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November 20, 2023
Strict Scrutiny
A Code of Misconduct

In This Episode

After months of public pressure, the Supreme Court has released its newly adopted code of ethics. But it leaves a lot to be desired! Melissa, Kate, and Leah analyze the code and find all the possible loopholes. We also talk to Molly Duane, one of the plaintiffs’ lawyers in the Zurawski case out of Texas, where women suffered serious health and emotional consequences after being denied abortions. And then we welcome Ashley Coffield, CEO of Planned Parenthood of Tennessee and North Mississippi, to update us on reproductive justice in the region after abortion bans and an extremist attack on one of their clinics.

 

TRANSCRIPT

 

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Melissa Murray Hey there. Strict Scrutiny. Listeners, this is Melissa. Before we start this episode. We wanted to let you know that it will include some content that some of you may find it disturbing or traumatic. We’ll be talking about pregnancy loss, but also medical trauma that may be difficult to hear. Nonetheless, we think that airing this episode is critically important, especially in this post jobs landscape, to let you know what the risks are for pregnant people all around the United States and to bring their stories to light. But again, we wanted to give you a warning that this content may be difficult for some of you. And we wanted to let you make your own judgments about whether or not to listen. As always, we appreciate your support of the show and we thank you for listening.

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Kate Shaw.

 

Melissa Murray I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman. And the court is dark this week, so we are taking the opportunity to bring you a deep dive into some very important post ops litigation. But while we were recording that episode, some news broke. So we’re going to cover that first.

 

Melissa Murray So for some very good. Okay, it’s not really very good news, but I think it sort of falls in the vein of news that was engineered to make you think it was really good news. But in fact, it’s not really good news at all. And so with that lead up, I will just say it. The Supreme Court adopted a kind of ethics code, and again.

 

Kate Shaw They adopted a document captioned ethics code.

 

Melissa Murray Yes. An ethics-like code.

 

Leah Litman An ethics adjacent code.

 

Melissa Murray Yes. Yes. Yeah. An anti-ethics code.

 

Leah Litman A code of misconduct.

 

Melissa Murray Misconduct.

 

Leah Litman Yeah.

 

Melissa Murray Yes.

 

Leah Litman Yes.

 

Melissa Murray So we’re going to break this all down for you and we’ll start off with the good news. And then, of course, we will proceed to the bad and then, of course, the ugly.

 

Leah Litman So good news first, you know, this is a step, the fact that the court felt compelled to do this because public scrutiny is kind of a big deal. I mean, I do want to give a hats off to ProPublica, whose reporting made this happen and to the public for staying on this issue, which also helped make this happen. You know, they got the court to do something which is not nothing. And just because we will be shredding the code in a bid, I don’t want that to undermine this. Like this is a huge testament to ProPublica’s reporting and to sustained public attention. Right. It really does suggest that that kind of stuff can actually move the needle because the Supreme Court and Republicans were saying this wasn’t necessary. But the country, great ethical journalists made this happen. And that’s kind of a big deal.

 

Melissa Murray Shout out to the Senate Democrats. Yeah, we were like, we’re going to bring Harlan Crow and Leonard Leo up in here to talk to us. So we’re going to subpoena them. And suddenly things started moving. Amazing.

 

Kate Shaw Yes, Two things can be true. It can be really important that the Supreme Court was moved to do something exclusively because of this investigative journalism and public pressure and pressure from the Hill. And that matters. And it can also be true that the thing they did was laughably insufficient and deserves to be excoriated, which we will proceed to do momentarily. And so keep keep on them, I think is the lesson.

 

Melissa Murray If you go to the doctor and she’s like, you have high cholesterol and you’re like, you know what? I need to do something about my high cholesterol. I am going to go on a diet. But the diet consists of hamburgers from Shake Shack. Like that’s what this is like.

 

Kate Shaw You’ve recognized a problem like you’ve been there’s a problem that has been identified. It has been named, and you have done something. You didn’t do something that’s actually going to take it across, but you did do something right. So that, I think, is a good pivot to maybe evaluating what the court actually did in this ethics code slash anti ethics code slash code of misconduct. So let’s walk through some general thoughts on why this code is so insufficient, why it just doesn’t cut it. We’ll start with the opening, which is the prolog slash statement, the justices included, to introduce the code in that Prolog, which is one of the most defensive pieces of prose I’ve ever read. The justices say recent public concern over their conduct is merely a misunderstanding and the code is being put in place to dispel that misunderstanding. Right.

 

Melissa Murray Meanwhile, ProPublica is like we didn’t misunderstand shit. Like this was actual misconduct.

 

Kate Shaw Completely. And but certainly the message in the framing is that the justices are trying to convince the readers that the reporting and the concerns are a big nothing like the public has been misled into thinking there’s a problem. In fact, there is actually not a problem. And somehow this document is supposed to convince everyone that in fact, there is not a problem. And let’s just say it’s wildly successful in that project.

 

Melissa Murray Isn’t this a bit like someone offends you and then they apologize to you and they apologies like, I’m sorry that you were offended? Yeah. Like I’m sorry that you took hold of the wrong way. Like.

 

Leah Litman Well, yes, like that. It also called to mind the energy from the Rahimi argument where the justices were unwilling to actually admit they made a mistake in brewing. And instead, we’re just going to kind of clarify things and like what they meant in brew. And it’s just extremely strong BROTUS energy. We can do no wrong, right? You can’t criticize us and you just don’t understand if you think something is wrong.

 

Kate Shaw This doesn’t exactly suggest the court is going to be fixing the problem, since sort of from the outset they made clear they don’t think there is one. So not a very promising start. And if anything, it goes downhill from there.

