearly every Republican-controlled state, Roe or no-Roe. Jeannie Sook Gerson is a professor of law at Harvard University and a contributing writer for the New Yorker. She recently spoke with Leah Littman, who teaches constitutional law at the University of Michigan Law School. So, Leah, last week in a 5-4 decision, the Supreme Court refused to stop Senate Bill 8 or SB 8 from going into effect. What's in that Texas law? So the big part that is substantive of the Texas law is it says abortions performed more than six weeks after a person's last period are prohibited. What is quite novel about the law is it allows anyone, literally anyone in Texas, to sue either an abortion provider who performs an abortion on someone more than six weeks after their last period or to sue. to sue anyone who assists a person in obtaining an abortion more than six weeks after their last period.

So this idea of giving private citizens the power to enforce the law is part of what makes SB 8 so unusual. Typically, when someone thinks a law is unconstitutional, they can sue the official who's responsible for enforcing that law in order to keep them from enforcing it. Then the courts get to decide whether that law is unconstitutional. And that is what is happening with the Mississippi case that's going before the Supreme Court. Yes, that's exactly right. The Mississippi law prohibits abortion providers from performing abortions after a certain time period in Mississippi, after 15 weeks from a person's last period. The abortion providers sued the state officials, and they asked the lower courts to prevent those state officials from enforcing what they argued was an unconstitutional law. And the

lower federal courts agreed with them. So let's talk about the Texas law, the way that it was structured, was not normal in the way that the Mississippi law was. What about it is kind of crafty? So both Texas and Mississippi prohibit abortions after a certain point. But Mississippi says if an abortion provider violates that statute, the state, that is, some state official, will bring a lawsuit against. the abortion provider. Texas, however, said no state official can bring a lawsuit against the abortion provider. Only private citizens can. And so whereas the abortion providers in Mississippi were able to file a case in federal court naming the person who they knew would enforce the law

against them, the state official, that wasn't a possibility in Texas because Texas said no state official will enforce this law, only potentially any number of private citizens, and you don't know which ones. And so that made it hard for the abortion providers to pick who they would actually sue. So then abortion providers did sue, and they named various state officials and a private party, and we saw that case go to the Supreme Court. But the Supreme Court refused to stop the Texas law from going into effect, five to four. How would you describe what the Supreme Court did here? I would describe it as absolutely stunning. You know, when faced with the law that in practice and in practical effect was going to end abortion access in the state, the Supreme Court said,

yeah, just do it. And proceeded to write an order that said, look, we're not actually analyzing the constitutionality of this law. We are not saying anything about Roe versus Wade. They just said, look, there are these procedural questions in the case that give us enough pause that we're not going to stop the law from going into effect. And that, to my mind, allows them to give the states exactly what they want, banning abortion while evading accountability. And it also allows the Supreme Court. to kind of do the same thing. That is, the Supreme Court has, in effect, allowed states to practically end access to abortion,

while at the same time insisting that they're not overruling Roe versus Wade or Planned Parenthood versus Casey. They're not weighing in on whether this Texas law is constitutional. So they, too, are, I think, trying to avoid accountability and public scrutiny for what they did and what they allowed to happen in this case. case. But it kind of, I have to say, it kind of points up the absurdity of the whole system. I mean, like, the doctrines that Texas is manipulating, I think are completely wrong. Like, I think you should just be able to sue the state of Texas and say, you passed an unconstitutional law, like courts declare

it invalid. I think the idea that courts don't actually declare laws invalid and instead just enjoin particular state officials from enforcing them is this insane formalistic theory that was only ever offered and developed in order to justify laws like this. Like, it's all a house of cards. Right, exactly. It's just a maze that gets you nowhere. The more I think about it and talk about it with you, it's, it seems like the Texas law is like it's an onion with layers upon layers of unconstitutionality. Right. There's a substantive core, which is about Roe versus Wade and the violation of that abortion precedent. But then the insulation from judicial review itself is unconstitutional. It's just, it just seems like things are just tied up here and tied up there

really tight in order to essentially challenge the authority of the courts. It's not just about abortion. It's about basically saying to the courts, you are, you are cut out of this. Was there a mastermind behind all of these mechanisms? Really, there are several different kinds of mechanisms coming together, do you think there was a mastermind? I do, and I don't think I'm alone in that. So it has been reported that someone named Jonathan Mitchell, who's actually a former Solicitor General of Texas, that is the lawyer charged with defending the states and representing the state in court, was advising the legislature and had been basically spelling

out this theory about how to make it impossible to challenge a law in court in a series of academic articles. So he has also taught at several law schools in the United States. So this is really his brainchild and the brainchild of other people he was working with. And they concocted this scheme that would, again, allow Texas in substance to make it impossible to perform abortions and then make it impossible to challenge that law in court. That was the entire design of the law. That was what all of their arguments were geared toward, and that was what they were trying to do. So, Leah, I think there's quite a bit of confusion out there about exactly what the Supreme Court's decision last week means. Because some people are saying Roe v. Wade has been overturned.

