Advisory Opinions - Supreme Court's Texas Abortion Law Decision Explained

Episode Date: September 2, 2021

Late Wednesday night, the Supreme Court, in a 5-4 decision, refused to block a Texas abortion law that went into effect earlier in the day. Sarah and David engage in a very detailed discussion of Whole Woman’s Health v. Jackson, equipping intrepid listeners to combat any bad legal hot takes they might encounter. They cover what this means for states that want to challenge constitutional rights, for women in Texas with nonviable pregnancies, and, the million dollar question: what this means for the right to abortion established by Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Show Notes: -Supreme Court opinion on Whole Woman's Health v. Jackson -Definition of Ex Parte -Definition of Qui Tam -Link to the complaint and emergency applications in Whole Woman’s Health v. Jackson Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah, this isn't exactly an emergency pod because it's happening on our normal recording time, but wow, wow. But it is. It is an emergency pod because we're going to clear the deck. We had a whole list of things to talk about, and we're just pushing them all.

And we're going to focus on the thing that you're all here for, which is the Supreme Court's 5-4 decision in a Texas abortion case. Yes. So here's what we're going to do. We're going to walk you through this thing from A to Z, okay? through this thing from A to Z, okay? And I want you listeners, yes, that's right. So I want you, dear listeners, to please cleanse your mind of everything you've seen on Twitter. Just take a moment of meditation, cleanse your mind of everything that you've seen on Twitter, cleanse your mind of everything you've seen in these rapid hot takes, because we're going to break this down, and it is not what you think it is. I can almost guarantee that. You can tell us at the end. It's not what you think it is.

This is not a case that has overturned Roe. It doesn't actually tell us anything about how the court will rule on Roe when it ultimately is ruling on it later this term. So, okay. How should we do this, Sarah? Do you want to start with the bill text? Yeah. Yeah, let's start at the very beginning. A very good place to start. Texas SB8, uh texas sb8 passed in the 87th legislature that's this one so uh section two this legislature finds that the state of texas never repealed either expressly or by implication the state statutes enacted before the ruling in roe v wade that prohibit and criminalize abortion unless the mother's life is in danger. Interesting. But the rest of this law is actually not going to have much to do with that. It's going to have to do with getting around all of the legal restrictions on these laws.

is that Section 171.208, Civil Liability for Violation or Aiding and Abetting Violation. And this says that you can, you, a private person, can bring a civil lawsuit against any person who performs or induces an abortion or knowingly engages in conduct that aids or abets the performance or inducement of an abortion. And you can, if you prevail, get $10,000 for each abortion that the defendant performed and costs and attorney's fees. So to put this in terms of our pod, me, Sarah gets an abortion. David is my doctor. Jonah can sue David, the doctor. Jonah cannot sue me, the patient. Jonah might be able to sue, you know sue someone that drove me to see David. I think that's a

little far-fetched, but a lot of people are mentioning that on Twitter. And I just want to say, it's not clear to me that that's obviously a stupid take. I'm not sure that it would work. But what it very much says is anyone reimbursing the cost of an abortion through insurance or otherwise is considered to have aided or abetted the performance of the abortion. So what this is not a criminal penalty. That'll be important. And two, what it's not. Is you notice in that little lawsuit that I mentioned between Jonah and David. There's no state actor who's a plaintiff or defendant. The only state actor

is the judge who is hearing the case. And that's going to be really important to this. So David, we've talked about this law, the text of the law itself. This is basically what existed as a law school hypothetical of how to get around injunctive relief. So all of these laws were getting enjoined before they ever took effect. And frankly, it's something that I think we've gotten maybe too used to in the last 20, 30 years, this idea that there's a space between when a law is passed and when it takes effect. And that's when we adjudicate all of these laws on their constitutionality. That has never been the way it worked though beforehand. A law would go into effect and then you would sue about it. In some ways, that's a lot easier

because there's a lot more merits-based stuff, standing questions that'll all come into play here in this law that we'll talk about. But in this pre-existing stage, it's always been something called injunctive relief. And that's the posture this case was brought in. So, okay, time out on that. The text itself, we've talked about it being really clever, but we thought it was too clever by half. Yeah. So here's, and just to make this very basic and very simple, especially for the non-lawyer listeners. So the normal heartbeat bill, this is a heartbeat bill. This is the normal heartbeat bill will prohibit a abortion provider from performing an abortion when a heartbeat, a fetal heartbeat is detected, which is very early, six weeks, five weeks, seven weeks. And the enforcement of that

law is up to the state. It's a criminal penalty to perform an abortion. And so if you are wanting to sue to stop the enforcement of the law, it is very obvious who you sue. You're going to sue the state. You're going to sue a state actor, and then the court, it is very obvious who the court will then restrain from acting, okay? It will tell the state you cannot enforce this law, all right? So if you look at the structure of this law, it is saying, and it actually prohibits a person who's a part of the state from even filing a lawsuit here as a private individual. So you cannot, the only people who can enforce this, and I say only, it's actually millions of people in Texas, but the people who can enforce this are the millions of private citizens of Texas who are not members of the state government or local government, not members of the government. So they can file a lawsuit. All right. Now, what that means is if I want to block enforcement of this law, I have a question to ask, which is who do I sue to block

enforcement of the law? I can't sue all that, you know, what's the population of your great state of Texas, Sarah? 25 million. Yeah, it's a lot of, you know, 20. I can't sue the 24,500,000 people who have no state government affiliation or whatever. So who do I sue to block enforcement of the law? Now, it's very clear if someone tries to enforce the law by bringing a lawsuit under it, I would be able to defend myself in court.

