Advisory Opinions - Baby Got Brief

Episode Date: March 14, 2022

David and Sarah hit a ton of topics in today’s podcast, but with an emphasis on state law, including some terribly drafted state laws. They start with the latest on that abortion law in Texas, move on to an abortion law in Missouri, and then discuss the avalanche of misleading commentary about Florida’s so-called “don’t say gay” law (including how "don't say gay" is itself misleading). They wind up talking about teachers' free speech rights, pronouns, and critical race theory.   Show Notes: -Baby Got Brief lyrics -New York Times: “Most Women Denied Abortions by Texas Law Got Them Another Way” -National Review: “The New York Times Misleads on Texas Abortion Trends” -New York Times: “Texas Supreme Court Shuts Down Final Challenge to Abortion Law” -CNN: “A Kansas teacher is suing school officials for requiring her to address students by their preferred names, saying the policy violates her religious freedom” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah, we're going to cover a bunch of things today. It's going to be kind of an a-o-po-pourri. We're going to be covering some developments in Texas on SB8, the abortion law, the pro-life law in Texas. We're going to cover a really weird law coming out of Missouri that's in a state of flux, but we're only going to be discussing that because it's so weird because of SB8.

And a New York Times story about abortion rates in Texas, and they're all kind of related, so that's one big mishmash. Then we're going to talk about the Florida quote-unquote don't say gay law that we've talked about before but mainly from the standpoint of it seems like nobody can be honest about the thing then we're going to talk about pronouns pronouns sarah and a federal lawsuit filed over pronouns that might not be or will it be what people want it to be um and then i'm sure we're gonna have something else to say at the end. But at the start, we have to pay tribute to a listener. Yes. So, David, a listener named Dave took to heart our last episode

and has much improved upon the little ditty that I was trying to sing to you and failing so miserably at. And so I want to take another take with Dave's immense help here. This is a duet, if you will, between me and Chief Justice Roberts. Now, just to be clear, and listeners, just so you don't immediately turn this podcast off, I will not be participating in this duet. I'll be doing both parts. You will be doing both parts. And as you listen to this, just think about the amount of work that went into creating these lyrics. It's pretty astonishing. We have the best listeners.

All right. You ready, David? I'm going to do my best. Maybe. I may be ready. Yeah. Oh my God, David. Look at her brief. It is so short. It looks like one of those emergency appeals, but who understands the shadow docket? They only take those cases because they have novel procedural posture. Okay. I mean, that brief is just so short. I can't believe it's written so fast. It's got like typos. I mean, gross. Look, she just got relief. And here's the chief justice's part. That was my part. If you couldn't tell. Okay. All right. Well, and that's a shout out

to those who don't well it will become clear okay i like fast briefs and i cannot lie you other judges can't deny when council walks in with a brief that is thin and asks us to step in you get stayed for the apa because the facts here aren't okay what you did was arbitrary and executive action is scary. Oh baby, I want to write for you. Percurium will not bore you. My colleague, he's original, but this brief you filed makes me feel so textual. Oh, government litigant, want to ignore precedent? Well, brief me, write swift, because you ain't that average plaintiff i've seen them pleading to hell with where that's leading she's pled clubbed has a going has a going like judge will let i'm tired of law reviews saying history is the thing take that average justice a qp that it's got to pack

much text so this honorable yeah court yeah Has the appellant got brief? Hell yeah. Tell him, file it, file it, file it, file it. File that healthy brief. Baby got text. Oh my gosh. Okay, Dave, I'm sorry. I'm not sure I did that justice, but I did my best.

You did. That was really good. I did my best. And you know, it's funny, Sarah, because just this very weekend, I was hanging out with a classmate of mine who's a U.S. district judge in Maryland. And I said, you need, if you haven't tuned into advisory opinions, this is the one you need to start with. Just tune in on Monday. We record on Monday. And this is how one you need to start with i would just tune in on monday we record on monday and this is how you just greeted our newest federal judge listener um cool i mean look i have to tell you david there were so many lines but this brief you filed makes me feel textual

obviously is a great one but the best line is she's pled club fed has it going like judge will let that was such a good that really had me yeah that was posted in comments and the person who posted it said if i remember right he said i i i'm actually posting this under my real name as if that was an apologetic as opposed to a boast. That's right. That's right. You know, that's... You get stayed for the APA.

Because the facts here aren't okay. What you did was arbitrary. And executive action is scary. I mean, that's actually a really good explanation of the APA. It really is. It's actually a really good explanation of the APA. It really is. It's actually very good. That's got to be elevated. Those lyrics have to be elevated to show notes, I think.

Yeah. So normally we just put links in the show notes, but I think we will put the entire lyrics, since again, I'm not sure I did them full justice. You can now go through, read them for yourself in all of their genius. When council walks in with a brief that is thin and asks us to step in, you get stayed.

That's so good. Okay. Sorry. That, yeah, it just, it, it like blew my mind.

I was like at this like conference sitting in a panel when this came in and I was like, Oh my gosh, this is this. We have the best listeners. As you said, yeah, no question.