Some people are saying that it will certainly be overturned. And others are suggesting that there's no way now to challenge the constitutionality of this law. So first of all, how can this, the constitutionality of this law be challenged, given this novel mechanism that makes it really hard to prevent it's going into effect? Now, we know it is an effect. So what is the next step? I think one troubling possibility is there might not be a way to challenge it. And I say that because abortion providers in Texas have stopped performing abortions on people more than six weeks after their last period. So there aren't going to be lawsuits to enforce the Texas law. That is, there aren't going to be private citizens filing suits against abortion providers for violating the law

because abortion providers are no longer performing abortions more than six weeks after people's last period. So, Leah, so far, we've been talking about scenarios in which the law, It hasn't gone into effect yet, and it's being challenged before it goes into effect. But traditionally, laws can be challenged after they go into effect. So here, we do have a law that has gone into effect, and abortion providers could provide abortions and be sued under the law, and then use that as the vehicle to challenge the laws unconstitutional by saying, I'm defending myself, and I'm not liable because the law is unconstitutional.

isn't that another way to challenge this law? It is possible, but I actually think that's pretty unlikely here. And one reason for that is the law itself, in addition to authorizing $10,000 in damages against an abortion provider, also allows a court to issue what's called an injunction, basically a federal court prohibition that you can't engage in certain conduct against any defendant. So an abortion provider is risking not just. monetary liability, but potentially being put under the supervision of the Texas state court system

in what abortions they can perform and what they cannot. So the risks of liability are much greater than just a $10,000 damages award. And it's also possible that people in Texas might not want to be the person who has the abortion performed and is the test case for this law that would attract considerable publicity and attention on them. Some people might not want, you know, to be the face of abortion rights in the United States. So there are many incentives in this case that weigh against, I think, abortion providers actually being able to find or bring a test case and challenge the law that way. So what other options are there for challenging the law? The United States, that is the federal government, could sue some possible defendants in order to try to get a court to strike down this law.

The Department of Justice has floated the possibility that they would rely on a federal law known as the FACE Act, which basically prohibits people from intimidating those who seek to get abortions. And maybe the federal government will bring a lawsuit saying Texas officials or people enforcing this law or violating the FACE Act. So some federal lawsuit is also a possibility. It just is so frustrating. The more you explain it, the wilder it seems. We haven't even gotten to some of the most wild procedural aspects of this law. Because another reason why there might not be a test case is a provision in the law says, even if a lower court enjoins the Texas law, that is, if a lower court says,

the law can't be enforced, and a later court says, no, it actually can be enforced, abortion providers can be sued for abortions they perform after a court said this law is invalid. So there too, the law exposes abortion providers to a ton of potential liability, even if the law is initially struck down and then later upheld by this Supreme Court. So the law itself creates all of these procedures to make it impossible to challenge the law and put these abortion providers out of business. So at the end of the day, what you're saying is that abortion providers are facing a choice of cutting their losses and not challenging the Texas law further or risk losing everything. Am I getting that right? Yes, I think that is the choice that they are pushed to.

You can read Jeannie Sukgerson on the Texas law SB8 at New Yorker.com. She spoke with Leah Littman, an assistant professor at the University of Michigan Law School. This is the New Yorker Radio Hour. More to come. This is the New Yorker Radio Hour. I'm David Remnick. Gia Tolentino is one of the most original voices writing today. She writes about culture, the internet, and feminism and much more.

Trick Mirror, her collection of essays from 2019, was a New York Times bestseller, and she was recently on our program, along with Ronan Farrow, reporting on Britney Spears. Here's Gia. So at the beginning of August, I flew to L.A., my first work trip in what felt like a million years, to interview one of my favorite artists, this musician named Caroline Polichick. And, you know, I landed, took a COVID test, drove out to the valley to this sort of anonymous warehouse space where Caroline was getting ready for her first live show in a year and a half. I feel kind of beat up. It's been a long couple days in rehearsal. Yeah. Especially in six-inch heels. But yeah, today's going to be a big one. I'm so excited to watch. The next day, she's set to play the Greek, which is, you know, venue with 6,000 capacity.