 

Leah Litman Yeah. So another part of the prolog. Is that the Prolog says the new ethics rules are for the most part not new and largely represent a codification of principles the court already follows. So, you know, just to put that in plain English, like the court is saying, these rules make all or most or many of the things the justices have been doing perfectly valid and consistent with this code of misconduct like they seem to think they’re doing great and they want to write down these awesome principles that are guiding their behavior and have been guiding their behavior. Because why? I just don’t know.

 

Melissa Murray Basically, it’s a codification of misconduct. We decided to make official all the bullshit we’ve been doing.

 

Leah Litman Yeah.

 

Melissa Murray Like it’s an actual. A code of bullshit. Amazing. Another reason why this so-called ethics code is a big nothing burger is there’s no apparent enforcement mechanism here. Like, none. Zero. Like if the justices violate this, quote, unquote, code, you can do the same thing that you can do. Now, if they act unethically, which is nothing, right? You don’t do anything. You just scream into the void. Like that is the mechanism, right? Like there’s no enforcement. It is literally riddled with should do this, could do this, but no must know. Will no police officers not show up at your house and demand that you turn over the boarding school tuition? Like none of this? Like it’s just the same old, same old. Now, in addition to all of those big picture problems, there are some real granular issues here. So one thing the code seems to do is to affirmatively give the justices permission to do things that they shouldn’t be doing. Right. This is why we’re calling it a code of misconduct. One provision says that, quote, A justice may engage in extrajudicial activities, including law related pursuits and civic, charitable, educational, religious, social, financial, fiduciary and government activities, and may speak, write, lecture and teach on both law related and non legal subjects. I’m just going to call this the Fed SOC codicil. All the Fed Soc-ing is fine.

 

Leah Litman And there are more. More of those provisions kind of sprinkled throughout the code.

 

Kate Shaw The most concrete part, this is one example. We’ll talk about others, but the most concrete parts of this document are ones that don’t disallow but affirmatively sanction certain kinds of conduct. So where there may have been some ambiguity previously, justices did attend Fed Soc and other events, and some people thought they shouldn’t. And obviously the justices concluded otherwise. But there was, I think, at least a degree of ambiguity. This purports to totally put that to rest and says it is fine, it is great. You go to all those dinners and the parts that suggest actually ratcheting up ethics guidelines are, you know, hortatory and vague in general and the parts that actually allow activity that actually is pretty suspect in certain circumstances are much more concrete. So it feels like that might get a little backward.

 

Leah Litman Yeah. And just to give one example of that, it says, quote, A justice may attend a fundraising event of law related or other nonprofit organizations. Yikes.

 

Melissa Murray Amazing. The Koch brothers codicil amazing.

 

Leah Litman Amazing, right? Read The Federalist Society is a law related nonprofit organizations and the Koch brothers have 501C3. Right. Nonprofit organizations.

 

Melissa Murray There is, I think, a little bit of a boundary here. So they can’t be the headliner for a fundraising event, but they can participate if they are sort of billed with the same billing as other participants. So it’s basically fine to have a justice. You just can’t just have a justice. So you’ve got to like sprinkle other people around them.

 

Leah Litman Yeah. So the provision I think that you’re referring to is the one that says, quote, A justice should not knowingly be a speaker, a guest of honor or featured on the program of such event. And then it defines a fundraising event as something where the proceeds from the event exceed its costs or if donations are solicited. But again, there are just real questions what this means, like does it permit a keynote address at the Federalist Society or at one of these like 501C3 other organization, things like could it if that event doesn’t solicit donations or if the event is structured to like break even? Or what if, you know, they told the justice, we’re giving you an award. The Robert Bork Roger Taney Freedom Medal, right. And it’s not a keynote. And the justice didn’t like knowingly go in being a speaker like there are some aspects of the code that suggest it might allow this, like the fact that the court says this is a codification of existing principles. And the Republican justice keynote that FedSoc gala every single year. I mean, we just don’t know. And they’re going to be the ones that are deciding this and they might not ever explain, like why they’ve concluded their conduct is consistent with whatever this is.

 

Melissa Murray And it totally rewards them for just being oblivious. Yes. To to not find out anything.

 

Leah Litman Don’t know.

 

Kate Shaw Don’t knowingly does a lot of work here. Yeah and that seems quite deliberate. It’s also not clear how that provision you were just talking about, Leah, intersects with a part of the code that seems to like. Create a caveat to the prohibition, if there even is a prohibition. So there’s a part that says, except in unusual circumstances, no such appearance, meaning of partiality will be created when a justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a nonpartisan, scholarly or cultural group. Okay. So actually, it’s fine to talk to those groups. And nonpartisan, scholarly group is 100% how FedSoc describes itself. So maybe that part of the code says it’s all fine anyway.

 

Melissa Murray Again, we haven’t even scratched the surface because there are other ways in which some of these alleged prohibitions in the code are worded in a way that actually seems to license an awful lot of misconduct. So, for example, one provision says, quote, A justice should not knowingly make public comment on the merits of a matter pending or impending in any court. The prohibition on public comment on the merits of a matter does not extend to public statements made in the course of the justices official duties for scholarly, informational or educational purposes. A justice may describe the issues in a pending or impending case, end quote, so they can continue to do closed door Fed Soc Koch brothers network talks.

 

Leah Litman Or like the informational aspect of it, Like, does that mean Sam Alito can talk to David Rivkin because like, he’s doing his informational slash journalism or it’s just and he’s.