LPC legendary producer Caleb says 29 million people. That's a lot of people in Texas. Okay, our colony, Tennessee's colony has really grown up. But the, so you can't sue all of those people. But if you are sued, you're an abortion doctor and you are sued, you can raise defenses, okay, in that litigation. You can raise constitutional defenses.

And Sarah, here's where we get to another part of this law. So here's what the law did is it says, no, we're going to ban abortions, but we're not going to enforce the ban. We, the state of Texas, you citizens of Texas will enforce the ban. And then this is interesting. It limits the defenses that a provider or someone who aids and abets a provider may raise. So it says this, provider or someone who aids and abets a provider may raise. So it says this, a defendant against whom an action is brought does not, under section blah, blah, blah, does not have standing to assert the rights of the woman seeking an abortion as a defense to liability to this under that section unless, and then it provides a series of unlesses that basically involve the Supreme Court providing third-party standing on the defendant to assert

the rights of the woman. Now, let me put this in really basic terms. Imagine a law that does this. You may not sell guns in the state of Texas, All right. We're not going to enforce the ban on selling guns, but if anyone sells guns in Texas, any other person in Texas can sue them and get $10,000 plus attorney's fees. And you say, well, ha ha, that's absurd. You can't stop me from selling guns. And as soon as somebody sues me for it, I'll just raise that as a defense and win. And then the statute says, and you may not assert the rights of the gun buyer to the second amendment rights of the gun buyer as a defense. Wait, what? I can't do that. So that's kind of, unless there are certain circumstances that hold. So that's kind of what happened here. And essentially what Texas did is they said, all of the normal ways a pro-life

statute is enforced are out the window. Only, only private citizens can enforce it. And what that did, and that's so important to everything that follows. It's so important to everything that follows. Okay. That's my, that's my like 30 minute aside, Sarah. Yeah. Okay. So now let's dive into some real nerdery. This is not the first, like there's a, uh, there's a thing already out there that's like this, where you have individual, you know, already out there that's like this, where you have individual people standing into the role of the state. And they're called QTAM lawsuits. So this is sort of what this is modeled after. And I just think it's worth a little bit of a footnote on QTAM lawsuits. So it's spelled Q-U-I-T-A-M. And this is the idea that you, a private party called a relator, brings an action on the

government's behalf to recover damages for fraud against the government. So you bring a false claims act against a Medicare fraudster, and you get to recover a lot of money. And there's people who get super wealthy off this kind of thing. What's interesting, in the one hand, it's the same idea of individual people getting to enforce a law instead of the state. But in Ketam lawsuits, you literally are standing on behalf of the state. That's why you're called a relator. In this case, it's not totally clear what your quote unquote standing is as the private party who has no injury. So in my hypo, Jonah wasn't injured by my abortion. And so why does Jonah get to sue David to begin with? If this were in federal court, a federal law, Article 3 standing rules would almost certainly prevent Jonah from bringing that unless Congress had actually written a key Tam-esque legal fiction where Jonah is standing in place of the government. Now, this is state.

States can create their own standing rules. They are not bound by Article 3. But first of all, that's just like an interesting problem right there on the standing stuff. Second, okay, so this is brought, again, before the law ever goes into effect. So they can't yet, Jonah can't yet sue David.

Well, he can today. But when this was brought six weeks ago, Jonah couldn't sue David. So instead, Whole Women's Health, and if that sounds familiar, it's because they are the ones who brought the lawsuit in 2015, or rather the case that went to the Supreme Court in 2015, against another Texas abortion restriction, Whole Women's Health and a bunch of other abortion providers sued a whole list of people, including Jackson is actually, it's called Whole Women's Health v. Jackson. Jackson is a state judge. He's a state district judge of the 114th District of Texas. They also sued Texas Attorney General Ken Paxton, a bunch of people of the state medical board.

And so part of the question here was like, okay, the attorney general has nothing to do with this. So even if the court says, you attorney general may not enforce this law, you are enjoined, nothing would happen. And the court, therefore, doesn't enjoin a law. They enjoin a person. So enjoining Ken Paxton would give the plaintiffs no relief. But the more interesting question is that state judge. Because remember, I said that in this lawsuit that can happen today, Jonah sues David.

Jonah and David are both private people. The only state actor in that room is the judge. So can you enjoin the state court judge from basically participating in such a lawsuit? That's a very messy question. So there's a thing called, and this is the whole ballgame, right? There's a very messy question. So there's a thing called, that's like, and this is the whole ball game, right? There's a thing called the 11th amendment and the 11th amendment basically says that, uh, states are immune from suit. And in 1908, this was becoming a mess, right? Like what? You can't sue states. They're breaking the law all the time. They're doing unconstitutional stuff. Like now we have the 14th amendment. How does it work where I can enforce my 14th amendment rights when it's the state violating them if I can't sue the state.

And so in this case called ex parte young, we created a legal fiction. There are many legal fictions, some more absurd than others. This one is one of the more absurd ones. There are many legal fictions, some more absurd than others. This one is one of the more absurd ones. And ex parte young, they said, aha, under the 11th Amendment, you can't sue the state, but you can sue state officials because you're suing them as individuals, not the state of Texas itself.