It's this big storied venue in L.A. And when I walk in, you know, she's directing everybody. She's tweaking little things on the track. She's tweaking little bits of the percussion. Oh, it looks amazing. I'm a fan of like individual strobes, but not like machine-done strobes. She's adjusting her hand gestures.

She's adjusting the tiny little nuances and the tone of her vocal runs. Say, say, say, say something more. Ah, ah. Yep. So, sa, sa, so say. What's just my hand. Say, say, say.

Should be wrong? I want to break this one. Caroline's been performing for a long time. When she was in college, she started the band Chairlift, which, you know, developed this very loyal following over the next decade, let's say. And in 2019, she released a solo album under her own name called Pang, which was, I thought, one of the best albums of the year, just this really bold, playful, you know, sonically progressive synth pop kind of anchored by this incredible voice she has. You know, the album was catching on,

and she was set to play, you know, all of these huge venues, these big festivals in the summer of 2020, but then, of course, in March, everything shut down. I think I should not do it because I can't do it as big as it needs to be done while singing. Okay.

And so the energy at the rehearsal is super intense, right? Because she is, after 18 months, of isolation bigger than she's ever been, which is a strange experience to be in as a person, as an artist, certainly. So now one more time, just up to that break. You have some break. The show with The Greek is going to be her first show back

in a long time, but also everyone in the room, it's their first show back too, for most of the crew, for her band members, and for pretty much everyone in the audience, this would be their first big, proper show back, myself included. included. And that's why I wanted to follow Caroline around this moment because I had so much anticipation for the first show back. I had thought about this moment for so long. And I wondered what that would be like for a musician, right, for what it would be like from the other end, to have not only the anticipation that I did, someone who wanted to be a part of it, but you

would be, you as the performer would be the person responsible for creating this moment that everyone in the audience had wanted for so long. Hey, can you hear me? Yeah, I can hear you. Can you see me, though? When I first checked in with Caroline about a month before her show at the Greek, we started off by just kind of remembering what live music was like. I saw Moza Asumni play at Public Records in Brooklyn,

and I just so remember that as being like, already I was sort of looking around at the room, being like, oh, God, I might get COVID. And actually one of my friends did. Like, there was this brief period, where we knew about COVID, but live music was still happening? Well, I was actually surprised that my show on March 11th in London was even allowed to go on. And, you know, the mood in the room that night was intense. Like, I think everyone knew that was going to be the last thing like that that any of us went to.

And there was just this really heightened sense of presence in the room because of it. I mean, it was the last show. And it felt precious and a little bit. dangerous because of that. Exactly. Was it hard to accept that, you know, getting to tour this record that was having a pretty massive response to it, not being able to, was that something that you had to continually sort of speak to yourself about, or was it something that you made your peace with early? Well, I guess I had two main feelings with it. One is that I'm always, always living in this feeling of like disbelief or I can't believe I actually get to do this for a living.

And it feels like a magic spell that will break at any moment. So when the shows got pulled away from me, there was this feeling of like, oh, of course they did, because that was never going to happen in the first place. There's no way that was actually real. And then on the other side, I was watching a lot of my peers release albums during the peak of the pandemic and the deep, deep frustration and sadness that comes with only being able to push new music out through the glowing square of Instagram seemingly. or of YouTube and not having that connection. So the more distance I got from the top of lockdown, the more grateful I was that I did manage to make a connection with people in the room when I did,

because I felt like it really counted. What did you specifically miss the most about performing? What are the specific moments that you kind of most long to have again? Well, I guess I am not very disciplined as a vocalist. I hear stories about people who like, don't smoke, don't drink, go to go to bed at 8 p.m. Like, you know, hydrate in a really regular way. I am so undisciplined. That's so surprising to me.

Well, I mean, I do go into like boot camp mode and I'm about to start next week when I know I have to perform again. But that's one thing I do miss about being on tour is that my voice is in shape and it's exciting. You know, I've spent a lot of this year really vocally out of shape because I haven't had to be. And it always scares me because there's always this feeling like, oh, what if I can't get it back? What's that going to be like when you start getting your voice back into shape boot camp-wise? What does that look like? Well, it's going to start with just doing practices by myself, just singing the songs over the instrumentals just by myself. And then for phase two, I'll move into kind of rehearsing with my band.