No question. Okay. Dramatic, dramatic change of gears. Um, so just in, in this is almost kind of some housekeeping news really. Cause we,

we have covered SBA. This is again, the Texas, uh, uh, anti-abortion law that essentially allows anybody the ability to sue an abortion provider or someone who aids or abets a woman who gets an abortion once fetal cardiac activity or a heartbeat is detected. $10,000, up to a $10,000 award. We've talked about this forever, how the Supreme Court

struggled with how to deal with this. It's kind of receded from the headlines as it's been enforced since the Supreme Court allowed enforcement to go ahead. But there was one tiny little way in which there was the possibility that some state officials, in spite of the law repeatedly saying state officials could not enforce the law, there was a tiny way in which the law could possibly, maybe if the Texas Supreme Court said so, that state licensing officials had the ability possibly to discipline providers and or discipline or to stop the state from enforcement. And the Texas Supreme Court on Friday said no. are going to be involved at all in enforcing the abortion ban in Texas, the abortion ban on abortions after heartbeat is detected.

It said no, which is not a surprise at all and barely worth even talking about it, Sarah, but you're going to detect a bit of a theme in this podcast, and that is puzzlement at the way people in the media have talked about it. And here's my source of puzzlement, and here's the opening paragraph of the story in the New York Times. The Texas Supreme Court on Friday effectively shut down a federal challenge to the state's novel and controversial ban on abortion after about six weeks of pregnancy. That part is true. That part is true.

That part is absolutely correct. And then here's the part that I'm curious about. Closing off what abortion rights advocates said was their last narrow path to blocking the new law. I'm puzzled by that, Sarah. Are you puzzled by that? Blocking the new law. I'm puzzled by that, Sarah.

Are you puzzled by that? Yes, because while it is the only path that was left to blocking the enforcement of the law pre the law going into effect. As in a pre-lawsuit enforcement. First of all. Pre-enforcement ban. Pre-enforcement laws. Yeah. First of all, it's not clear that that actually is the only avenue left, as Ilya Soman lays out on the Volokh Conspiracy blog, but also makes no mention throughout the whole story that you still can win the lawsuit itself. And in fact, it also leaves out the fact that a Texas state court ruled in December that the delegation of enforcement to private parties violated the Texas Constitution.

So the New York Times story only pays attention to the federal courts and only talks about pre-enforcement review, but treats it like it is the whole kid in caboodle when in fact there's a Texas pre-enforcement challenge going on. And of course, there's, you know, when a lawsuit gets filed against a private party for the $10,000, judges will have to determine, you know, whether that lawsuit can move forward, whether it violates any rights then. Now, look, as it said, you know, I think it's worth cabining that somewhat because that could chill action regardless. You don't get your attorney's fees back even if you win, for instance, in one of those defensive lawsuits.

But David, once they've won one with a state judge saying that the law violates federal law or a federal judge saying that it violates federal law, that's it in some sense. Like that will be precedential. Now, again, you can keep bringing those lawsuits and you'll have to spend some money to get them dismissed. But at some point it'll be vexatious litigant stuff and you're into some rule 11 sanctions. Right, right. So just to break it down as clearly as possible, essentially what's the Texas Supreme Court shut down was one line of challenge that said that by restraining state licensing officials, you could restrain the law from going into effect statewide. But there are defenses that you can mount to the lawsuits that are filed under the law. And as we talked about before in a previous litigation or a previous podcast, there has already been a bounty lawsuit filed, at least one filed under this law.

The defendants in those lawsuits are going to be able to mount defenses to it, especially once the case winds all the way up to the Texas Supreme Court, which will take time, of course. If there's a Texas Supreme Court ruling that says that you can't enforce this law or grants a motion to dismiss, grants a motion to dismiss, that's going to be precedential across the state. But it is absolutely the case that as of right now, weeks, months after this law

has gone into effect, that the avenues for blocking the law in total quickly have pretty much closed. And that where we're going through our post-enforcement defenses to the laws uh to the law's enforcement or to post-enforcement defenses to litigation mounted under the law so that's where we are which is basically where we thought we were going to be after the Supreme Court case. So it's not that new. Very true. You know, Ilya Soman also points out that, you know, the Supreme Court, Gorsuch, Barrett, Kavanaugh, arguably certainly left open the possibility that there were other state officials that weren't included,

like sheriffs, for instance, Ilya points out. And he says, such people are not judges, therefore not subject to the Supreme Court's precedents, limiting injunctions against state court proceedings. And so then the question would be, are sheriffs involved in enforcing SB8? involved in enforcing SB8. Hard, David. Yeah. Yeah. Very hard to say that. I mean, the bottom line is, and this is something we've been saying literally since SB8 was enacted, there is one very clear path to blocking enforcement ultimately of SB 8 and that's as a mounting a constitutional defense to a litigation filed under SB 8. And the big controversy about SB 8 is not that it suddenly means that you can't, that constitutional, that constitutional rights articulated by the Supreme Court are no longer enforceable, it's that the controversy about SB8 is the way in which it blocked pre-enforcement review so that you could vindicate

your constitutional rights as they presently exist, but it will take time. Whereas most laws that are passed that are plainly violate Supreme Court precedent, you're able to attack them immediately in court before they go into effect. This was specifically written to avoid that and so far has been successful in that effort. It has not, however, insulated itself from eventual review on the constitutional merits. That's the whole controversy about this is that it blocked pre-enforcement review, which essentially allows a state to kind of hack constitutional precedent for an unspecified period of time while a lawsuit filed under the case or filed under the law winds its way through the court system. That was what we predicted would be the ultimate outcome of this thing near the beginning of all

