5-4 x Even More News - Abortion Rights

Welcome to 5-4.

It's me, Peter.

Apologies to any Leon fans out there, but I'm kicking it off this week.

And that's because this week's episode is a special one for two reasons.

First, Rhiannon joined us from Amman, Jordan.

She was traveling, but podcasting is more important than visiting your family on the other side of the globe.

So, Rhiannon managed to carve out some time and prioritize us.

The second special thing is that this is another crossover episode with our friends at Evenmore News.

We are talking about the future of reproductive rights, specifically the fact that the Supreme Court has agreed to hear a case about Mississippi's new super restrictive abortion law.

That case could basically overturn Roe v.

Wade as we know it, so Katie and Cody at Evenmore News had us on to discuss it.

I hope you enjoy.

Hello, and welcome back to even more news.

The first and only news podcast.

My name, you guessed it, it's Katie Stoll.

I was going to guess that.

You were?

Yeah.

I knew it.

That's why I said you specifically guessed it.

It's still right.

Me specifically being Cody Johnston is my name.

Hello, hi.

Hello, hi.

Today, we are extremely thrilled to be joined again by Peter and Rhiannon of 5-4 pod.

Hi, guys.

Hey.

Hello.

Hi.

Hi, hi.

I think last time I introduced it as 5-4 pod, and this time I said 5-4.

What's the official consensus?

Because I've heard it referred to in a bunch of different ways.

We have never firmly established what it is, and I plan to never do it.

Great.

Vibes or whatever.

Whatever you want to do.

We just go by vibes, whatever you're feeling.

I love that.

I love that vibe energy.

Last time you were here, I had a minor minor anxiety spiral afterwards of like, oh no, did I say the name of the show wrong?

So I just felt like I would lead with it today and just get everything out in the open.

You're doing great, Katie.

There's some 5'4 vibes today, apparently.

Before we dig in, I just have got to stop and wish everybody a very happy Pride month.

It's Pride Month.

It's the month.

Yeah.

It's the month of Pride.

I think that everybody knows where we stand as individuals.

But as a small business, I feel it's very important that we express our solidarity at this moment in time.

That sweet, sweet corporate solidarity.

Our logo for this episode will be rainbow-colored, and that is it.

Thank you for your service.

Okay, so as most of our listeners know, as well as our guests, because I mentioned this right before we started recording, I have been out of town for the past month dealing with family stuff and I'm getting my bearings together still, which is why, which is part of the reason why

I am thrilled at the timing of this episode.

I would have been thrilled anyway, because I think you guys are awesome.

I'm very grateful to have you guys here today and to talk to us about the Mississippi abortion ban that is making its way to the Supreme Court and could potentially decide that all state laws that ban pre-viability abortions are unconstitutional

and what that means for abortion rights everywhere, at least here in the States.

So thank you guys so much for joining us.

This is a really big and important topic, and your insight is very valuable.

Yeah, absolutely.

And we're glad to be here.

I'm going to jump right in, cutting off my

female co-host

on the abortion issue right off the bat.

Go ahead.

Go ahead.

My strongest male ally, Peter.

Thank you so much.

We defer to you.

If I could also interrupt everybody real quick.

Okay, Peter, go on.

Yeah.

If over the course of this episode, if the guys could just interrupt us and maybe just sort of like mansplain maybe female anatomy, I think that would be really helpful.

Yeah, that would be great.

Could you tell me where the vulva is?

Or is that too much too soon?

On the female body.

You guys look uncomfortable.

It's down there.

I'll tell you.

It is down there.

It is down there.

It's locatable.

It's one of the parts.

Actually, it's a lot of parts we call the Vulva.

Anyway, go ahead, boys.

Yeah.

No,

I'll just hop right back into this.

So, yeah, there's this case

coming out of Mississippi, Dobbs v.

Jackson Women's Health Organization, and the Supreme Court just took it.

And that means it's coming down next term.

But I think to understand it and its place in the law,

classic 5-4 fashion for our fans, I think we first need to walk through like 50 years of legal history.

Yes.

Sounds right.

Yeah.

And

that starts with Roe v.

Wade, which is a 1973 case.

And what really happened in Roe, you know, high level was that it takes the constitutional right to privacy, which had sort of recently begun to be recognized in other cases, and says that that right includes the decision to have an abortion or not.

So in Roe, the court adopts like a trimester framework where they make it harder for states to regulate abortion earlier in the pregnancy.

They basically make it impossible for states to regulate abortions in the first trimester, possible in very limited circumstances in the second, and then states have a little more leeway to regulate or ban it in the third.