 

Kate Shaw Just sharing the facts of the case. And it’s but it’s like it feels again, like this is actually granting affirmative permission to do things that even under existing practice, prior to the promulgation of this code, they were not you know, some were Alito was, but the rest of them weren’t. And maybe this is like an invitation for them to do more of that. Feels like it.

 

Melissa Murray There’s another one. So this provision says, quote, Otherwise, it just says should not personally participate in fundraising activities, solicit funds for any organization or use or knowingly permit the use of the prestige of judicial office for that purpose. And quote, seems like a good prohibition. Don’t use the prestige of your office for fundraising, but then they put the knowingly on it. So what if you don’t know that the prestige is being used? So like when Justice Thomas opens up the Supreme Court to the Horatio Alger Association or society, whatever it is, for donor events, is that knowingly permitting the court’s prestige to be used for fundraising or his office to be used for fundraising? Can Ginni Thomas do something? I mean, like the stuff on spouses and partners and family members is super vague. So again, this all seems to be like be as oblivious as possible, ostracize yourself as much as possible and it’ll all be fine.

 

Leah Litman Yeah. And there are other concerning walk backs and caveats in the code like this one that says, quote, The rule of necessity may override the rule of disqualification. So what that means is, like if they need justice or justices to participate, that’s more important than disqualification. So like if all of the Fed Soc bros and Amy or at Harlan Crow’s parties or the Fed Soc gala, then it’s fine because they’ve all violated the rules.

 

Kate Shaw And they need to get a quorum in Soma. And so like no harm, no foul, everybody can just sit, right? Okay. So that’s the stuff the code affirmatively permits. The code also has some very narrow prohibitions on what the justices can’t do that we know some justices are going to read in the narrowest possible fashion. So, for example, there is this quote, A justice should disqualify himself or herself in a proceeding in which the justices impartiality might reasonably be questioned. That is where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties. The only reasonable person who is aware of all relevant circumstances is the most audacious burden shifting that I’ve ever seen in this kind of go. It is insane.

 

Leah Litman Well, I mean, like, would the justice say, like all relevant circumstances includes the fact that the justices think they’re being principled or that the justices would describe themselves as being driven by principles? It’s just insane. And just to offer some evidence of how the justices have applied the standard that is all of the things they’ve said wouldn’t lead a reasonable person to question their impartiality. We know Sam Alito doesn’t think his hours long interview with David Rivkin, the lawyer in the tax clause challenge, and Wall Street journalist, you know, he doesn’t think that raise questions about his impartiality. We know he doesn’t think his trip with Paul Singer raised questions. We know Thomas doesn’t think his relationship with Crow raises questions. We know Leonard. Leo also thinks none of this reporting has raised questions about the justices partiality. So it doesn’t seem great. It’s like this is a no ethics, just vibes code, which makes some sense in that, you know, ethics derive from ethos, which is like kind of a vibe. And it’s just.

 

Melissa Murray It’s definitely ancient Greek for vibe,.

 

Leah Litman Right? Yeah, for sure.

 

Melissa Murray Hundred percent. It’s also worth noting that the standard that the court has now imposed upon itself and imposes a very strong word. It’s actually less demanding than the standard that exists for lower court judges. And that was always the case. But now they’ve actually codified as such. So I guess that’s great. It’s explicit, but the code for U.S. judges prescribes that quote When reasonable minds with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, blah, blah, blah. In that situation, the judge must recuse. And the Scotus code says, quote, Where an unbiased and reasonable person who is aware of all relevant circumstances, blah blah, blah, the justice shall recuse. So again, it’s much more rigorous for lower court judges. And again, like we want to acknowledge like it is different. They are a nine member court and there’s not a deep bench to pull people from. And we get that. But you’re basically making it okay to hold yourself to a lesser standard while promoting this as some kind of huge reform.

 

Leah Litman Yeah, and the code is less demanding than the one applicable to lower court judges in other ways as well, including the provisions governing outside influence. So on outside influence, the Supreme Court’s code slash whatever this is, five five says a justice should not allow family, social, political, financial or other relationships to influence official conduct. Your judgment and a justice should neither knowingly lend the prestige of judicial office to advance the private interests of the justice or others, nor knowingly convey or permit others to convey the impression that they are in a special position to enforce a justice that’s less demanding than the standard for lower courts. The Scotus code requires it to be. Knowing the standard applicable to lower courts does not. And again, we know how these guys and Amy have applied the standard. They don’t think their relationships with people like Leonard, Leo, Harlan Crow and whatnot influence their official conduct. They think that’s all just driven by their neutral principles of interpretation. It’s a very, very, very vibes based ethics code with no boundaries.

 

Melissa Murray Speaking of the whole question of outside influence, I mean, I think this runs into different directions here, Leah. So I want to call out this provision that says, quote, A justice should not be swayed by partizan interests, public clamor or fear of criticism, end quote. So this is basically like we are now codifying that whole Fed SOC vibe where we like stiffen the resolve of our favorite conservative justices. Like is basically an apologia for Dobbs. Like when Justice Alito was like, you know, I will not be swayed by your hysterical, screaming ladies, like like I’m even more convinced of the rightness of my position. Basically makes it part of the ethics vibe. Yes. To feel that way.

 

Leah Litman Yeah.

 

Melissa Murray Yeah.

 

Leah Litman And that same provision also says, quote, A justice should be patient, dignified, respectful and courteous to all individuals with whom the justice deals in an official capacity. And like look.

 

Melissa Murray I feel some impeachments coming on.