this. And it's what's playing out now. And this Texas Supreme Court case isn't, it just sort of ratifies everything we've already thought about how this thing would play out. All right, David, you've got some stats for us. Yeah. Now this is interesting and this is going to actually segue into a discussion of a Missouri bill that has, that got a lot of attention. So the New York times went back and we'll, again, we'll, we'll put this, we'll put this in show notes, but the New York times in last week tried to take a look at what was the effect of the Texas abortion law on the actual number of abortions in Texas. And so what it found, and I'll talk a bit about the critique, which we'll also put in show notes, what it found is that there was a slowly decreasing average number of abortions or a slowly decreasing

number of abortions in Texas before the law was passed. Right before enforcement, there was a spike as people apparently received abortions before they knew the deadline. Then immediately after the deadline, there was a dramatic drop of legal in-state abortions in Texas. They didn't go away. They dropped by about half, a little more than half. But there was an increase in requests for abortion pills and a large increase in legal abortions obtained in nearby states, such that the number of abortions is rising again, of Texas abortions is rising again, and is now very, very close to the average number before the law. If not, I mean, very close.

We'll link to the chart. And this was sort of saying, look, what one state does is not necessarily going to have a dramatic effect on the number of abortions, which one, makes a degree of sense because people can get in cars and drive to other states. And two is directly relevant to what we're going to talk about in a minute. But I do want to mention some of the critiques of this. And we're going to link a piece by Michael New in National Review. And Michael New has noted that the methodology for determining that the number of abortions is about the same or getting very close to the same as it was before the law went into effect is based on some evaluations and analyses that have not been peer reviewed people who have requested chemical abortion pills. Doesn't necessarily indicate who actually took the chemical, you know, used the pills.

And then the out-of-state abortions comes from a Texas policy evaluation project. It contacted 34 abortion facilities in seven nearby states. But the abortion data is self-reported, hasn't been verified by any government agency. And it hasn't gone through a peer review process. So take those numbers with a grain of salt. But they're still relevant because it opens up if Roe is overturned. If Roe is overturned, essentially what will happen is that abortion policy will be returned to the states. The states will have the ability to regulate abortion flat out, no tricks like the bounty provision in Texas. That brings us to Missouri.

And Sarah, do you want to talk about what may or may not be happening in Missouri? Sure. So a few things. One, David, this sort of reminds me of super PACs, that when you have campaign finance law that sort of artificially decreases the amount that someone can donate to a federal candidate, then super PACs explode, even though no one would prefer to go the super PAC route. And I think super PACs are just a total net drain on our campaign system and speech and good campaigning and good candidates for that matter. That's the system that is created when you sort of have a gravitational pull,

pushing somewhere. So similarly, when you have a law like you know, pushing somewhere. So similarly, when you have a law like, um, Roe on the books, then SB eight pops up and it's like, well, this isn't what, how anyone would design this system. This is the worst way to do this. If you're pro-life by the way. And so in theory, David, what would happen is if the court overturned Roe laws laws like SB8 would disappear off the books immediately because they wouldn't be necessary anymore, which is, of course, what these states are counting on. In the meantime, however, Missouri introduced one bill, for instance, that would, in fact, have a bounty provision like SB8, but it would apply to going out of state to get an abortion as well. So if you facilitate a person leaving the state, basically there's a Planned Parenthood on

the Missouri-Illinois border. So if you help a person go to that Planned Parenthood on the Illinois side of the border, you would be subject to a civil lawsuit. Now, this has, like SB8 has all sorts of problems in Texas, this has all sorts of problems in terms of implicating even more constitutional rights, the right to travel, to cross state lines, etc. However, Missouri wasn't done. So there's another bill that Missouri introduced that's been making some waves, and I'm going to read it because I was, yeah, this is a problem. Okay. Yeah.

A person or entity commits the offense of trafficking, abortion inducing devices or drugs. If such a person or entity knowingly imports, exports, distributes, delivers, manufactures, produces, prescribes, administers, or dispenses, or attempts to import, export, distribute, deliver, manufacture, produce, prescribe, administer, or dispense any instrument, device, medicine, drug, or any other means or substance to be used for the purpose of performing or inducing an abortion on another person in violation of any state or federal law. Okay, I'm going to try to put that in English. You commit a crime, a trafficking crime, if you bring in any device or drug

that can be used to perform or induce an abortion on another person. So a scalpel would count under this. Now, notice at the very end, it said in violation of any state or federal law. Okay, so it has to be a scalpel or drug that is used to perform an abortion that would otherwise violate a state or federal law. Of course, there's no federal law that would apply to the majority of abortions. But it does have to violate state or federal law. Okay. So you go down then to section 3.2. The offense of trafficking abortion-inducing devices or drugs is a Class A felony, the highest felony, if the abortion was performed or induced or was attempted to be performed or induced on a woman who has an ectopic pregnancy. Ectopic pregnancy, by the way, is when the blastocyst, fetus, et cetera, implants somewhere other than the uterus. Usually it's in the fallopian tubes, but it can be other places as well. If a fertilized egg implants in the fallopian tubes, Generally, it dies very quickly. By the time it's discovered,

it's usually already dead. But if for any reason it's not, we do not have the medical technology to unimplant and reimplant a fertilized egg that has implanted in the wrong place. Now, remember, once it's implanted, it's getting blood, for instance, through those vessels. And so there's just no way to take it off of those vessels and put it into the right place. Obviously that would make all sorts of pregnancy problems much easier if we knew how the technology to implant in uteruses to begin with. But we don't even have that from like an IVF standpoint. You're literally like you shoot a ping pong

into the uterus and hope it sticks. That's pretty much the science behind it, David. So when it comes to ectopic pregnancies, they're just tragic because you're not choosing, for instance, this isn't like a cancer diagnosis where you're choosing between the life of the mother and the life of the baby.