And if you're wondering why that makes any sense, then you get it just fine. Like there's no, I can't really, there is no better explanation. That is what the legal fiction is. And that is what it's called. And by the way, it makes it really funny because when you sue them under the 14th amendment, they are in their official capacity, remember, which is why you can't get damages and everything under qualified immunity. But when you sue them, you also can sue them and get 11th Amendment go around because you're suing them as individuals and not as the state. So yeah, ex parte young, it's a huge mess. So the question before the Supreme Court was, can you, under the 11th Amendment and ex parte young in join a state judge from basically overseeing

a lawsuit in civil court brought by two private parties under Texas law. And spoiler alert, the answer from everyone was kind of, I don't know. That's really what the court said today. I don't know. Yeah. Yeah. And I think that's really important. So, you know, we've talked a lot about the unique procedural posture about this case, the unique provisions of this law. And we haven't really gotten to, we haven't really even mentioned other than the very brief preamble that you talked about, the words Roe, Vee, or Wade. Okay. That's because as of right now, again, before the law went into effect, the lawsuit that was brought on the front end was not actually about the merits. No one frankly was really disputing the merits and that a six week

heartbeat ban on abortion clearly did not meet with the current standard under June Medical, Hellerstadt, Casey. I actually am really annoyed that people keep talking about Roe because Roe's standard no longer exists. So I am going to refuse to talk about Roe except in mocking other people who keep talking about Roe. So the whole question here was, did you sue the right people? And can we put an injunction in place before the law goes into effect? Can I just skip to the end of this whole thing real quick? Because the fight was over whether you could get an injunction. Once the law went into effect, Jonah can now sue David. And Jonah and David know each other well. Jonah's super pro-life.

Maybe David's not. They're both going to get their own attorneys. I don't mean to make this sound like it's some sort of collusive evil thing here. These cases actually happen a lot of the time. They're going to go to court and then it will be only on the merits. There's no question over whether the state judge and ex parte young and all this weird legal stuff that we just, the courts did not, we're not prepared to deal with in 72 hours, frankly. That's what actually happened. So that lawsuit is going to get filed today, maybe tomorrow, maybe it will take until tomorrow, but I kind of doubt it. Yeah. So let me read the most important sentences of the decision,

which are all there. They would have made no sense before we gave you this background. Okay. So here are the sentences that make sense now that we've given you this background. The state has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. That's sentence one. Remember, this law says, we passed the law, the state passed the law, but the state can't enforce the law. Can't sue the state to stop a law, it's not enforcing, not a proper defendant. Number two, nor is it clear whether under existing precedent, this court can issue an injunction against state judges asked to decide a lawsuit under Texas's law. That's what Sarah was just talking about,

ex parte young. Now, note the court did not say the court cannot issue an injunction. It said, nor is it clear. So it was not reaching a decision on that point. It was just saying, I don't know. Then it says, finally, the sole private citizen responded before us. They sued a private citizen, somebody who could theoretically file a lawsuit, has filed an affidavit stating that he has no present intention to enforce the law. So in other words, why are you suing me? Okay, I'm not going to enforce the law. So then here's the key. It says, in light of such issues, we cannot say the applicants have met their burden to prevail an injunction. That was the issues. And then here's the last sentence, and this is the one that everyone's missing. Everyone's missing. In reaching this conclusion, we stress

that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicant's lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas's law and in no way limits other procedurally proper challenges to the Texas law, including in Texas courts. And that, Sarah, is exactly what you're talking about. The next phase here is that there will be a private citizen who will sue now, and then this battle will be joined on the merits. Now, here's the question, though. You're the lawyer. I'm asking you a question. You're a lawyer for Whole Women's Health. Yep. Okay. You know that the Fifth Circuit

is probably the most conservative circuit right now in the United States? Definitely. Definitely. Do you advise your client to continue to perform abortions until in this time between the passage of the Texas law and the ultimate decision in the Dobbs case? Or do you advise your client not to do so until this issue is definitively resolved? So a few things here. One, this is why you do a setup case. You perform one, you call Jonah and let Jonah know that you are about to perform the abortion. You will call him when the abortion has been completed, and you call Jonah when it's been completed, and you create that setup case. And all things like being equal as Whole Women's Health, that is the only abortion that I provide

this week, probably. Understanding that this person will sue and that we can get that case moving. understanding that this person will sue and that we can get that case moving. Because, by the way, it's $10,000 per abortion. $10,000 is nothing compared to what they have already spent just on this injunctive phase of the lawsuit. So $10,000, even if in the end, somehow they lost, which we'll get to that later why I don't think they will. somehow they lost, which we'll get to that later why I don't think they will. No problem. They'd write that $10,000 check right now to just skip straight to the Supreme Court if they could. Second, I do think it's worth mentioning. So the fetal heartbeat bill obviously does not cover any pregnancies that do not have a heartbeat. So first of all, of course, you can abort a pregnancy before there's a heartbeat. But also, you know,

if you are a woman who has had a miscarriage and the baby is not miscarrying, which is a lot of abortions, and we don't have great statistics on any of this, which is very frustrating to me. But, you know, I've seen the stat out there that this will cover 85 percent of abortions in the state. But they are using that with just the six week mark. They are not including no heartbeat miscarriage abortions that have to happen. Yes, they are still abortions. Yes, they are still abortion procedures. They're the same procedure often. But it is, you know, they wait usually two weeks after they don't have a heartbeat. They check the heartbeat again. There's still no heartbeat. Your body is not