And then in 1992, 1992, about 20 years later, there's another case called Planned Parenthood v.

Casey.

Conservatives had sort of taken control of the court at this time, and they were trying to overturn Roe v.

Wade.

And

instead of that happening, the moderate conservatives on the court sort of formed a coalition to uphold Roe, but considerably limit it in two ways.

The first is that they got rid of the trimester framework.

They say that it's outdated, and what really matters is so-called viability.

So they say that the states can regulate abortions after the fetus is viable.

And that sort of pushes up the timeline a bit, so states can regulate abortions earlier in the pregnancy than they could under Roe.

And the second thing this case does is creates a new standard, which says that you can regulate abortion as long as the regulation doesn't place a quote-unquote undue burden on the ability of a woman to seek an abortion.

The standard created created in Roe was a lot stricter.

So this gives states that want to regulate abortion a lot of leeway and a lot more leeway than they had before.

And what ends up happening is that much of the following 30 years of litigation about abortion has been about like what exactly an undue burden is, right?

It's a vague term.

There's no real clear definition.

Conservatives sort of put overturning Roe itself on the back burner a bit, and they started taking this death by a thousand cuts approach, where they'd impose all sorts of restrictions on abortion, from parental notification requirements for minors to mandatory transvaginal ultrasounds to restrictions on like abortion clinics themselves, like things as petty as like what are what basically amount to zoning restrictions.

And they'd test these things out in the courts, see what works, and just sort of slowly whittle away at abortion rights over time.

And the result is that even though abortion is still technically a constitutional right, there are states where material access to abortion services is incredibly scarce.

And even if you do have access, the process is incredibly onerous.

Yeah, yeah, that's exactly right.

So,

yeah, like Peter said, you can see this kind of back and forth, slow whittling away at the abortion right over the course of, say, like the past 30 years or so.

So, you know, for example, in 2000, there's this case called Stenberg versus Carhartt, also known as Carhartt number one, because there's a second case that follows it.

But in Stenberg versus Carhartt, the first one, the court, the Supreme Court actually struck down a Nebraska law that banned late-term abortion procedures, including like a lot of commonly used procedures that occur in the second trimester regularly in the abortion care context.

But then in the second Carhartt case, which was just seven years later, the Supreme Court essentially overruled itself

when they upheld the federal ban on so-called partial birth abortions.

And in that case, Gonzalez versus Carhartt,

the Supreme Court said that the 2003 Partial Birth Abortion Ban Act was facially constitutional.

It was just fine.

And, you know, so by that time, in

2007, Sandra Day O'Connor had retired retired from the court and Samuel Alito had taken her place.

And you know, I just want to note while I was thinking about Samuel Alito that Samuel Alito, I think the best way to describe him might be the human embodiment of that taste in your mouth when a pig is sitting on your tongue for too long.

You know, and I do know.

And then it gets stuck in your throat.

Yeah, yeah, yeah, yeah.

That's Sam Alito.

So

Gonzalez versus Carhartt, also known as Carhartt number two,

was really a sign to the conservative political and legal movements that the Supreme Court was really taking a right turn in its jurisprudence on abortion.

You know, they heard two cases on really similar issues, these late-term abortion restrictions.

They hear these two cases on these similar issues within the span of a few years, and they come out the other way.

other way with a conservative ruling the second time around.

And so that brings us to sort of more recent Supreme Court cases about abortion.

We see another attempt at a similar kind of flip-flop from conservatives, most recently with a case called Whole Women's Health in 2016, and that was followed by June Medical in 2020.

So these two cases are even closer in terms of like the factual background, the issues presented to the court.

It's even closer, more similar than the two Carhartt cases.

And so like,

just to emphasize, like, Whole Women's Health and June Medical, they are like the same case.

It is the same issue.

So, just to explain a little bit, at issue in Whole Women's Health in 2016 was a Texas law that required that facilities that provided abortions be certified as, quote, ambulatory surgical centers, meaning they basically like had to retrofit their facilities and equipment to meet the standards of a hospital emergency room.

Obviously, that was completely

unnecessary because abortion procedures are sort of exceedingly safe.

The vast majority are conducted on an outpatient basis,

all of that.

The Texas law at issue in Whole Women's Health also required that abortion providers have admitting privileges at a hospital within 30 miles of the abortion clinic.

Again, that's not only medically unnecessary, but also would have had the real life consequence of many abortion providers, particularly in rural areas, just having to shut down because they're not that close to a hospital.

Yeah, I remember this being

this was recently.

You've already mentioned that it was recently, but I remember being up in arms about this.

Yeah, yeah, absolutely.

It was ridiculous.