Unfortunately, there is no life of the baby option. But the life of the mother is very much in danger. Because if the blastocyst keeps dividing and growing, it will eventually, it doesn't take much, by the way. by the way, it doesn't take a very large set of cells to break the fallopian tube, at which point the woman will hemorrhage and potentially, but also kind of likely, die. Now, if the fetus is already dead at that point, as is again quite likely, so it's not dividing and growing, you still have a problem of you have this, you know, what is then at that point basically a tumor-esque thing sitting in the fallopian tube that can still cause all sorts of problems, including still hemorrhaging and death. So if you go into your

doctor, as I did at one point, David, and, you know, they say that you on the ultrasound have an ectopic pregnancy. They generally are asking you to go into emergency surgery. Like you walk into your OBGYNs office for like a, you know, no big deal thing. You usually don't even know you're pregnant. You're just like, something's not quite right. And you're being whisked off to emergency surgery at a nearby hospital. It is not ideal. And it's, it's just incredibly, it's miserable. It's heartbreaking. It's scary. Like all the feels and in no point, is there any hope that like, if you were willing to risk your own health, that you could have this baby and that sucks. It just sucks, David. Um, and so just for my own, like version of the story, which I haven't told listeners before, cause, um,

this happened a year ago last week, actually. Um, so that's what they told me. And they're like here, you know, please walk down the hallway to the surgery center. Like there was a hospital attached to my OBGYN. And I asked if they were 100% sure that it was ectopic. And they said, you know, we can never be 100% sure. and blood results to compare another ultrasound that would compare after 48 hours. What would we know then? And the answer was like, well, you'd be able to look at some of those blood numbers that tell you how pregnant you are. By the way, when people say you can't be a little bit pregnant, they're wrong. You very much can be. So I was like, well, I want to wait the 48 hours just in case, you know, you hear these stories, right? You never know. And they were like, okay, let us walk you through this. How far away do you live from the hospital? And I was like, I don't know, like 15 minutes. They were like, nope. How far away do you live from the hospital

exactly? And I was like, I live 11 to 17 minutes away from the hospital because there's a contra flow bridge that sometimes you can't take. They're like, okay. From the second you feel any pain, you have 30 minutes because you are hemorrhaging at that point. You have 30 minutes to get to the surgical center. If you want to wait 48 hours and you understand that, you can wait 48 hours. And you're like, okay. So I did. I waited the 48 hours. okay so i did i waited the 48 hours um it did that the the cells at that point weren't growing anymore so did hemorrhage and everything turned out fine but when i see something like this it's enraging david because it is shown as a pro-life bill it's not pro anyone's life there is no baby that will result from this with the technology that we have now and maybe ever. We're not even close. This isn't like we're

bordering on the technology, David. If we can't keep a fetus that's 19 weeks old alive, we're nowhere close to keeping a blastocyst that's approximately 14 days alive and implanting it somewhere else. So certainly not the life of the baby. And it's certainly not pro-life for the mother who, you know, as I'm sitting there being told that I have 30 minutes to get to a hospital, you know, give me a break. Okay. So I said something to that effect of like, this isn't pro-life for anyone on Twitter. And very helpfully, a lot of people wrote to me from Missouri, some outside of Missouri, saying that I was misreading the bill, David. And I was like, okay, I'm very open to that.

Please explain. And they said, well, the purpose of this bill is to prevent, it's actually to save the life of mothers with ectopic pregnancies. Because when we ban abortion in the state, what's going to happen, like in Texas, is that there's going to be a whole lot of requests for out-of-state abortion-inducing drugs. But if a woman who's pregnant takes an abortion drug and they never check whether it's ectopic, that can be dangerous. Because like I said, David, the death of the fetus at that point is not the end of the story if it's lodged in the fallopian tubes. And I was like, okay, I understand the purpose. Let's talk about that for a second. But also that that's not what the bill says. OK, but let's let's talk about the the purpose of that.

And I was like, why wouldn't you just mandate that anyone taking abortion inducing drugs has to have an ultrasound first? And they're like, we do. I was like, oh, OK. okay and they're like yeah but with the rise of telehealth during the pandemic you know some states you can maybe do a telehealth visit and they would ship you the drug and this is trying to prevent that i'm like okay but the way to prevent that is to say you have to have an ultrasound first honestly and um multiple men i will tell you i talked to about this who were then lecturing me on how dangerous ectopic pregnancies were i was like this is literally why we created the term mansplaining like you're telling me how dangerous it is and look if it had been a doctor or something a male

doctor can tell me how dangerous an ectopic pregnancy um a male lobbyist cannot right about how dangerous it is to take an abortion-inducing drug. Like, yeah, look, if you have an ectopic pregnancy, leaving it in the fallopian tube without a doctor knowing it's there can be dangerous. But let's be clear. I didn't end up having surgery, David. I was monitored every 48 hours with ultrasounds for six weeks because I didn't want to remove a fallopian tube. So it's not that, you know, this is like, oh, well, if this, then this. Like, no, as with most things in medicine, you would like a doctor to deal with this, not a lobbyist.