 

Leah Litman Credit where credit is due read seriously. This could disqualify Sam Alito and Neil Gorsuch from participating in oral arguments or the Supreme Court period. So, you know, I guess at a minimum, it seems that the justices have prohibited themselves from challenging advocates to fights during arguments. And you think that’s meaningless? We would remind you of what happened in the Senate last week with Senator Mark Wayne Mullen challenging a witness to a fight before Senator Bernie Sanders told him to sit down and shut up. And the witness had the best response.

 

Melissa Murray Can we roll this clip? Let’s roll that.

 

Leah Litman We’re playing that in full here.

 

Clip Quit the tough guy act and these Senate hearings. You know where to find me. Any place, any time, cowboy. So this is a time this is a place you want to run your mouth. We can be two consenting adults. We can finish it here. Okay, that’s fine. Perfect. You want to do it now? I’d love to do it right now. Well, stand your butt up, then You stand your butt up. On a Oh, hold on. Stop it. Is that you solution to every problem. Oh, no. Sit down. You’re a Clinton, okay? You know, you’re a United States senator, so I’ll go sit down, please. All right. Can I respond to that? Hold it. Hold it.

 

Melissa Murray I’ve been listening to this on a loop, and just laughing all day.

 

Leah Litman And it’s apparently no longer allowed at the Supreme Court.

 

Melissa Murray That might be good.

 

Leah Litman Right?

 

Melissa Murray But is dueling allowed? Dueling might be part of the vibe for sure.

 

Kate Shaw I don’t know that it’s I don’t know that it’s expressly prohibited in this code. So probably fine.

 

Melissa Murray You can’t knowingly engage in a duel. If you suddenly find yourself.

 

Leah Litman Those accidental duels. Beyond the scope of the code.

 

Kate Shaw If you stumble upon one. Absolutely. There is an addendum to the code that says neither the filing of a brief amicus curiae nor the participation of counsel for amicus curiae requires a justice’s disqualification. That’s fine in a way. Actually, this is one of the only provisions that I had some sympathy for because they don’t want to incentivize people filing amicus briefs in order to specifically oust individual justices. Obviously, that could be really dangerous in terms of recusals. It provides a lower standard than the statute governing recusals contains. So the code says a justice should disqualify himself or herself in a proceeding in which the justices impartiality might reasonably be questioned. The statute says a justice shall recuse. You know, I’m no tax. But even I can see that those two are not the same standard. Those words are different and they mean different things. And the statute is mandatory. And the code contains a suggestion.

 

Leah Litman Laws are optional.

 

Kate Shaw No enforcement.

 

Leah Litman Right? No laws, just ethics vibes.

 

Kate Shaw Yeah.

 

Leah Litman I mean, like these guys, we don’t know how this thing is going to work or who would enforce it. It did call to mind this scene from Parks and Rec, where Ron Swanson says, like, not to worry, I have a permit. And then he shows the person a piece of paper that says, I do what I want. Ron um. No, it’s yeah,.

 

Kate Shaw That was their inspiration, clearly.

 

Melissa Murray Yeah.

 

Kate Shaw So big takeaways. This is a wildly disappointing document and yet it really is important proof positive that the pressure matters. The attention matters, and we all have to keep it up. Is that the big takeaway?

 

Melissa Murray I think that’s a huge takeaway. I think there’s a takeaway for Congress like keep going. This is like basically you came home from school with a 50% on a test where you were scored out of 100, like there are 50 more points you could get. So keep going. Yeah, there’s more for Congress to do. There’s more for the public to do. Like this is not an invitation to put the whole ethics question to bed. Like all done. We handled it. It’s handled. This is not an Olivia Pope moment. No, it’s not been handled. Let’s take a quick break. When we come back, we will be talking to one of the lawyers in the Zurawski case out of Texas. So please don’t go away. But again, reminder, some of this content may be very sensitive to certain listeners. So make your own judgments about how you proceed. Thank you.

 

Leah Litman [AD]

 

Melissa Murray It’s been a year and a half since the court decided Dobbs versus Jackson Women’s Health Organization, which overturn Roe versus Wade and withdrew a right that American women had enjoyed for nearly a half century.

 

Leah Litman Dobbs was and is a travesty of a decision, and the long, hard work of responding to it will be a project that consumes many years of our national life. And despite some bright spots like the Ohio Ballot initiative that recently enshrined abortion protections in that state’s constitution. The situation on the ground remains horrifying in many places to states where that is especially true are Texas and Tennessee. And we’re very fortunate to be joined today by two people who are doing some of the most important work on the ground, challenging state abortion restrictions on various theories, which we’re going to talk about today.

 

Kate Shaw For our first guest, we are delighted to be joined by Molly Duane. Molly is a senior staff attorney at the Center for Reproductive Rights, where she has been litigating cases since 2015, including the challenge to SB eight, the Texas Bounty Hunter law that in many ways really laid the groundwork for Dobbs. She was lead trial counsel in zero six versus Texas, a challenge to Texas’s implementation of the medical exception to its abortion ban. Molly will also be arguing that case before the Texas Supreme Court at the end of this month. Molly, welcome to Strict Scrutiny. We’re so happy to have you with us.

 

Molly Duane Thanks for having me.

 

Melissa Murray And later in this episode, we’re going to be joined by Ashley Coffield. Ashley is the CEO of Planned Parenthood of Tennessee and northern Mississippi, and she’s going to get us up to speed on everything that’s been happening in that region, which has really been starved for abortion access since. Dobbs. So let’s start off with Molly and the great state of Texas or well, the kind of okay. State of Texas. So, Molly, we’ve highlighted Amanda Zurawski on the show a number of times, and she’s one of the plaintiffs in the lawsuit that you’ve brought against Texas regarding the actual operation of their medical exception to the abortion ban. Can you talk us through in very general terms the nature of the challenge that you all are bringing against the state?