flushing the pregnancy at that point. It becomes very unhealthy for you to continue doing that. Infections can set in. There can be other problems. They can still perform those procedures under this law, quite obviously. There is also an exception for emergencies. Ectopic pregnancies would certainly fall under that. You can have a heartbeat with a fetus that is an aflopian tube. The mother could be killed at any moment in those pregnancies. You can still perform those abortions. Life and health of the mother is weirdly not explicitly in there. It just says emergencies, which I think covers those. So I just wanted to answer your question really fully, David. Whole Women's Health will still be performing abortions this week. But if I were advising them, I would say to perform one

post six week heartbeat present in violation of this law abortion after calling Jonah. And I'm sorry to Jonah that I keep using him. Right, right. You do the setup litigation. And so the bottom line of this, and I think if you're going to, so if you're going to talk about, okay, is this a precedent for drafting laws in the future that allow you to escape a constitutional review? Here's how I would describe it. It is a precedent for drafting laws in the future that delays constitutional review, not escapes constitutional review. It's sort of a way, it's an unconventional way of drafting a law that then what it does is it, it's a way to prevent pre-enforcement challenges. You cannot prevent, and you cannot prevent a post-enforcement challenge.

And you cannot prevent a post-enforcement challenge. So there legal dilemma in how to mount a pre-enforcement challenge. And you kind of saw the dilemma in the dissents. So you had a per curiam opinion with the five justices, and that where it was 5-4, and so you had the per curiam decision with the 5-4 that we're saying, look, essentially, there wasn't a proper defendant here. There's going to be opportunity to adjudicate the constitutionality of this. It's just not this case.

And oh, by the way, we're not offering our opinion on the constitutionality. That's all the 5 did. And the 4, who wanted to sort of maintain the status quo were kind of groping for how to do that, to be honest. How do you do that? Who are you defending? Who are you enjoining here? Because the order has to apply to somebody, to some persons. And the chief justice who wrote sort of the lead dissent with Breyer and Kagan, he's basically saying, hey, we just need to keep this status quo, but you're enjoining one judge and one dude.

That's all you're enjoining in this case if whole women's health prevails. You're not enjoining poor Jonah here, who's just been, or Steve or anybody else. And so there was really a, you could see the dissents that they were really groping for, okay, what's the, who's the relief granted against here and how would it be effective relief if this case literally grants standing to every single one of the 29 million Texas citizens other than state employees. And so I think that that's the really key part here, is it was a delay of adjudication. It was not a bar to adjudication. Yeah, but. Yeah, but. Here's my yeah, but.

Remember back to that CDC emergency relief that they asked for, and Kavanaugh said, the CDC exceeded its authority, but since this runs out in a few weeks, I'm going to let it ride so there can be an orderly wind down. The five could have, well, let me start with this. The five, and we don't know who wrote it,

right? Because that's what a per curiam means. It just means it's on behalf of those five justices. The five could have said almost something exactly like that. This law is clearly unconstitutional under our current precedent. However, we do not think under ex parte young we can enjoin this judge. And this is a intricate legal question under ex parte young, and we'll just need to have some more ex parte young litigation. But make no mistake, you'd be mad if you think that this is real law here. They did it under CDC. So this argument like, well, it would be an advisory opinion. They do that all the time. So I am very sympathetic to the freak out on the left for that narrow reason. Why didn't they say that obviously the Texas law violates current court doctrine on abortion restrictions?

And if they didn't say that, can you as the left read into that and all of those other things? And if you start from that premise and then extrapolate all this other freak out that I'm seeing on Twitter, I am with you. I think that is a reasonable freak out to have. Now, in the Roberts part of it, he says the statutory scheme before the court is not only unusual but unprecedented, in which he's talking about this ex parte young problem. I would accordingly preclude enforcement of SB8 by the respondents to afford the district court and the court of appeals the opportunity to consider the propriety of judicial action and the preliminary relief pending consideration of the plaintiff's

claims. Although the court denies the applicant's request for emergency relief today, the court order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the court does not address the constitutionality of this law, it can, of course, promptly do so when the question is properly presented after full briefing and oral argument with consideration, yada, yada. after full briefing and oral argument with consideration, yada, yada. So basically, you're right, David, that what I read John Roberts is saying is, don't worry about who we're enjoining. Just say the word enjoin. A very institutionalist dissent from Roberts, obviously, because institutionalists for several reasons. Yes, this is abortion. And so changing the status

quo, always sort of a treacherous thing for the court to wade into, but also institutionalists in the fact that Texas was intentionally trying to use and abuse this ex parte young loophole where there were some, you know, unclear areas about what you could do, whether you could enjoin a state judge enforcing state law. And so basically what Roberts is saying is don't worry about who we're enjoining, just enjoin. I find myself siding with Roberts here. This law didn't need to go into effect. They could have enjoined the judge and worked out whether it was appropriate to enjoin the judge later. Or the per curiam should have said, this law clearly runs afoul of our current precedent. However, we believe under ex parte young, actually, we cannot enjoin a state judge. Don't just say, we're not sure, so we're letting this law go into

effect and we're not going to tell you anything about the law. This was unnecessarily provocative. Let me mount a defense of the per curiam, okay, and in a be careful what you wish for framework, okay? So here's the defense of the per curiam. Well, they have a case pending challenging Roe. Like there's one oral argument is set. And so do you sort of indicate where you're going to come out on that case that's pending right now that's set for oral argument in Dobbs? Or do you just say, we're not reaching a conclusion one way or the other? I think there's a lot to be said. While a case is pending, that is being briefed that goes right to these issues and Dobbs. It's extremely defensible in my view to say we're not reaching, we're not emphatically