Okay. So here's their argument of why I've misread the bill, David. And even though it includes device and performing abortions, it is only intended to reach drugs and inducing abortion. So first of all, that's not what it says. Then it says in violation of any state or federal law. And their argument is that under Missouri state law, an ectopic pregnancy is not an abortion, removing an ectopic pregnancy. So therefore, it wouldn't be a violation of any state or federal law to, for instance, ship in a scalpel to perform an abortion on an ectopic pregnancy because it's not an abortion if it's on an ectopic pregnancy. But David, that means it's also not an abortion if you use drugs. So that means either the law does what I say it does or the law is void on its face

because you can't perform an abortion. Remember, I'm going to read that section again. The abortion was performed or induced or was attempted to be performed or induced on a woman who has an ectopic pregnancy. If you can't, under Missouri state law, perform an abortion on a woman with an ectopic pregnancy, then the whole law makes no sense. If you can perform an abortion on a woman with an ectopic pregnancy, this absolutely applies to any device scalpel that is moved across state lines to perform that abortion if it's in violation of state or federal law, which in theory, if Roe is overturned and they pass a heartbeat bill or something, or just a six weeks

bill, in theory, you could have an ectopic pregnancy that still exists at six weeks. So this raises something, Sarah, and we're going to get beyond Missouri here. This raises something. What we're seeing increasingly is a series of bills proposed across this country that are very, very poorly drafted. Okay. They're very poorly drafted so that two sets of smart people look at the bill, read the words, and come to different conclusions. And so you raise this, you'll put your hand in your ear and you'll say, this bill is poorly drafted. And you'll even add, as you just did, you'll say,

look, think about somebody who was in my situation here. How did they deal with this bill? here, how do they deal with this bill? Okay. And 99 times out of 100, the response isn't, oh, you know what? I see the ambiguity here. We need to redraft the bill to make sure that this clearly unfair, clearly dangerous reading of this bill is not anywhere within it, that you cannot look at the bill and see this clearly absurd outcome being mandated by the bill. Instead, the answer, the response is, well, look, here's what our intentions were. And what I want you to do is deal with our intentions. And we get this

all the time, all the time. And I'd say, no, no. If you have an intention, express it in the bill. Okay. Because the only thing that's going to matter is the bill. That's the only thing that's going to matter. The law is not what's written in your heart. Okay. The law is not what's written in your heart. And, and look, Missouri bill drafters, I'm not going to presume for a minute. I do not want to presume that what's written in your heart is that, that a per, you know, a person in Sarah's situation should face legal difficulties in this state. If that's not written in your heart, put it on the freaking page, okay? And if you detect some edge in my voice about this, there's a good reason. One is, imagine being some, you know, imagine

if you're in Sarah's situation, if this law passed as was originally written in the state of Missouri, imagine the urgency, the vital urgency of trying to figure out what the law freaking really means. You know, when people, a person's life is on the line, it's ridiculous. It's just ridiculous.

And then moving beyond the life and death issue that we just talked about, And then moving beyond the life and death issue that we just talked about, we keep encountering all of these people who come to us to talk to us about state laws that might as well be written in crayon and saying to us, why aren't you dealing and talking and acknowledging the feelings behind the bill. I got a lot of those tweets. Got a lot of those tweets. I do not care what your feelings are behind the bill. I'm reading the bill. I don't need to know your feelings because a court's not going to know your feelings. A doctor's not going to know your feelings.

And a woman who's being told, hold on while we try to figure out whether we can wheel you into surgery or not is not going to care what your feelings were. out whether we can wheel you into surgery or not is not going to care what your feelings were. And look, now other people have reached out and said that they're proposing an amendment to it to try to fix some of this. Great. Good. But it shouldn't take this. There should be people more thoughtful who actually know how to draft laws, drafting your laws in Missouri, frankly. And the pro-life lobbyist who was tweeting about it from New York, actually know how to draft laws, drafting your laws in Missouri, frankly. And, you know, the pro-life lobbyist who was tweeting about it from New York, maybe he drafted it for them. I don't know. But regardless, I'm very concerned that you're defending this by saying what the purpose of the bill is. Literally, at one point, David, one of the arguments was, if you go look at the title of the the section of the law that it is um amending

it applies to drugs the title is about drugs titles of laws don't matter no texts texts of laws matter yeah so i look um david mean, you're pro-life. This whole thing is so frustrating when the pro-life community says that they are looking out for women and writes a law like this. I can't help but think that your sloppiness reflects the lack of interest you have in the mother's health. That sloppiness reflects a lack of interest you have in the mother's health. That sloppiness reflects a lack of care and concern. Yes. If you are in all areas of life, in all areas of life, if somebody, if you go to get your car fixed and somebody like leaves a wrench under the hood and you say, and the mechanic says, I really did care about this job.

No, no, you didn't. I mean, that's evidence that you didn't. Sloppiness reflects a lack of care and concern. And we get this and we get this on this issue, which is a life and death issue. We get it on issues like the anti-CRT laws. We get it on the issues like the Florida don't say gay law, where you criticize the text of a law and someone says, please acknowledge the feelings of the people who are demanding these laws. I'm over it. I'm over it. Okay.