 

Molly Duane Sure, Melissa. And I’ll just note that Amanda’s husband is a huge, Strict Scrutiny fan. So this is going to be very exciting.

 

Melissa Murray All the best men are, just going to say.

 

Molly Duane All the best men are. My husband was also very excited, but not as excited as Josh. So let me talk a little bit about the case. And it really starts, as you said, with SB8, because since September of 2021, when SB8 went into effect, physicians and other medical professionals throughout the state of Texas have been grappling with who, if anyone, in Texas should still be getting abortions under the state’s only exception, which is for medical reasons. So politicians are always touting these exceptions as don’t worry about it, people are still getting abortions. But how do those exceptions actually work in practice and do they work in practice? Well, spoiler alert, they do not. So what is the exception? Say? We always have to start with the text. Right. And the exception says that people can still get abortions if they have a life threatening condition that poses a risk of, quote, death. Okay. Sure. Or poses a serious risk of substantial impairment of a major bodily function. So the problem is no one knows what that means. What makes a risk serious? What’s the difference between a substantial and insubstantial risk? What about a major bodily function versus a minor bodily function? And I think most importantly, what physicians really don’t understand is how close to death does a patient need to be. And when you’re talking about penalties of really the most extreme lifetime in prison, loss of their licensure, and if you combine SB eight and the trigger ban, we’re talking about hundreds of thousands of dollars in civil fines. Physicians are obviously unwilling to take some risks here. So in Amanda’s case, as as you all have talked about on the podcast, she was diagnosed with. It’s called an incompetent cervix, which, I mean, maybe we should pause in thinking about the naming of that diagnosis. It’s a little bit cervix blaming, but I think it sort of sets up the whole issue that.

 

Leah Litman The state of Texas is okay with that. We’ll get to in a second when we get to the transcript. Blaming the cervixes. It’s definitely their fault.

 

Molly Duane Exactly. It was definitely the cervix is fault. But in any event, after she was diagnosed with this condition, her water broke prematurely at around 18 weeks. And this is something that sadly happens and around 2% of pregnancies. So it’s not wholly unusual. The condition is usually referred to as p prom. And after her water broke, that’s really when the trouble started because she was told that with complete certainty she was going to lose her daughter. But the physicians just felt they didn’t know what to do. They didn’t know if or when they could intervene. And so they told her to go home and wait until she developed signs of infection. Well, after several days, she quite suddenly developed the very serious symptoms that her doctors told her to be looking out for. She was freezing even though it was 100 degrees outside. She couldn’t tell whether 1 or 10 was higher and her husband rushed her to the emergency room and. She was indeed in sepsis. And after that, she spent about three days in the ICU. She was finally given an abortion at that point, but it took a blood transfusion, multiple surgeries to reconstruct her uterus before she was able to leave. And at this point, based on the scar tissue that developed on her uterus, one of her fallopian tubes is permanently closed. So two fallopian tubes, that’s 50% of her fertility slashed right there. Because directly because she was unable to get an abortion. So I know you often talk about Facial versus As Applied Relief on this podcast. And I want to pause on that for a moment because this is an as applied challenge and it’s just on behalf of patients like Amanda. And so what we are seeking is really quite narrow in many ways. We’re just seeking an interpretation from the court, from the state court, who’s empowered to do this, telling us what the exception actually means. And then to the extent that it doesn’t cover medical conditions like Amanda’s, we have filed an as applied constitutional challenge under the state constitutions, right to life, liberty and equality. So that’s the lawsuit in a nutshell.

 

Melissa Murray This is so interesting, Molly, and just sort of a random historical point to bring in. It’s amazing that it’s the physician sort of leading the charge to challenge these laws on vagueness grounds today because in the 1960s, it was physicians that really were at the forefront of the effort to repeal or liberalize the 19th century abortion laws that were such a point of consternation during that period and were on the books in most states. And the physicians in the 1960s were making a lot of the same arguments that you’re making on behalf of these physicians today, that the laws are too vague. They don’t really have a clear idea of what they can do, but yet the penalties are enormous. And you basically have legislators rather than physicians, making decisions about the exercise of medical judgment. And it should also be noted that the physicians in the 1960s were only moderately successful in their efforts to repeal or liberalize laws, and the reform effort ultimately stalled in large part due to the influence of the Catholic lobby in a lot of states. And it sort of stayed that way until the court intervened in 1973 to decide Roe.

 

Molly Duane Yeah, so I am we joke it at my office because I am a science person. I’ll talk about an incompetent cervix all day long. I am not a history major. Right. But I have learned a ton about history because we’re all students of history and tradition now, aren’t we? But what’s so interesting about our legal arguments in this case is that history and tradition is very much on our side because for the vast majority of history, I mean, for centuries. Right. Physicians had judgment to provide abortion care to their patients when it was medically necessary. Even under the pre row abortion ban in Texas. This was the case. In fact, we attached to our appellate brief in the Texas Supreme Court several journal articles. I’m not kidding. Several medical journals from the 1800s talking about the medical conditions that are our clients are suffering from and how physicians in the 1800s always provided those those procedures to their patients because it was medically required. As you say, there was a shift in the 50s and 60s where some of the judgments started to be taken away from physicians. But that is really an aberration. And our argument here is that the two years since SB eight are similarly an aberration. Right? If you look across the expanse of history, it has, for most of Texas history been the case that physicians were able to exercise their good faith judgment and not force their patients to get sick before they could provide medical care. So really, we’re just trying to go back to to that time in history and argue like even at the time when women were basically chattel, you couldn’t just kill them off or take their fertility willy nilly.