I actually saw, I actually went to DC and camped out at the Supreme Court and saw oral arguments in Whole Women's Health.

So, yeah, this was, it was, it was, it was pretty intense, definitely.

Rhiannon was doing like the eye, like waiting for an iPhone, but for even worse nerds.

I've been exposed as a nerd.

A sneakerhead, but for

Supreme Court cases.

Right.

So in Whole Women's Health, though, you know, in that case, the liberals won the day.

It was a 5-4 decision, and they struck down the Texas law saying that it placed an undue burden on women, you know, according to the KC v.

Planned Parenthood Standard.

So great.

Swell.

You know,

that was a good case for reproductive rights.

But like I said, they sort of had this one-two step.

And Anthony Kennedy retired.

And we all know that the big toe, Brett Kavanaugh, replaced him.

And conservatives were like, hell yeah, we get a second bite at the apple.

Let's do this, right?

So that's how we get the second case, June Medical, in 2020.

It is almost exactly the same law, but this time

it comes out of the state of Louisiana.

So conservatives thought that having a solid like five justice majority on the court would deliver them the goods that they wanted.

If not totally overturning Roe versus Wade, then at least sort of upholding these really restrictive laws and giving the green light.

to state lawmakers to kind of go apeshit on reproductive freedom.

And Kavanaugh, Justice Kavanaugh, does join the conservatives, but this time it's actually in dissent because Chief Justice John Roberts actually joins the liberals in a concurrence because, you know, he's at least concerned enough with the appearance of Supreme Court legitimacy and consistency that, you know, he kind of says, no, look, we just decided this damn case four years ago.

We can't just do a 180 right now.

You've got to respect the norms.

Right, right.

You've got to respect the norms.

That's right.

It was just like too shameless, I think, for him.

It was such an obvious political ploy, and he's such an institutionalist that wants the court to be respected

that he couldn't in good conscience

strongly like the current GOP as opposed to having like sprinkles of it.

Well, also,

the whole conversation over the last five years as Trump has had opportunity opportunity after opportunity for

whatever reason

to add justices to the Supreme Court has been this specific issue,

one of abortion rights.

It's a lynchpin issue right now.

And so, yeah,

it would have been

egregious on so many levels to blatantly, you know, over

so quick question.

So you've mentioned that

these cases are very, very similar.

It's the same law.

Yeah.

Just sort of in different places.

And obviously, there's this long project going on of like, okay, we're going to try this.

We're going to do this.

We're going to make sure this goes to the Supreme Court and sort of whittle it down.

And

they have a whole court plan.

They're playing the courts for this purpose,

among other things.

Do they ever Do they even bother changing the language?

Because so much of the language is open to interpretation and like

it's a long process of just defining it over many years.

Do they even bother?

Or is it just like, we're just going to try it again?

It depends on the case.

I mean, most of them are just trying to find nuance where no reasonable person could really have it.

Right, right.

Right.

I mean, with Whole Women's Health and June Medical, it was the same basic case.

And the conservatives were basically taking the position of, we got it wrong four years ago,

but this is the way we should go now.

Um, so they weren't trying to like pretend that they were adhering to it, they were basically saying that was a mistake, we should we should change it.

Well, I guess 2020, it was 2020, so pretending is over, also, yeah,

that's exactly right.

And you know, even though, even though John Roberts sort of keeps up the air of you know, uh, respecting precedent and and um, you know, Supreme Court legitimacy, you know, he's a slippery little fish boy.

So, um, in June Medical, he does a deft little maneuver, in his opinion, where he says, hey, no one has asked us to overrule Planned Parenthood versus Casey.

So we can't do that right now, L-O-L-L-O-L, right?

And this is obviously basically an invitation to conservatives to keep bringing challenges to abortion rights to the court.

And, you know, like he's saying, give us a case that asks us to overrule Planned Parenthood versus Casey so we can talk about that next time.

You know, he thinks he's a, he's a very clever little boy there.

Yeah, which is what,

which is where we are.

And, you know, I think I'll, Rhea, I'll let you explain Dobbs a little bit because I think you know more than I do.

But the thing to remember is that Roe is the case that creates the constitutional right to an abortion, but Planned Parenthood v.

Casey is like the case that defines that right as we understand it right now.

Yeah.

I think a lot of people talk about overruling Casey, and you might be like, huh, well, what does that mean?

It probably means overruling Roe, or at least coming very close to it.

It's almost like euphemistic to talk about overruling Casey.

I think it's functionally the same in most situations.

Right.

It's the same.

It's, yeah, essentially, it's like one stone further you're stepping towards.

Right, right.