It is not my job to say, to kind of come up and give somebody a side hug and say, you know, look, I get that you're really, really concerned about this stuff. And there's a lot of reasons to be really, really concerned. And, you know, and I'm, I'm, you know, a hundred percent agreement with your really, really, really big concerns. Now that I've expressed concern enough times, can I tell you that the law that you're actually trying to pass is unjust? Can I say that? And why is it that, well, anyway, we have an epidemic of laws being proposed in this country that are motivated by highly emotional hot button issues that are just terribly written. And then what moves into the discussion about it is then everyone starts lying about them. Everyone starts lying about what's actually in the bill. I mean, and this

might be a transition to the Florida, quote unquote, don't say gay bill. I've never seen so much dishonest commentary about a single state law, I think in my life. Well, let's read it. Okay. Let's read it. So here is the, uh, it's only seven pages. This is the amended. This is the one as amended and passed. Correct. Uh, correct. So here's the amended version This is the one as amended and passed, correct? Correct. So here's the amended version that matters for our purpose. Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade three or in a manner that is not age appropriate or developmentally appropriate for students and according with state standards. So first of all, only instruction is banned. A teacher

mentioning that they have a same-sex spouse is not instruction. You know, even though I think the word instruction is ambiguous in some cases, it would not be ambiguous in that case. So all of the articles I've seen about teachers not being able to ever mention the fact that they're married, no. However, I've also seen defenders of the law say it only applies kindergarten through grade three. And why should anyone be talking about sexual instructing on sexual orientation or gender identity in kindergarten through age three, grade three? I agree. But there's an or. Or in a manner that is not age appropriate or developmentally appropriate for students and according with state standards.

Who? So, first of all, that would put any teacher who teaches three through 12 still in legal jeopardy, though it's unclear what legal jeopardy they are in, David, because again, as I said, aside from, I think, you have a spouse or you have a picture of your same-sex spouse on your desk, clearly that is not instruction. However, the word instruction is ambiguous and the ban on instruction in a manner that is not age appropriate or developmentally appropriate for students. Okay, so David, is it a specific student in your class or is it all of the students? And it says in accordance with state standards, but who is determining then whether it's that

piece of instruction was appropriate in accordance with state standards, as in, can the parent decide that it wasn't age appropriate for their student? Is it the school board? And it appears to me based on like just the most plausible reading that, you know, you can be sued under the argument that it wasn't appropriate and that it was instruction. You know, for instance, if a book is assigned and that book talks about gender identity, even if it's not instruction about gender identity, like as maybe you would normally see it, the book itself would be considered instruction. Anyway, it's ambiguous in that. So David,

you and I have said that we think there's a lot of overbred lawsuits that can be brought around this, no doubt. But look, so many of the don't say gay headlines, first of all, say don't say gay. That's not what the law says. But also the defense that it only applies kindergarten through third grade. No, it applies K through 12. It's just that after third grade, it's not a complete prohibition. It's almost worse in that it's a, I don't know, prohibition. Right. Yeah. So every, all of the stuff that was saying, don't say gay, that is not accurate. That is not accurate. All of the answers on the right that are saying, well, this is about K through three. That is not accurate. It's the answers on the right that are saying, well, this is about K through 3,

that is not accurate. It's partly about K through 3, but it's also about more than K through 3, and it's about more than K through 3 in terms that are not obvious and self-defining. And so you've got some real due process vagueness issues here, for example, about what is age appropriate. I mean, this is not. And then again, as you said, Sarah, what is age appropriate for this? It's for students in general, apparently from the text, even if it might be age and developmentally appropriate for the specific student you're talking about. And instruction, it would seem to me that if you assign a book and the book has elements in it about sexual orientation or gender identity, somebody's going to have a real possibility of arguing successfully that that's instruction, even though it might be incidental to the purpose

of assigning the book. So again, you have a law that is, I believe, quite poorly drafted because it does not give, say, a 10th grade teacher clear guidance on how a 10th grade teacher is supposed to behave. Clear guidance on how a 10th grade teacher is supposed to behave. So that's a, that's poorly drafted right there. That is then relentlessly, relentlessly mischaracterized in the public debate. I mean, just relentlessly. It's, it's amazing.

It's absolutely amazing to me. And then, and then, you know, you don't have, this is what's frustrating to me, a lot of these bills right now are originating from the right side of the aisle. And because of the tribal instincts that we have in this country, conservatives are not calling these bill drafters to the carpet to say, draft a good bill. calling these bill drafters to the carpet to say, draft a good bill. Okay. Instead, what they're saying, what they're doing is they're rallying to take on the misrepresentations of the left. Okay. Do both. If the left is misrepresenting the bill as a don't say gay bill, take that on. But if the bill is vague and overbroad, you can still take that on too

and amend the bill. But everything has to be so tribal that you have entire news outlets on the right that just seem to be dedicated to nonstop opposing propaganda on these things. And they don't call the bill drafters to the carpet. They don't hold people to any sort of standard of clarity. And it's really frustrating. And people's fundamental constitutional rights are at stake here. And even if you say that teachers don't have First Amendment rights, which we're going to get into here in one second, due process. Vagueness is an issue that sounds in due process. It's the idea that before I'm going to be punished for something, I got to know what I'm doing is

wrong. It's a pretty simple kind of standard that says the law has to be written in such a way that I got to know what I'm doing is wrong. I got to be able to understand it. And when you write a law like this, you're telling teachers, you're not providing teachers with an understanding of the limits of their behavior. And you're essentially saying, well, you're going to have to figure it out in litigation. It's no way to run a railroad, Sarah. And we'll take a quick break to hear from our sponsor today Aura, ready to win Mother's Day and cement your reputation as the best gift giver in the