not underlying, not reaching a conclusion on the merits here. I think that's very defensible given the context. the merits here. I think that's very defensible given the context. Now, the other issue here is, okay, a lot of people are high-fiving, look, look what we did. We put a law together that couldn't get a pre-enforcement challenge, and we've got validation from the Supreme Court of the United States about that. Okay, you just set a precedent that there is a way to draft a law that is going to make it really difficult to do a pre-enforcement challenge to a law that abridges any constitutional right. Any constitutional right. Okay. Any constitutional right. So that's the be careful what you wish for aspect of this. Now, again, as I was saying, it's not going to preclude a challenge to the law, a constitutional challenge to the law. It delays an effective constitutional challenge to the law.

But what it does do is that delay has consequences. So it has consequences. So let's say let's go back to the Second Amendment. Let's go back to the second amendment. Let's go back to the second amendment and let's say that you're talking about, hey, the Supreme Court has ruled in, you know, years, a couple of years down the line in Smith v. Jones, that you cannot have a waiting period for a handgun purchase. You're going to be able to carry a handgun with you. You're going to be able to carry a handgun outside the home. You're going to be able to carry a handgun with you. You're going to be able to carry a handgun outside the home. You're going to be able to carry a handgun inside the home or have a handgun inside the home. That's, you know, of course the Heller case. But anyway, it's cleared up a lot of these

ambiguities. You have a may issue. In other words, a person doesn't have to seek permission from the state. So then you have a woman who's threatened by an ex-boyfriend, and they're going to try to get a gun to protect themselves. Well, the state has decided, here's what we're going to do. We're going to defy Supreme Court precedent. We're going to prevent the state from enforcing it, and we're going to say that anyone can sue a gun dealer who sells a gun to a person who hasn't been able to produce a sworn affidavit certifying need. And by the way, if you're going to mount a defense to this lawsuit, you can't assert the Second Amendment rights of the gun buyer. And then this court decision is cited. Well, wait a minute. Hold on. You might have a situation where people who have an urgent need of self-defense are denied the right to self-defense while this kind of thing works its way through the system. careful what you wish for kind of court decision, I would say. So the people who are saying, oh,

this means Roe is gone, Roe is gone, Roe is gone, that does, it's not what this means. These people are saying, hey, we figured out a clever way around Roe. No, you didn't really. But here's what you actually did do is you created a way in which a state can deny constitutional rights to its citizens, at least for a specific time period. And is that the kind of precedent you want to set? I mean, it's worth asking that question. It's worth raising that question in this podcast. So a couple issues with this. One, the ex parte young question now is going to get sorted out, hopefully. There's now been an obvious problem. So A, maybe this would get sorted out and it will be held that, yep, you can sue a state judge in an injunctive posture to prevent the enforcement of such a law. Also, I do want to blame the whole women's health team a little bit here, just a little. Yeah, I'm glad you're bringing this up. Yeah.

I'll be curious to see if you blame them for the same thing I do. I'll be curious to see if you blame them for the same thing I do. The pro-abortion side has been a little bit spoiled legally in a lot of these cases because there's been sort of automatic third-party standing. They basically haven't had to be very careful in how they've brought any of these cases before, and everyone just sort of is letting them pass, go, and collect their $200 because of exactly this, right? Well, we're going to get there eventually. We need to do the merits at some point. Like, let's not be too picky about this. And so I think that they could have at least made this harder for the court to come out this way. They could have had their setup case

ahead of time. They could have called Jonah and said, hey, Jonah, will you agree that you are going to sue Dr. French as soon as he provides an abortion? Get that affidavit

and have the case set up that way so that David is suing in a declaratory action Jonah. They didn't do that. That was clearly a mistake now. Like, I get it. I'm in the cheap seats. But they knew this was a problem. That's why they're suing everyone under the sun. And they know there's this ex parte young defendant problem also, I think they just thought that no one would care too much because it was legally interesting or something. And I would have bet with them, by the way. I absolutely would have said that the Supreme Court, I said up

until 24 hours ago that I thought for sure the Supreme Court was going to enjoin the Texas law. I was wrong, so were they. Bad bet. But I wasn't betting with my, you know, whole profession. Right. I mean, so there were two aspects. One, I think I agree with you completely that the I dotting T crossing approach here would have been to get the setup case rolling immediately. So even if you're not, and even if, you know, I could see some pitfalls around, some pitfalls around trying to do it in a declaratory judgment fashion, maybe you file the setup case. Yep. Yep. You file the setup case on the instant, the instant the law goes into effect, and then you file a motion for a preliminary injunction, a response

and a motion for preliminary injunction same day. So everything happens same day. There's another aspect here. This came up in a rushed, a hyper-rushed fashion, and that's always dangerous. So writing over at Bench Memos, Ed Whalen points out that, so the law was signed on May 19th. The abortion providers waited till July 13th to file their complaint. So now again, Sarah, you're right. They have filed and won these things routinely for years, but this case was very different. This law was very different. And we have flagged on this podcast, the third party standing problem that they have brushed by over and over again. And the courts have brushed by it of whether abortion doctors have the standing or whole women's health abortion providers have the standing to bring lawsuits on behalf of women. And everyone's just sort of been like, eh, good enough. This is different