Exactly.

Exactly.

Yeah.

So that brings us to Dobbs, which is, you know, the case that's pending that will be heard this coming term at the Supreme Court.

So Dobbs is a case, I think, like Katie mentioned up top, it's a case about the constitutionality of this time a Mississippi law that forbids abortions after 15 weeks.

So, you know, just to kind of emphasize, this is a full ban on all abortions after 15 weeks, which is way before the point at which a fetus would be viable outside the womb.

And the law only has two very narrow exceptions.

First, if a doctor determines that the fetus could not survive even if carried to full term.

And second, if a pregnant person's life was at risk, should they carry the pregnancy to term.

That's it.

So there are no exceptions in this Mississippi law.

There are no exceptions for cases of pregnancy occurring as a result of rape or incest.

None of that.

This is super highly restrictive.

And if this law is upheld, it would really signal effectively the overruling of Roe and Casey, even if the case doesn't sort of explicitly come quite that far.

In fact, this case came to the Supreme Court from the notoriously conservative Fifth Circuit Court of Appeals.

And even there, the Mississippi law was struck down.

You know, notoriously conservative Trump appointee Judge James Ho on the Fifth Circuit said that the Mississippi law is so contrary to the court precedent on abortion that it was his, quote, duty to strike it down.

So when, but when Mississippi appealed from the Fifth Circuit, you know, know, the Supreme Court decided to take the case anyways.

So we're already kind of in ominous territory.

Yeah, there's there's sort of a these laws are often passed in order to invoke a legal challenge, right?

Like they know that the court in Planned Parenthood v.

Casey basically expressly said

you can't ban abortions before viability.

They define viability as like 23-ish weeks, which was a little early,

but they were being aggressive.

So, you know, this law is plainly violating the Supreme Court precedent, and that's why it exists.

They did it so that it would be challenged so that they could drag it up to the Supreme Court.

And I guess like the next natural question is like, what's the Supreme Court going to do?

We're not in the prediction game, which is mostly because research shows that

no one can actually predict effectively, or at least most people can't.

I will say that it does seem like there's some very clear factions where you have the three liberals, you have the three most conservative members in Coney Barrett, Thomas, and Alito, and those factions are pretty set in stone.

Roberts and Kavanaugh are a little more up in the air to the extent that anyone is.

But I think the most

telling piece of information we have is the question presented to the court.

So when the Supreme Court takes a case, it doesn't accept the case in its entirety or anything.

It selects precisely what question it will be answering, and then it answers that question.

So without getting too deep into the details here, they could have taken up a very narrow procedural question

concerning which legal standard should be applied to a law like this.

Instead, the question they took is, quote, whether all pre-viability prohibitions on elective abortions are unconstitutional.

So

again, that's a question that the court has already answered in Planned Parenthood v.

Casey.

It said, yes, prohibitions on pre-viability abortions are unconstitutional.

So it's pretty telling that this is the question they took because, like, why would you take a question that the court has already answered unless you're going to change the answer?

Right.

And in this ruling, it can be decided to overturn something.

Or does that have to be brought to?

Yes.

Okay.

I mean,

it's one of those, the court is being presented with options here.

They could flat out say, Roe doesn't exist.

The constitutional right to abortion doesn't exist.

Or they could say

Roe is much narrower than we had previously conceived it.

Right.

No pun intended with the conceived.

Oh, making conception jokes, Peter.

Great.

You know, when life begins.

Unbelievable.

I think that, like,

again, we don't, like,

we don't have a lot of insight into what the court is likely to do, whether they're going to do that, like, half-measure or not.

I will say, though, that although I think the savvy thing to do would be to not overturn Roe, right?

Like, this is going to drop in a year.

It'll be just a few months before the midterms.

If they're thinking in political terms, it might be a little bit crazy to stir up the Democratic base like that.

Yeah.

Yeah.

Has

already happened in 2018.

Yeah,

that's right.

And

I mean, yeah, you don't want to ascribe too much savviness to them.

I think especially because, you know, it's important to understand the degree to which the modern conservative legal movement is linked to abortion.

Like, originalism is the predominant strain of ideology, of legal ideological thinking on the right.

And that, as a popular concept in conservative legal circles, only really gained traction in the early early 70s and was like bolstered by Roe, by right-wing reaction to Roe.

They needed some like ideological academic reason to oppose it.

Yeah.

It was created this fierce opposition around that time.

It wasn't around before.

That's right.

And, you know, for the next 20 to 30 years, conservatives just banged the drum of like liberal judicial activism is out of control.

And Roe was like, you know, the beating heart of that idea, of that movement.