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Use code ADVISORY at checkout to save. Terms and conditions apply. So this brings us to a teacher in Kansas. All right. So I'm going to quote from a CNN story. We'll put the CNN story and the complaint in the show notes. But it begins like this. A Kansas teacher is suing her school district superintendent, board members, and principal after being suspended for not using a student's preferred name. Pamela Ricard, who teaches math at Fort Riley Middle School, says she refuses to use the preferred names and pronouns of transgender and non-binary students because it violates her religious beliefs. beliefs. After being disciplined multiple times for refusing to use a student's preferred name, Ricard filed a federal lawsuit against the Geary County Schools Unified School District on Monday. So this was last Monday. The complaint, which we'll put into the show notes,

is interesting. It sort of walks through a pretty complicated series of the teacher refusing to use pronouns or a preferred name, various policy changes and policy response to the teacher, and a series of cause of actions here. So first cause of action, violation of plaintiff's First Amendment right to freedom of speech. This is interesting. I'm going to read a couple of paragraphs. I'll read that one key sentence again. By punishing and threatening to punish Ms. Ricard for expressing her views regarding gender identity both in and out of the classroom, I added the emphasis, Sarah,

defendants have retaliated and are retaliating against Ms. Ricard for exercising her First Amendment rights. Now, why is that so interesting? So we have, basically, we have a ton of conservative legislation being written right now, anti-CRT legislation, based on a fundamental premise that a teacher in the classroom, that a teacher in the classroom, when addressing and communicating with students, has none, zero, nada First Amendment rights. None. Now, this is actually in accordance with a lot of prevailing precedent. It has not been completely settled by the Supreme Court, but it's in accordance with prevailing precedent. This is filing a lawsuit saying when it comes to pronouns and names that the teacher has First Amendment rights

to speak on a matter of public concern within the context of teaching and scholarship. Okay. So this is saying, wait a minute, the Garcetti versus Sabalas decision, which did not, which sort of left unaddressed whether in the context of teaching and scholarship, there are any First Amendment rights on the part of public employees, should be interpreted to hold that that teaching and scholarship provision, which has been held to protect teachers and public universities, should also apply to secondary education. Okay, so you now have a conservative lawsuit based on pronouns sounding in the First Amendment. There's a pronoun case in Virginia that's under the Virginia Constitution. This is one on the federal constitution that says teachers have rights on teaching and scholarship. And that's coming from the right. And you have a whole bunch of laws coming from the right saying, based on the premise that teachers have no ability to enjoy any First Amendment rights on teaching and scholarship. Something's got to give, Sarah. You know, I actually read an interesting book about lies under the First Amendment by a law professor at George Washington. And she had a novel First Amendment theory that we should consider the president a public employee for speech purposes and that would limit the president's uh first amendment rights to be able to

lie for instance um this of course was being applied factually to one president in particular former president. I don't, yeah, public employee speech laws have always been interesting because when there's a set of facts, generally to a lay person, you kind of are like, that one makes sense. That one doesn't make sense. There's a certain common sense-os to it. But we can't leave it like that in our culture. So now we're going to litigate the hell out of it, including, by the way, David, the Coach Kennedy case, which will be argued here shortly. And so we'll be talking a lot about public employee religion and speech here coming up soon. But yeah, look, you can't can't have it both ways. And it's one of the things I really love about this term right now, not just at the Supreme Court, but just sort of this term legally speaking overall. It's forcing both sides to be consistent.

And I love that. Yes, it really is. And, you know, a lot of the anti-CRT laws seem to be kind of based on the premise that, and a lot of commentary around them seems to be based on the premise that these public school teachers, and I was just in an event not too long ago where, you know, there was a lot of discussion about sort of how public school teachers are educated. And I do agree that, you know, schools of education tend to lean heavily left. But public school teachers are not a monolithic left-wing community of indoctrinators. They're the people you're going to church with. They're the people that are, you know, part of your civic associations.

Public school teachers are not a class apart. You know, when you, if you're talking about sort of the public school teachers in our local school districts, they're broadly reflective of their community and their, their views. And so sort of treating them, passing laws that treat them as if they're kind of a monolithically left-wing community that therefore has to be tightly regulated, it's often at odds with the reality, which is they're pretty diverse. And some of them are actually religious conservatives, for example. And they don't want to have their speech monolithically regulated in ways that would stifle their ability to sort of communicate their views on matters of important matters of public concern. And so what's interesting is

we've kind of had this reverse, Sarah. And when I was coming up through the conservative legal movement, my, our position was that Garcetti versus Sabalis was not a great case. And that, especially when it came to teachers, this idea that a K-12 teacher had no rights at all when they're in the classroom, no free speech rights at all when they're in the classroom, was deemed pretty problematic because it was going to be seen like this, that maybe a left-leaning or left-wing establishment would be telling a Christian professor or Christian teacher that you're going to have to toe the line. You're going to have to toe the line with our ideological point of view. And we always kind of took a point of view that Garcetti versus Sabalus,

the follow-on cases that Garcetti versus Sabalis, the follow-on cases from Garcetti should pretty clearly note that teaching and scholarship, that interest wasn't just limited to college professors. And then along comes to sort of the anti-CRT wave. And it's like, nope, nope. All of that's old news. What we need to do is really make sure that we put the clamps down on teachers. And now we have both of them.