 

Kate Shaw So that’s a great kind of historical and high level conceptual framing of the challenge that you brought. And you talked about the facts of Amanda and her husband and their experience in Texas. You have a number of other plaintiffs, each of whom has a really distinct story about what happened to them. And in July, you went to trial with these stories and these legal arguments. And in a summer episode, listeners may remember we actually played a couple of excerpts from that trial. At the time, we didn’t have the full transcript of the trial, and we actually now do. And there is just so much in there that we want to talk to you about. Could you talk a little bit about how you would characterize the nature of the state’s arguments just broadly in defense of its law?

 

Molly Duane Well, I’m glad you read the transcript, because sitting there in the courtroom, it was hard to believe what was happening. And I just want more people to understand just how insane what happened in the courtroom was. So I suppose if I’m if you’re asking me to articulate in a few words, mostly cruel, but also just incomprehensible, it is really difficult to understand what they’re arguing here. As I said, they’ve never provided their own interpretation of the law. They just keep saying that the law is clear. I mean, it’s a completely circular argument. And at the same time as as I think you’ve covered on your show, Texas has challenged federal guidance. The guidance says that emergency rooms must provide stabilizing care to pregnant people, even if that includes abortion. And the state of Texas has challenged that, saying that emergency rooms can’t be walk in abortion clinics. Well, that’s a fun rhetorical point for them, but pretty clearly it is causing physicians to be scared to rely on EMTALA or any other law to provide medically necessary care. But I think most staggeringly their main argument is that we don’t have standing. So let’s break that down. We have OB GYNs in the case who have had to turn away patients because they weren’t sick enough. We have patients like Amanda who suffered pretty catastrophic harm under the law and their future fertility is impacted now because of what they went through. We have plaintiffs in the case who are currently pregnant. One of the plaintiffs who testified during the temporary injunction hearing was currently pregnant while she was on the stand. And the state is saying none of those people have standing. So, I mean, you compare this to the Mr. Preston case and you’ve got a esthetic injury is is totally cognizable for standing purposes. But a currently pregnant person who’s afraid to be pregnant because of what she went through in a prior pregnancy doesn’t have standing. It’s pretty confounding to me. And as I said in the hearing and I’ll say again to the Texas Supreme Court, it appears that what the state is saying is that only a woman who has blood or amniotic fluid dripping down her leg would have standing to challenge these laws. And neither Article three nor the Texas jurisprudence has ever required so much for standing.

 

Melissa Murray It’s interesting that they’re requiring so much of you all to show standing and show an actual injury. And I’m just reminded of the Fifth Circuit’s ruling on standing in the mifepristone case, which suggested that those physicians, the Hippocratic Alliance for Medicine, need only show that they had an interest and esthetic interest in seeing babies born, and that was enough to support standing. I mean, do you want to comment on just sort of what appears to be very different standing doctrines depending on whether you’re supporting abortion rights or against them?

 

Molly Duane Yes, I mean, obviously, that case was in my mind the whole time we were hearing these arguments. I mean, okay, one is in the Texas Supreme Court, one is in the Fifth Circuit. Like, technically, there are different regimes. But actually, Texas does follow Article three. And the idea that we could be held to such an insane standard when those who oppose abortion are not is it should be shocking. But it actually isn’t. Because as someone who’s been litigating and reproductive rights for about a decade, this is something that I’m very well used to. We will always be held to a higher standard. I mean, you want to talk about abortion, exceptionalism. That’s what’s exceptional is is what we’re constantly forced to.

 

Kate Shaw Let’s underscore a little bit what how exactly this insistence on the Texas attorney’s part that basically nothing that happened to these plaintiffs was traceable to any conduct on the part of any Texas state official, and there was no sufficiently certain possibility of recurrence that standing should be found. So it almost sounds too outlandish to be believed that that really is if you read the transcript, what is being argued. So maybe let’s start by listening to this excerpt from the transcript. And as mentioned, you know, we have a copy of the written transcript, but not the actual audio recordings from the trial. So our producer, Melody, has asked a couple of folks from Crooked to help us out by reading those excerpts from the transcripts that we’re going to play the first one here. Similarly, plaintiffs will not and cannot provide any evidence of any medical provider in the state of Texas being prosecuted or otherwise penalized for performance of an abortion using the emergency medical exception. Their alleged fear of persecution is baseless. No medical exception adopted by this court will redress plaintiff’s injuries, either alleged past or hypothetical future. The doctors who knows? Who knows why the doctors have been deterred in their willingness to supply medically necessary and urgent care. Not nothing to do with this law. So that was that was an argument made repeatedly by the Texas lawyers. And it wasn’t just made in, you know, opening closing type statements. It was made in what really felt to us like a pretty sadistic way in the context of the examination of some of the witnesses you put on Molly. So maybe let’s play an example of one of those exchanges here.

 

Trial Transcript Reading Mrs. Zurawski, at any time did Attorney General Paxton tell you you couldn’t receive an abortion?

 

Trial Transcript Reading I never spoke to Attorney General Ken Paxton directly. No.

 

Trial Transcript Reading Okay. Did anyone in their capacity as a representative of the state of Texas directly tell you you could not have an abortion?

 

Trial Transcript Reading I didn’t speak to any representatives from the state of Texas. No.