So I mentioned earlier that it was a coalition of moderate conservatives who sort of saved Roe in Planned Parenthood v.

Casey.

That particular development is also a huge factor in like the intensive vetting process in judicial nominations

that when Republicans just when they rep when they nominate a judge, they don't want to see any ideological drift, right?

It happened with Souter.

It happened a bit with Kennedy and O'Connor.

And they want to ensure that they're nominating people who are going to stay firmly on the right.

They're obsessed with this.

And so, you know, conservative legal ideology and anti-abortion sentiment are like deeply intertwined.

They've all been trained to think that Roe is this great injustice

afflicting American jurisprudence.

That's like the Kool-Aid that six justices on the court have been drinking their entire professional lives.

So I'm not like super optimistic that they're going to take the savvy route rather than the, you know, like this, this, the opportunity that you've been waiting for is being presented to you, right?

Right.

I'm not sure.

This is a little bit of a tangent, but how exactly do they choose which cases and when, if you have any insight into that?

Because it's hard to not feel

like this is coming up.

I think this will be the first case that Amy Coney Barrett will be seeing on abortion.

And it feels like that part is calculated.

Absolutely.

It's absolutely calculated.

Like it's not just a feeling.

You are right.

It is absolutely validated because

Because, like we've said, right, in the historical context, like the standards, you know, the standards and the jurisprudence has been pretty clear.

And the conservatives have been chipping away at the abortion right, you know, forever

since Casey, for sure.

And the conservatives, in addition, have made multiple attempts at overturning Roe already.

And so,

yeah, so this is kind of in line with what they've been doing in the conservative legal movement.

In terms of how they take a case, yeah, thousands of cases get appealed to the Supreme Court every year.

Obviously, the Supreme Court, the justices themselves decide what cases they will take.

I believe, Peter, correct me if I'm wrong, but I believe it takes four justices to

to

accept a case, to say that they want to hear the case.

And so, yeah, you know, conservatives have a six-justice majority,

you know, likely Amy Coney Barrett, Kavanaugh, Gorsuch, for sure, Alito Thomas, Thomas, you know, they said they wanted to hear the case.

So it was, I think, kind of at this point, pretty easy for conservatives to get the case in front of the Supreme Court.

And so, you know, just kind of turning to maybe,

oh, I hate even, it gives me the hibby-jeebies even kind of saying it, but imagining a world kind of without Roe versus Wade or a severely limited Roe versus Wade

and what might happen if, you know, Dobbs does effectively overrule Roe and Casey.

Conservatives see this as a moment of great opportunity, and it didn't happen by chance, right?

They intentionally built a Supreme Court around this idea over the course of the past few decades.

And state lawmakers know that, and they're seizing on the moment too.

You know, just in the past few months, there have been a ton of new abortion restrictive laws passed at the state level.

In fact, the Guttmacher Institute recently reported that 28 new restrictions on abortion were signed into law in a span of just four days in April.

Wow.

And so, you know, conservatives are just like salivating for this moment, right?

And so if Roe is struck down, if Case is substantially hindered by the ruling in Dobbs next year, you know, there's already a slew of extremely restrictive legislation ready to go into effect.

Many states have so-called trigger laws already on the books, meaning that should Roe be overturned, abortion bans would automatically go into effect.

My home state, Texas, just passed a ban on abortion after detection of a heartbeat.

Yeah, I was going to bring this up.

Six weeks ago.

Yeah.

Yeah, six weeks is as soon as six weeks into a pregnancy.

It's wild.

Six weeks.

Boys, you can, did you know that stress or any sort of an extreme situation can fuck up your menstruation?

Six weeks, you might not even think twice,

you know, that you've missed your period.

Absolutely.

That is too soon for

absolutely.

Yeah.

Oof.

Yeah, six weeks is commonly before many people even know that they are pregnant.

I wouldn't take a pregnancy test till well after that.

Anyway, totally.

And, you know, it's not an accident that the clinic bringing the challenge to the Mississippi law in Dobbs, that clinic is called Jackson Women's Health, it's the only clinic that provides abortions

in the entire state of Mississippi.

You know, almost 90% of the counties in the United States do not have an abortion clinic.

So in addition to just, you know, already existing lack of geographical access to abortion, You have laws that require waiting periods between an initial appointment with a provider and the actual abortion procedure.

You have laws that require, you know, medically unnecessary sonograms, on and on and on.

And so this is all,

like we've been saying, it's all by design.

And it's a sign of how state legislators have been able to just constantly be pushing the line that was drawn by Casey, that undue burden standard.

And

how fluid is

even the term viability?