It's side by side and they cannot exist. They cannot exist. Well, David, I want to tease a little bit about what we're going to do on Thursday. We have given environmental law short shrift too much on this podcast. And so Thursday, we've got some environmental law cases to dig into. But don't worry if you're already rolling your eyes at environmental law, because this is it's not a sleeper case from this term. It might be one of the biggest cases. I mean, Dobbs, of course, is overshadowing everything. But the EPA clean power cases are back again. And we'll talk about those. But David, I want to tease because we've got a larger discussion to have about environmental policy, legislation, advocates,

and of course, the Supreme Court. And so I want to read a paragraph from the latest opinion out of the Ninth Circuit by friend of the pod, Judge Ken Lee. This is a tale of two owls. For the northern spotted owl, it has been the worst of times. It remains a threatened species and its population continues to dwindle in the Pacific Northwestern Northern California. But it has been the best of times for the barred owl. Its abundant population burgeoning, the barred owl has expanded westward and encroached on the spotted owl's habitat. And barred owls have even been spotted attacking their brethren bird.

Beautiful writing, David. I mean, that's fantastic. Now, this is a case about whether the United States Fish and Wildlife Service can shoot barred owls or their habitat, even though, again, the whole experiment is to try to help the spotted owl. And we're going to get to why environmental advocacy has gotten turned on its head on Thursday. But David, the important thing for me here is that my first friend, my best

friend was a barred owl. His name was Mr. Owl. And he was a rescue, as you can imagine. And how old were you? How old were you? How old were you? How old were you? Three, four, three, more like three. And once he was, he was fine. He hit his head during a thunderstorm and he was rehabilitated and released into our backyard and he just stayed. And so every day I would go outside to play and he would meet me on my like, you know, fort that had a slide. And when I went down the slide, he would fly down the slide. that had a slide.

And when I went down the slide, he would fly down the slide. And when I sat on the fort, pondering over the edge of my domain, he would also sit on the wooden rails, pondering our domain together. And the idea of shooting these large, beautiful owls as an experiment to help the spotted owl.

Look, I'm sure spotted owls are great, but I've never been best friends with a spotted owl look i'm sure spotted owls are great but i've never been best friends with a spotted owl yeah and so um unfortunately this case ends for the spotted sorry uh with the shooting of barred owls so i don't you can't really say it ends for the spotted owl since the people suing were claiming that it was going to hurt the spotted owl so everything was for the spotted owl but regardless it ends very poorly for the barred owl because the experiment will commence in the shooting of barred owls in the Pacific Northwest under this experiment, the barred owl removal experiment. So sterilized language, David. You're shooting my friends and his cousins.

You're shooting my friends and his cousins. I, for one, and I just want to keep hyping this future podcast. I'm excited about this podcast because it hits an issue that I think is completely underappreciated, which is the way in which well-intentioned laws often end up conflicting with each other and playing out in real life in a way that results in absurdities. It results in absurdities, and we're going to talk about one of those absurdities in how do environmental laws impact the enrollment of Berkeley? Of Berkeley. Environmental laws impacting the enrollment

at University of California, Berkeley. And it's just really interesting stuff. And it's how sort of one wing of the left, Steinmeier is another wing of the left. And those of us like me, Sarah, who like property rights, are sitting here saying, I told you so. Well, it empowers NIMBYs. That's the main thing it does.

Not in my backyard, folks. That's what these laws have done. So we'll get to all that environmental law and all the things that aren't environmental law and are actually just about sort of the larger culture of over legalization of things sometimes yeah there's no it's going to be good it's going to be good all right well thanks for hanging with us through a multiple topic podcast with minimal supreme court content but that's going to change that is going to change. That is going to change. This term is going to get so as the decisions start rolling in. My goodness. But yes.

So thank you so much for listening. Sarah, we need to promote dispatch live. That's right. Tomorrow night. So Tuesday night at 8 p.m., we're going to have a special dispatch live AO takeover. David and I are going to be reviewing the Supreme Court term, the hit parade cases, the sleeper cases. So if all of this has been a little too in-depth for you or you want to turn your friends on to it, tomorrow night will be sort of a summary, an overview, an introduction, if you will, to some Dispatch love.

It's open to members. You can become a member for $10 a month, though. So for $10, you can join Dispatch Live Tuesday night, 8 p.m. Eastern. David and I, with an advisory opinions takeover. Jonah and Steve will be nowhere in sight. Yes. And just to tell you, not to use peer pressure or anything, but given the growth of our membership in the last few weeks, I can say if you're not joining, you're missing out. Everybody's doing it.

Everybody's doing it. And so you want to be like everybody else. Go ahead and join. And when you join, you can comment. And that's where we're lurking in response to questions about advisory opinions. So we read all the comments and we're asking you, once you subscribe to The Dispatch,

you can comment on the advisory opinions page at thedispatch.com. And we read them. And I have to admit, Sarah's better than I am at responding. But I'm going to do better. I've been traveling. I'm going to do better. I promise. Baby got briefs.

So please go subscribe to the dispatch and please rate us on Apple podcasts and, or wherever you get your podcasts. And we will talk to you on Thursday. Bye.