 

Trial Transcript Reading Okay. At any time did Executive Director Carleton tell you that you can receive an abortion? No.

 

Trial Transcript Reading Did anyone at the Texas Medical Board tell you that you can receive an abortion?

 

Trial Transcript Reading No.

 

Trial Transcript Reading Miss Brandt, at any time, did Attorney General Paxton tell you that you couldn’t receive a selective fetal reduction?

 

Trial Transcript Reading Not directly, no.

 

Trial Transcript Reading Did anyone in their capacity as a representative of the state of Texas tell you that you couldn’t receive a selective fetal reduction?

 

Trial Transcript Reading No.

 

Trial Transcript Reading Did Executive Director Brent Carlton tell you?

 

Trial Transcript Reading No.

 

Trial Transcript Reading Did anyone at the Texas Medical Board tell you?

 

Trial Transcript Reading No.

 

Trial Transcript Reading So who was it exactly that told you you could not receive a selective fetal reduction in the state of Texas?

 

Trial Transcript Reading My maternal fetal medicine doctor in state and every doctor that I spoke to, or a nurse or a facility out of state.

 

Trial Transcript Reading Why were out-of-state medical providers providing you guidance on Texas law?

 

Melissa Murray I mean, this is absolute gaslighting. Like, did Ken Paxton personally call you and tell you you could not have an abortion because otherwise you don’t have an injury here? I mean, like Ken Paxton was trying to not get impeached for much of last year. Like, he wasn’t calling anybody, but this law still existed and everyone understood how it impacted or at least shadowed the provision of medical care or the effort to obtain abortion care.

 

Molly Duane It was actually worse than that because in person, my experience of it was worse than that, because they started every examination objecting to the relevance of each plaintiff’s testimony.

 

Kate Shaw So maybe let’s play an example again, not the actual audio from the trial, but a reading of the transcript. That’s an example of one of those exchanges here.

 

Trial Transcript Reading Your Honor, at this point, the defendants are going to object to all of this information about past medical issues based on relevance.

 

Trial Transcript Reading Your Honor, I think that plaintiff’s experience living under the Texas abortion law and being denied care under the abortion law could not be more relevant to the issues involved in this case. Plaintiffs will be presenting testimony from various patients who will tell similar stories, and all of them will explain personally that what happened to them was a result of the Texas abortion laws. And so I truly don’t know why we’re here doing this if the state doesn’t think those issues are relevant.

 

Trial Transcript Reading The objection is overruled.

 

Kate Shaw So that’s at the during the opening? I think. So they basically reraise this objection at the beginning of every witness’s testimony. None of this is relevant.

 

Molly Duane Yes. Every single time they insisted upon reasserting this objection before every patient plaintiff testified. And by the time we got to Dr. Dennard, who was both an ObGyn herself and someone who had to travel out of state for a medically indicated abortion and who happened to be currently pregnant while she was on the stand. By the time we got to her, she and she was asked, did Attorney General Paxton personally tell you you couldn’t have an abortion? Her response was, I don’t even think he knew I was pregnant. And what proceeded from there. Was we.

 

Melissa Murray Iconic

 

Molly Duane It was it was pretty iconic. I have to say, we were very proud of her. But what happened from there is that the state’s attorney then tried to badger her into answering and to force the judge to give a yes or no answer, which the judge declined to do.

 

Melissa Murray I’m so reminded of that Robert cover article, Violence and the Word and Nomos like this is one of these articles, sort of a classic of jurisprudence. And it’s basically this idea that legal process itself can be a form of violence. And like, this is so clear here that just the way these litigants were treated was as bad as the injury they actually suffered at the hands of the law. Like the process itself is part of the punishment, the dehumanizing aspect of it constantly being gaslighted and being made to feel like the injury that you suffered, whether it was a pregnancy loss or, you know, having to wait to bleed out before you could get the care you needed. It’s just not that big a deal. And did someone actually tell you you can get an abortion? Well, no. Then get out of court.

 

Molly Duane Yeah. I mean, when Amanda got off the stand, she said, I think to a reporter, that she almost lost her life being denied an abortion. And this experience of testifying wasn’t that much less traumatic.

 

Kate Shaw Jesus

 

Leah Litman So this had real echoes of the state suggesting that the private bounty hunter law, like that law, you know, the law governing medical exceptions is not directly enforced by the state. And so nothing that happens under that law is attributable to the state at all. You know, as Kris Jenner said on Keeping Up with the Kardashians, you know, this is a case for the FBI. Like why could these people not get abortions and medically needed abortions? Who is to say? But the arguments come up differently here. It’s not about whether the court has jurisdiction, but whether the injury to these plaintiffs was caused by or traceable to anything the state has done. But is that kind of a through line in these cases?

 

Molly Duane Well, I didn’t I’m not familiar with the Kardashian reference, so you may have to unpack that for me later. But yeah, I think it definitely is. I mean, as a abortion litigator, as you know, I’ve done so many, maybe 6 or 7 cases in Texas. And this is the case that they have been asking us to file right. In every lawsuit they file. And they say you can’t file pre enforcement. You have to wait until the law goes into effect. We don’t really know what’s going to happen. Let’s wait and see then. You can’t seek facial relief. You have to seek as applied relief in some circumstances. The law’s totally okay. So just bring in as applied challenge. Oh, and don’t have doctors, Sue. Really. You should be able to come here with patients. So here we are in state court with patients as plaintiffs filing an as applied challenge. And still they’re saying, nope, it’s not good enough. We’re not responsible. You don’t have standing and sovereign immunity, blah, blah, blah. And frankly, it’s it’s offensive. But but it also just isn’t right. As a matter of law, in none of the prior lawsuits involving SB8 was the state of Texas. As an entity sued in state court, which is what we’ve done here in a very, as I said, narrow as applied challenge. Anyone who is a claimant in an SB8 lawsuit is necessarily exercising state power under SB8. And so an injunction would apply to them and yet still it’s not enough.