Because it seems like they run pretty fast and loose with that.

They do.

The Supreme Court and Casey sort of pinned it, I think it was 23 weeks.

So

you can't get too far from that without running afoul of Casey, technically.

But

that's why I think this case exists.

And I think the sort of certainty of that, the fact that you can't really deviate from 23 or so weeks too aggressively without very clearly violating the Supreme Court's precedent, that's been very frustrating to conservatives.

And they are like sort of looking for more flexibility.

And I think that's what this case, Dobbs, is targeting, right?

They're saying, well, viability shouldn't be the standard anymore.

It's too firm of a

line for them.

They've been loving the gray area created by certain aspects of the law, like the undue burden concept.

What's an undue burden?

They love toying with that.

What's a due burden?

I actually

jotted that down.

I know that you already mentioned that there isn't really a definition of what an undue burden is, but there are a variety.

Can you give us some examples of things?

Yeah, so in whole women's health, for example, Justice Stephen Breyer wrote the majority there.

And that was, and you know, that was the Texas law that required facilities to be surgical centers and required doctors, providers to have admitting privileges at hospitals.

Justice Breyer, when striking down that law, he said it was an undue burden.

and he used the term substantial obstacle, right?

Which is like, okay, that's not, that's not even much more clear, but

in terms of wording, but something that poses a substantial obstacle to a pregnant person's access to abortion is, at least in that case, was considered an undue burden and therefore unconstitutional.

There's also, like, in Casey itself, spousal notification requirements were struck down, saying that's an undue burden,

although it upheld parental notification for minors.

So, you know, I mean, who the fuck knows?

The idea, though, is that

according to the court, the state has some interest in regulating abortion

for either purposes of protecting the woman's health or the

fetus, and that's being weighed against the rights of the woman.

And that's what they're talking about when they say an undue burden.

A due burden is when the state's interests outweigh the woman's, ostensibly.

Yeah.

Oh, i would say there's absolutely zero examples of that

that that sounds right to me but uh texas disagrees well you know how concerned they are with women's health you know it's uh it's so important to them so important i feel so protected by my state representatives

You know, something we talk about on the podcast a lot is like, what is a constitutional right

without a remedy?

If the right is being taken from you?

Or what is a constitutional right?

What does it mean if you don't have meaningful material access to that right, right?

And so

just kind of, it's just an idea that obviously conservatives have been toying with in the abortion context, right?

So far,

they can say that, you know, abortion is

is constitutional, they're not overturning Roe, right?

But they have already been chipping away, like Peter said,

with this sort of method of death by a thousand cuts.

In a lot of areas in the country, especially in the South, especially for poor women, there isn't a strong abortion right at all today.

And so just looking forward to jobs, it's

hard to know what's going to happen next.

Yeah, it's one of those things where like, okay, like, let's say they did uphold Roe.

There's one clinic in Mississippi.

Like, so do you really have a constitutional right?

You know, what's the, what's the value of that right to someone in Mississippi seeking an abortion?

You know,

rights are not, in our view, conceptual.

You know, it's easy to say, oh, you have a right to do this, but if you have no material access to it, it's meaningless, right?

Conservatives don't view rights like that.

They view them as more almost like ethereal.

Right, yeah.

It's not

a word they can use to mean like many, many different things, actually.

Is there anything we could do about this?

Sit back and watch.

Will we be seeing much information?

I mean, so this is,

we're still a ways off from this.

Well, right, this is the decision is supposed to be like mid-2022.

No, but they started 2022.

Yeah.

So

for a second, I thought it was 2019.

If only.

But they start hearing it this fall, correct?

Yeah,

there will likely be arguments.

I think they're scheduled for October.

And then it will take the entire term for them to hash it out because that's how it always goes with the big cases.

And it will almost certainly drop next June.

Is the way to sort of see all this camping out in DC?

Is that

where do we line up?

Yeah, Rhea, how do you do it?

Yeah, so I learned the hard way that

when you are trying to watch oral argument at the Supreme Court, yes, you can wait in a line physically outside.

And for, you know, big cases, cases that are in the news,

cases that are important, like this one, the line starts at least the day before, and you just kind of camp out and hope that you are far enough ahead in the line that you make it in before the court fills up.

Maybe we should plan another crossover pod where we all go there.

Camp out.

I'm joking, but I'm also not.

I will never put myself in a situation where I am waiting to hear like Brett Kavanaugh talk about abortion.

I just can't bring myself to that.

Yeah, it's too fucked up, right?

That feeds his ego.

Yeah,

it really does.

Having been in that

in that monstrous building for one oral argument, I can say I do not recommend.