And then for phase three, rehearsing with my band whilst also running around, because that's a whole other cardio thing where, like, if you're not in shape with your cardio, you get out of breath. And if you're out of breath, you can't sing properly. Right. So it's focal warm up, its arrangement, and then it's performance. So I think it so works. Remember to make that bigger, just the wrist part. Funny is a rock. Funnies are right. Yeah.

It's going to go faster. Funnies are right. So all day at that rehearsal before the show with the Greek, you know, there's so many moving parts. And we finally got to talk for a little bit of time in the back of her manager's car. I wish we could have gotten two rounds of the set, but... How did today feel, do you? Like, how's the...

Today felt great. I mean, mostly just hoping for my voice to get to relax tonight so I can really have the control. I want to have tomorrow. It's been pretty beat up the last couple of days, so I just need to let it. I am amazed at just watching, you know, part of the day, like all of the runs. You know, I was going to ask you if there were,

if there were specific moments where listeners might think it was an effect, but it's actually you. But listening to you rehearsed, I was like, oh, it's almost always, it is just your voice. It is. It's like always your voice. Yeah, yeah. I've never performed through Tuna.

Yeah. To be fair, this was the first show I was ever tempted. to do it because I felt like I was really, I felt like I couldn't live up to my own standards of singing Bunny as a ride or live, mostly just because I'm kind of out of breath and moving. But I kind of had a realization yesterday, like, I can trust that everyone of the Greek is going to be turned. Yeah. Oh, yeah. That they will be helping me. Yeah. And I will not be singing by myself. What do you, what do you, this is like kind of a simplistic question, but like, what do you hope for it tomorrow.

You hope for it? I hope for time to slow down. I'm hoping that, like, I can feel so present and enjoy it, and I hope that I can be surprised. I know I will. Be just surprised by the crowd's antics and that the music can feel it and reverberate,

that that can reverberate in the music. And that, yeah, everyone can, me and the band, included can really enjoy the kind of scale of everyone being together. We're all going to cry. I'm getting emotional just thinking about it. Same. I've actually had to rehearse vividly imagining the crowd because I, as Sarah will tell you,

I just kept breaking down and dance rehearsal. Really? What was it about that dance in particular? Well, it was when I were rehearsing the walk-on. Gotcha. And I would imagine everyone there. And I was just like, God, I've missed this. Yeah.

We've all missed this. Yeah. Well, let's see what else am I hopping for. I just want to have fun. I know. I really want to have fun. The day of the show, it was really, the day of the show was just really exciting. You know, I was bringing one of my best friends who I had last seen, you know, in February 2020, a friend that I've been going to shows with since I was 16.

The Greek is in the, in the foothills of Griffith Park. up this big hill and the sunset is pink and everyone is sort of walking up the hill, politely wearing their masks, but also wearing kind of full looks for each other. When I first imagined going to the show, honestly, I thought that I would be writing about it as this moment of straightforward glorious catharsis, right, the beginning of the final reopening, right? We're free, we're vaccinated, like we're back, baby. And that was not the case. I spent the entire time being like, am I getting COVID right now? Am I getting Delta? You know, we are going to be living with the variance for a while.

And I think it means that if we are going to go do something, right? If we're going to go travel for someone's wedding, if we're going to go to a public event, it's got to be something that means something to us. I always have that moment at a live show in some way where, you know, suddenly you kind of dissociate and you're just kind of amazed at the fact of physical presence. I mean, this is like the main purpose of being alive as being around. other people in having something jolt you into remembering that it's kind of amazing that you get to be.

You know, you know, when you hear the orchestra tune up before like a play or a ballet or something, and it's like that exact mixed chord is the sound of the anticipation. For me, I had forgotten exactly what that moment is like when someone walks on stage. I had forgotten what applause sounded like, right? It sounds so silly. But it felt, you know, to feel other people's joy in the vibrations of my body, I forgot how much I love that moment of the show where the show itself is still pure potential and everyone is just sort of faces turned to the stage like ready to be stunned.

The New Yorker's Gia Tolentino. She spoke with Caroline Polichick, who's playing shows all over the country this fall in Phoenix, Houston, New Orleans, Atlanta, and much more. I'm David Remnick. That's the program for this week. Thanks so much, and see you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts,

with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Boutin, Ave Carrillo, Riannon-Corrienne, Cala Leah, David Krasnow, Gauphin and Putubuele, Louis Mitchell, Michelle Moses, and Stephen Valentino. Additional help this week from Harrison Keithline and Annie Chelsea. The New Yorker Radio Hour is supported in part by the Trurina Endowment Fund.