than that. This isn't just a third-party standing thing, but it's the same idea of like, they're used to just being close enough. Yeah. Yeah. They're just used to filing the lawsuit, get their injunction, collect their attorney's fees, go on. Okay. But what was interesting, so they filed this case on July 13th. They wait until August 7th to file their motion for preliminary injunction. So this motion for preliminary injunction is filed August 7th. Here it is September 2nd. It was September 1 with the court issued its opinion. To go from a motion for preliminary injunction to a Supreme Court opinion in basically 25 days, holy smokes, that is fast. That is fast. And in hindsight,

that's not what you do here. And so I think that this is something else that is completely glossed over in the media, is that there was a procedural posture to this case, which this case puts to shame the very term rocket docket. When I was litigating, we'd use the phrase rocket docket to describe a case that might run its course in six months heavily in junction practice. This is warp speed docket. I mean, and warp nine, like one of the high warps that causes the enterprise to almost fly apart. And so that creates issues. So yeah, I think that that's absolutely relevant to how all of this unfolded here. So let me ask you this, Sarah. Yeah.

So you said that your interpretation of the per curiam opinion was that if you're on the left and you're wanting to see Roe slash Casey upheld, this would make you more nervous. Do you, as Sarah, think that this is an indication that Roe v. Wade is, or Roe slash Casey, because Roe's standard is not the standard now, but Roe slash Casey is in more peril than you previously thought? You, Sarah, not putting yourself in the shoes of pro-choice activists. I think that they... Look, what we have said we think will happen, Dobbs is getting argued in November. It won't get decided until next June. You and I have predicted that we think that the Casey undue burden standard will be changed and that the June medical signal was undue burden is going to mean the word undo is going to have more emphasis than the word burden. And right now it's the word burden. Any burden is an undue burden. And that it's going to be more like, no, an undue burden. And that that will look something like, I don't know actually whether they'll uphold the 15-week

ban because I'm not sure whether they'll find it like, look, you had 15 weeks. Or they'll say like, look, there's something here, but to the extent this informs my opinion, I think they will now uphold the 15-week ban and say that it is not an undue burden because a woman has three months to seek an abortion. You obviously can still get an abortion if there's no heartbeat, if there's, you know, health safety of the mother, things like that. And that from now on, it's going to be not whether there's a burden, but whether that burden prevented your ability to reasonably seek an abortion. And so we're just going to have a new standard that's not going to be called undue burden because no one knows what that means. So what does today's thing tell me? That they know they're going to be

potentially tinkering with that. And so because six weeks and 15 weeks are the same type of limitation, they don't want to talk about it at all because Dobbs is getting argued in November. I think that's what this is actually about. But I will say that to the extent it was a coin flip of whether 15 weeks was going to be upheld or not, I now think that they're going to uphold the 15 week ban. In part because they're not saying anything here. Okay. I have questions for you because listeners, if you, if you're with us this far, you're ready for the nerdery, the real legal nerdery. We haven't done that yet. No, no. If you thought Keith Tam and ex parte young was nerd, just turn it off. The nerdery starts here. Okay. But I, but I want to respond to that right before you ask the question. Your, your, your prediction. Respond to that first. Respond to it first. Yeah.

Yeah. Yeah. So I agree with you that the 15 week ban will be upheld. Like I thought that from day one that, that there's no way they took this case with the intention of striking down that 15-week ban. To me, that's a foregone conclusion. The interesting thing to me, so a lot of court forecasting is it's some combination of objective knowledge of judicial philosophies and some combination of reading chicken entrails. And so there's a part of this that on the one hand, the fact that the court was, we're not deciding the constitutionality of a six-week ban, ticked to that instinct side that said, huh, is Roe Casey in more danger than, you danger than maybe a lot of people thought? Is this, huh? It sort of picked up my antenna, which I have sort of squelched my overturned Rowe-Casey

antenna because they've been disappointed for so many years. But my disappointed overturned Rowe-Casey antenna popped up and peeked out a little bit and said, wait a minute, is this possible? But then there was another part of the chicken and trails that said no. And that other part was that Robert seemed to like go out of his way to basically say, nope, nope, nope, nope. This is unconstitutional. And it's so hard for me to believe this is just all, you know, enlistors, this is nothing but instinct talking, nothing, that's all this is. It's hard for me to believe the court would overturn row 5-4. That's where I keep getting stuck in the instinct side of it. Not so much on the objective side of what are these justices, what are their judicial philosophies, et cetera.

That, I can make a case for 5-4 overturning of Roe. I can make the case for that. My instinct side says, ooh, do you do that? I don't know. Do you do that, really? So that's where I am on that question. Okay. Because David keeps saying overturning Roe, I just want to define these terms because people out there are using them really incorrectly. And I want to have an AO definition of overturning Roe

and overturning Casey. Overturning Casey means changing the undue burden standard, saying it's no longer a standard about what is an undue burden, but it's something entirely different, like reasonable opportunity to obtain an abortion. Different would be if they say, ah, no, we are defining undue burden as the reasonable opportunity to obtain an abortion. That wouldn't be overturning Casey. That would simply be redefining Casey. I know that's a technical distinction, but a real one to me. Overturning Roe would be the constitutional right to have an abortion itself,

not the test of whether you can ever have one, as in purely going back to rational basis. It's now totally up to the states. No court involvement unless it's like you can't have an abortion unless you were impregnated by an alien. Ah, that doesn't pass rational basis review. Fair enough.