So

all right, so that's a no from you guys.

I'll take this to this by myself.

I think in terms of like what you can actually do, I mean,

we don't try to pretend that we're organizers.

And I think organizing is really the answer.

I mean, from our perspective,

we're like Supreme Court people.

What do you do in terms of the court?

You wait for some of them to die or be replaced or someone to back the court.

I mean, that's it, right?

Exactly.

You know,

I think that...

The only real silver lining of something like this is I imagine that it will lead to organizing that hopefully in the future could

lead us to a situation where

access in states like Mississippi Mississippi looks actually looks more like materially materially better

than one facility I mean it's virtually banned already in the fact that people don't have access I mean all of these bills that we've talked about you know with the

admitting I can't think of the phrasing admitted admittance privileges admitting privileges and all of that is just basically saying you don't we're not giving you an opportunity to even and this is a tangent but when i start to think about that and think about you know centers being shut down it's even more pervasive than just access to abortions it's access to uh sexual and reproductive health of course um that's exactly support you know mike pence shut down all the

planned parenthoods and

where is it where is he the governor of cody indiana god's country indiana uh and that led to

yes of god's country and that led to a huge hiv outbreak anyway tangent no I mean, the one of the sort of things that's been floating around in

reproductive rights circles for years now is as they prepare themselves for the end of Roe, which they've, they've been sort of gearing themselves up for for a long time,

a lot of people have sort of floated the idea that maybe it will, this, maybe the situation is so bad that this will make it better because there will be organizing and funds, et cetera.

I don't think I would go that far.

I don't want to, you know, I don't know how you weigh like the human suffering on one hand against the like, you know, increase in funds on the other.

I don't think that's something you can really do, but I think it speaks to how far we've fallen, right?

How effective the legislation has been that that conversation can even be had where you're thinking, well, maybe the end of row is sort of what we need here to turn the corner.

Once you're having that conversation, it's like you've been losing for so long.

It's like we've hit rock bottom, so there's nowhere to go but up.

Yeah.

I mean,

you heard a lot of that argument for Trump stuff in 2016.

Like, let's just do it because the reaction to him will be,

you know, really good.

And that worked out well.

That's why things have been going so great.

Yeah, yeah.

We did it.

We turned this ship around.

Yep.

Yeah.

Yeah.

I'm not a proponent of that accelerationist argument for exactly those reasons.

But, you know, I just think

it does emphasize, I think, how good the conservative political movement and the conservative legal movement have been in the post-civil rights era at sort of consolidating around,

you know, reacting to the expansion of rights, right?

And particularly,

you know, rights of racial minorities and then definitely, definitely around Roe and attacking Roe.

It's just such a lightning rod issue.

And their kind of publicity around it, the way they talk about it, the rhetoric and the dialogue, the culture war stuff that, you know, it's created like these so-called single issue voters, you know, the, the, um, it's just really,

you can't, uh,

I don't, I'm losing the words, but like, it's, it's, um, it's so clearly, it's so clear that like they have done such a good job, right?

At making it an issue that people care about and they've, um, and they've made it seem like so so bad and they've they've normalized that

abortion at reproductive rights that those are that those are shameful things right that that's what dirty feminists want etc etc and I don't think you know something we talk about on the podcast is is

the way that the left and liberals really especially especially liberal lawyers and liberal justices on the Supreme Court have really failed to to respond to that adequately.

So, yeah.

Yeah, one of the most interesting things is that they've had this two-pronged attack where you have this cultural side that's just anti-choice, and then you have this legal side that is about the like liberal abuse of the Constitution's original meaning.

And they've just managed to like marry these concepts together, despite them having no real natural correlation.

And to the point where you have people like Samuel Alito and Clarence Thomas who sort of just believe both.

And they're driven forward by both.

This sort of singular ideology that comes from these two very different concepts.

Yeah.

Yeah.

They're very good at that, pairing that culture and like moving that forward.

And we're so bad at doing the opposite or

doing it too.

Like, is it

you referred to like specifically liberal lawyers sort of not being able to sort of combat that is it do you get a sense it's it's just sort of not realizing it until recently that that's what's going on or is it like they don't have the infrastructure or like they uh like i always go back to this uh

this one line from the good place basically they have like a good committee uh and the it's in heaven and they're trying to get something done and they're like well just do just to help us and uh i forget who says it but they're like well we can't we're the good guys we can't just do this right right right

um And it really sticks with me all the time.

In case like this, is it sort of a combination of those things where like they don't want to engage in that kind of behavior?

I think it is a combination.

I think it is.

So first, there is a lack of infrastructure on the on the left in like legal circles.

They have absolutely nothing compared to like the federalist society and everything you have on the right.

I also think there's like an engagement in.

with the conservative argument as if it's in good faith that ends up with just a hedge.

And you see the same thing in the cultural arguments, right?

Where like the liberal position ends up being something like safe and rare rather than just like, no, well, we should, you know, we should increase access, et cetera, et cetera.

And you're sort of granting the premise that the conservatives grant you, that the conservatives are proffering.

And the same thing happens on the legal side, where

liberals have basically said, well, look, originalism,

it has some merit.

You know, we should adhere to it a little bit, but not all the way.

You're going too far.

You know, you're granting them that the premise that they're operating from is correct, but you're just saying, I wouldn't take that premise quite as far as you do.

And obviously that's a losing argument.

You're always going to look

a little weaker when that's what you do.

Trevor Burrus, Jr.: Right.

And then the line shifts, it goes closer and closer and closer.

It's the next time you have that argument, like, okay, like still, it's okay a little bit, but not that much.

And then those limits

keep changing.

Yeah.

And I think this is a great example of that sort of Overton window shift where all of it, like, you know, they've been hacking away at abortion and all of a sudden it's like, well, all that's left is Roe v.

Wade.

Right.

And now they, you know, they're like

calling all these heartbeat bills.

Like, you do that enough, and then you have people sort of like, again, like you're saying, like, trying to hedge and stuff and like, well, okay, okay, like, well, like, that's, like, close to it.

And because it's also like a very emotional terminology

to rile up all that.

We have to wrap this up soon, but I have one more Supreme Court question that is not abortion related.

What's up?

And it is about Stephen Breyer, who is 82 years old.

82 years old.

Should he retire now and save us?

Yep, okay.

That's

off the court, Stephen.

Are you listening, Stephen?

It's wild

that in 2021, this is still like a debate being had.

And like he does, like day one, he wasn't like, okay it's time like what the

right i mean i mean we're just talking about like the inability of liberals to effectively sort of uh respond to what conservatives have done uh around abortion and like this is it's another it's another example right like how the lesson was not learned uh from ruth bader ginsburg not retiring in 2013 right what a gut punch right um how they are still in denial about this i mean stephen breyer is out in public these days over just the past few weeks talking about how we shouldn't be politicizing the court so much.

And they all get along and they're good friends.

And, you know, essentially saying, like, I'm here.

I'm good.

I'm not going anywhere.

Right.

It's disgusting.

I will say, you know, a thought I keep having recently is Stephen Breyer's been very outspoken recently in a way.

And the things he's saying are garbage and make people think that he's going to stay on the court.

But I will say that it's very unusual for him to be this outspoken.

He says he's got a book coming out in September, and that makes me think maybe he is retiring.

Please,

you know, maybe he is sort of setting the stage.

And, you know, I don't know.

It's really hard to gauge, but I will say he's acting weird.

And that makes me think either one of two things is happening.

He's A.

One, he's retiring, or two, he's very defensive and lashing out at everyone.

Right, right.

No, leave me alone.

I'm staying forever.

Make a joke about being old.

Both of of them are exercising, but come on.

It's just wild.

It's like the one, like, the only thing like Democrats

love more than losing is not learning lessons from

a year ago.

Oh, yeah, we love that.

Closely related phenomena.

Yeah.

Classic.

Classic Democrat listening.

We're like 95% sure at this point that Stephen Breyer does not listen to 5-4.

So fingers crossed for your show.

He listens.

Maybe for sure.

I think every time the merch.

Well, look, we're the only news podcast out there, so I'm not sure where else he's getting his information from.

That sounds not in this show.

Yeah, you're right.

So I have to assume that he does.

All the citations in his book are going to be just this show.

My prediction is he retires Friday.

Maybe Monday.

Maybe he takes the weekend as this will drop on Friday.

You listening, you little worm?

Yeah,

you fucking idiot.

Watch out, or else Rhea is going to give you a very unflattering descriptive like she did for Alito.

Yeah.

Uh-huh.

I've been trying to tell our Zoomer fans that he looks to me a lot like earthworm jim uh and they don't know who that is

but i promise you he looks a little bit like earthworm googling

he does kind of look like earthworm jim uh yeah he sure does zoomers listening go play earthworm

have a frustrating time

all right we've got to let these kids get out of here.

Thank you again so much for joining us.

This has been very fun for such a dark subject.

Anytime.

Yeah.

Taking you up on that for sure.

And that's it for us this week, guys.

Thanks for listening and remember that we love you very much.

Very much.

All right, guys.

Thank you for listening to this special episode.

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