So overturn Roe means no constitutional right. Overturning Casey means a total change in the standard that might be a lot more restrictive, but it's still a constitutional right. But Davidurning Casey means a total change in the standard that might be a lot more restrictive, but it's still a constitutional right. But David, here's the issue. Let's say they uphold the 15-week ban. And again, I actually don't care anymore about Roe and Casey. How do you create another workable test, whether it's redefining Casey, just new test, whatever, test, whether it's redefining Casey, just new test, whatever, that then can apply to 14 weeks or six weeks? What does that workable test look like? And how do you apply it to 24-hour waiting period and ultrasounds and parental consent? And it's got to apply not only to a

timely ban, but also a regulatory ban and also the surgical requirements and all these other laws that conservatives have tried to stop abortion. I put them into three buckets, the regulations on abortion providers, the regulations on the patients and the timeliness. You've got to come up with a test that does all of that. Good luck to you, sir. You've got to come up with a test that does all of that. Good luck to you, sir. Yes. So that's why, okay, I'm going to go back to my little overturn row antenna. Okay.

So that's why I'm getting this little ping, this tiny little ping from deep outer space that the overturned could actually happen in part because there are so many issues. If you just say we're upholding the 15-week ban and here's a new test, what you've created is a new litigation industry around abortion and all of the hundreds and hundreds and hundreds of abortion laws in the United States. And you've created a legislative drafting industry. So you've, you've essentially, you know, because the undue burden standard was never all that clear. And we, you know, you knew something like the 15-week ban couldn't survive it, but it was still, there were still hundreds of pro-life laws that were drafted after Casey.

So you do the 15-week ban and you uphold the 15-week ban and you adjust undue burden. You've just recreated a whole nother industry of litigation and legislation. a whole nother industry of litigation and legislation. And do they want to do that? So that's where, you know, there's, that's where the, a desire for a clean judicial resolution, which is overturning Roe, restoring rational basis review, returning it to the states for the states to decide, has a simplicity to it that other resolutions do not have. And so that's why that antenna is starting to ping a little bit tentatively that this, to the extent that we can read anything into this at all in a statement that says we're not opining on the constitutionality.

So this is where we're kind of grasping at stuff. It indicates to me that, yeah, some of the folks who are on the pro-choice side who are taking something away from this substantively about Roe, you know, it's probably pinging their antenna too. And if it's pinging their antenna and it's pinging my antenna and I'm pro-life and they're pro-choice, maybe there's something to the ping. And that's all just,

that's all worthless. Everything I just said. Okay. So we had got, uh, as I said, it was a per curiam opinion from the five that's Alito, Thomas, Kavanaugh, Barrett, Gorsuch. And then we got, and it's like short, it's real short. It doesn't say much, but then we got an individual descent from all of the four. The Roberts one we read to you, the Breyer one is very Breyer. You can hear his voice as he calmly explains himself. The Sotomayor one is the exact opposite of the Breyer one. And then you have Kagan, opposite of the Breyer one. And then you have Kagan. Very short, two paragraphs. Today's ruling illustrates just how far the court's, quote, shadow docket decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals. It has reviewed only the most cursory party submissions and then only hastily. It

barely bothers to explain its conclusion. In all these ways, the majority's decision is emblematic of too much of this court's shadow docket decision-making, which every day becomes more unreasoned, inconsistent, and impossible to defend. All right, David, we have a straight shot at the heart of the shadow docket from Kagan. Breyer, by the way, in an interview he gave last week, also took a shot at the shadow docket, said he didn't like it. Shadow docket for those who are not hardcore AO listeners and didn't listen to our interview with Will Bode several months back. By the way, Will Bode, the one who coined the term shadow docket, how pumped is he that it's like in a Supreme Court decision? It's official. Pretty cool for him. Congrats, Will, creating a term and then it's like making it all the way to the top.

Started from the bottom. Now we're here. So uh keep going what's the rest of that song started from the bottom now the whole gang here i will leave out the f words it's one of my favorites right come on our canadian friend from the north uh okay so i get her beef with the shadow docket. Actually, I kind of don't because it's not their fault that these cases keep coming up as shadow docket cases. They have had emergency petitions at the court every week this month, the eviction case, the migrant protection protocols, and now this. So I do understand her complaining that they're not getting enough briefing. They're having to make these decisions in 72 hours. This isn't the way the court is supposed to work. They're supposed to take, you know, nine months to make decisions.

But what are, what's her solution? Yeah, that's the really good question because, you know, essentially if the solution is okay, when we get these emergency injunction motion requests, we're going to put them on the regular docket. And then we're going to brief them for four months and we're going to argue it. And then four months later, we're going to render a decision. And a lot of these things involve rights that are hanging in the balance right stinking now. Like how would it look any different if it had been put on the regular docket, the law would have gone into effect. I'm very confused. Yeah, exactly. Then you would have had the Fifth Circuit with much more power. You know,

essentially what you're doing is you're devolving power back to the circuit courts of appeal, which is a defensible, that's a defensible proposition, absolutely a defensible proposition. However, you know, that would then, that would then render the possibility of, on major national issues, competing circuit court opinions that adjust rights, fundamental constitutional rights, dramatically differently based on where you live, which is kind of not the purpose of the Bill of Rights, for example. So yeah, part of it is we have a much more contentious society where we are trying to resolve an increasing number of fundamental questions in the courts where the rules of civil procedure

grant you the right of an immediate appeal from a denied injunction and voila uh here we are um so it's it you know the shadow docket i totally understand the critique against saying uh wait we just decided something consequential where the state of Texas right now is kind of in a little bit of disarray about this fundamental constitutional question, and we did it based on rejecting a motion for preliminary injunction that was first filed 25 days ago. I get that, but what's the alternative? And I don't think her preferred answer would necessarily be granting the Fifth Circuit a lot more authority over these issues. So the Fifth Circuit is my home court. I am loathe to criticize my court. I don't like this. I will just say that. I don't

like the way that this came up. I don't think anyone does. And I think you see that in all of the Supreme Court opinions that were issued. Nobody is very pleased with the Fifth Circuit today and the position that they put the court in. It's weird. Okay, my next question to you, David, on the nerdery. Okay. My next question to you, David, on the nerdery. Okay. So Jonah sues you in state court because this is a state action. Are you going to be able to remove it to federal court? And if not, like, how are we, how is this actually going to work? And this is the real nerd sum guys. This is it. Because we're going to work out here. It's not like you get to wave a wand to get back to the Fifth Circuit or the district

court or the Supreme Court. Those are federal courts. This is going to start in the state court and go up through a state district court, a state circuit court, and then the Texas Supreme Court, which handles civil Texas lawsuits, then the U.S. Supreme Court is the appeal after the Texas Supreme Court. Unless when someone sues you in state court, you can, quote, remove it to federal court. You can remove it because there's federal jurisdiction. One federal jurisdiction would be that, like, Jonah is actually from New Mexico, but that's not going to work here. Jonah actually does have to be from Texas.

So you're not going to be able to remove it for diversity jurisdiction. You're going to remove it for federal question jurisdiction? Maybe? So this is, like, this is going to be a little messy when they do bring the correct case and it might be why it's taking them a little longer yeah it is going to be messier it's absolutely going to be messier and the other thing is if this ends up staying in state court

the state courts might not rocket docket this thing right um the The state courts in Texas may decide, oh, we're going to take our time while nobody is performing abortions. Worth noting, they are all elected. Right, right, exactly, exactly. So then, you know, but then the ex parte young issue comes up again, which has not been decided. And so you're probably going to see, you would see removal efforts, you would see ex parte young efforts, you would see a lot of fast efforts to get this into federal court, you'd see a lot of immediate efforts. And I can guarantee you that whatever sort of lackadaisical approach was taken before is now over. Like what you, that what you just saw was sort of like, um, the signal flare sent to the seal team six of, uh, abortion rights activists.

And so you're going to see, you're going to see the kitchen sink here at this point. So the ex parte young, removal, try to rocket dock at state court, I mean, you name it. So that's what's going to be very interesting to see is just from a litigation standpoint, there's going to be a lot of interesting tactical maneuvering in an effort to try to get this back to the Supreme Court as soon as possible. And that's not going to be super easy. Let's just be honest. It's not going to be super easy. And again, everyone who drafted the Texas law is right now high-fiving themselves about all of this. But this is the be careful what you wish for part of this. Once you say this is how we're going to approach constitutional rights, and right now, for right now, as much as I don't like it, you have a constitutional – a person has a constitutional right to receive an abortion. you have a constitutional, a person has a constitutional right to receive an abortion.

If this is how you're going to handle and be able to handle constitutional rights you don't like, wow, you know, talk about ramping up a little bit of, ramping up contention, ramping up a sense of injustice and grievance in this nation. Woo! Buckle up. So I just want to point out that the July 13th lawsuit that was filed has lawyers from the Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union, the ACLU Foundation of Texas, something called Lawyering Project. All in-house public interest attorneys, David. And then I see two attorneys from MOFO, Morrison and Forrester. What do you want to bet that the next time we see this lawsuit,

that ratio is flipped, that we have a whole bunch of really high-profile litigators on this and not as many public interest lawyers on the brief. Yeah. Yeah, that would not surprise me, and I did not know Morrison Forrester was mofo. You didn't know they were called mofo? Come on, David. That's their name. I'm sorry. It's been a while since I've been in the big law game. I mean. Shout out to all our mofos listening. Okay. So anything else, Sarah? Do you have any other extreme nerdery or are we or have we exhausted the the analysis?

I'm done for now. I do. I meant it when I said we have a whole I had a whole list of potpourri to get through today and we're not going to do any of it, which means we're going to have a packed podcast next week as well. I mean, jointly authored opinions, Third Amendment case that I forgot. Nod Dog makes its appearance back and the law of F1 racing, David. And that's just the potpourri. Yeah, yeah. And we haven't even, we haven't even talked about

the Donald Trump Jr. defamation case that's going forward. That is very interesting. Very interesting. David, I found out about a Brett Kavanaugh cult that exists in the country, and I got to tell you about it too. Oh, well, I'm interested in any and all cults. So, especially those centered around Supreme Court justices.

Yeah. All right. Well, okay. This has been quite a podcast. Now, you are, listeners, you are extremely well-equipped to head into the weekend cocktail party circuit where everyone's going to be offering bad hot takes about the Whole Women's Health case. And you can say, no, here's what actually happened. And then you can even borrow my phrase. And you said, I've been reading the chicken entrails on how all this is going to ultimately come out.

And here's my semi-educated guess. So you're welcome. And we cannot wait to come back and talk to you next week. Until then, please rate us on Apple Podcasts. Please subscribe. Please check out thedispatch.com and we will talk to you again soon. 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 family?

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