 

Leah Litman So, you know, as Molly, your framing the incompetent cervix argument kind of teed up, it seemed like at various points Texas was extremely keen to blame everyone except for the state of Texas for what is happening. And in their zeal to do that, it felt like the Texas office was sometimes blaming the plaintiffs themselves. So Texas was very keen to tell the plaintiffs that they were maybe too old when they got pregnant and therefore brought the risks on themselves.

 

Trial Transcript Reading Were you ever told that your pregnancy was considered geriatric?

 

Trial Transcript Reading No.

 

Trial Transcript Reading Okay. Were you ever told that your pregnancy was categorized as high risk?

 

Trial Transcript Reading No.

 

Trial Transcript Reading Okay.

 

Trial Transcript Reading Was it ever recommended to you to attend weekly ultrasounds and or appointments with a maternal fetal medicine specialist because of your age?

 

Trial Transcript Reading No.

 

Leah Litman And this was, in fact, a recurring theme. So when the Texas lawyer was cross-examining Dr. Dennard, she again brought up this concept of, well, you know, did you have a geriatric pregnancy that therefore, like brought this on yourself?

 

Trial Transcript Reading Would a pregnancy of a 37 year old female be considered geriatric?

 

Trial Transcript Reading Well, that’s a nice word.

 

Trial Transcript Reading I apologize, I.

 

Trial Transcript Reading Geriatric is not a medical term.

 

Molly Duane I’m not really sure what to say. I mean, we we were shocked. I don’t know what I expected on cross-examination, but it certainly wasn’t what I saw in front of me. And it happened once, Right? Amanda was the first person we put on the stand and we sort of looked at each other and thought that didn’t go well for them. Surely they’re not going to repeat that with every single plaintiff. And then they did. And I’ll just say that none of this appears in the appellate briefing, which says to me that it was just straight up harassment. That was the purpose.

 

Kate Shaw There was no legal argument. They were trying to construct her through these lines of questioning. Wow.

 

Molly Duane Not that I could see, anyway.

 

Kate Shaw Pure sadism. Yeah, it does read like that in the transcript.

 

Melissa Murray There is a kind of social argument being made that, you know, if you really want to have a successful pregnancy, you should be younger. Like that’s when women should be having children, not prosecuting careers.

 

Leah Litman Don’t go to college, don’t have jobs.

 

Melissa Murray Yeah.

 

Leah Litman Right, like have children, and everthing will be fine.

 

Melissa Murray Motherhood is a vibe you get on Earth. And if you have a geriatric pregnancy, if you’re 30, 35, having a baby, that’s that’s on you. And, you know, Texas is going to Texas. In the general vein of ridiculous statements and vomit as conduct. It’s worth recalling for our listeners that during her testimony, one of your litigants actually became physically ill and vomited on the stand. What impact did that have in the courtroom and what did she have to say about her experience in Texas and how the state’s treatment of her both before and after this lawsuit has impacted her?

 

Molly Duane Yeah, I’m glad that you asked me that question because it it gives me some pain to see how sensationalized that one moment in the hearing was. I will say, without waiving attorney client privilege in any way, that that this is something she and I had talked about at great length essentially for your listeners benefit. The plaintiff who this happened to. Her name is Samantha Cassiano and she has several children already, was excited to learn that she was pregnant again. Her and her family were hoping for a girl and at the same appointment that she learned she was having a girl. She also learned that her daughter was never going to survive the pregnancy or much farther beyond it. So her her baby had a fetal fetal diagnosis known as an encephalitis, where the head does not really develop above the neck. And she was scared to leave the state. She did not have the money to leave the state. And she actually reached out to us after the lawsuit was filed when she was still currently pregnant, saying this is happening to me right now. So what ended up happening is that she was forced to carry that pregnancy to term and just the process of going through that pregnancy, the delivery. And then what happened afterwards was so traumatic that during her pregnancy she developed not only depression and post-traumatic stress, but a physical reaction to the trauma that she was experiencing that resulted in her vomiting pretty continuously. So, you know, as she was testifying about the four short hours of her daughter’s life and she testified regarding how traumatic it was to watch her daughter gasped for air and her eyes bleed as she she lost her life. And so talking about the trauma that that not only inflicted on her and her daughter, but her partner and her older children. I mean, that’s the thing that I always think about as a mother. What impact does this have on your toddlers? You can’t explain this to. But as she was recounting that, she became physically ill. And what happened in the courtroom is that I and the judge rushed to her first and then her partner was next. And he was intercepted by a marshal. But the judge was very kind and called a break in. And it was entirely Samantha’s decision to get back on the stand after the break, because I just have to say, like her and she has said this many times, her experience of going through this, what the state of Texas forced her to do has made her even more resilient about making people know what happened. She wants to tell her story. But it is very hard as an attorney to watch your client going through that and feel like you’re the one putting them through it.

 

Kate Shaw So, so brave of her to do it and then to continue testifying after that.

 

Molly Duane And I’ll just mention one more thing. While this was happening, the attorney for the attorney general who was standing, you know, sitting in his chair behind me as I was examining her, was weeping. And I just want.

 

Melissa Murray Is that Jonathan Stone?

 

Molly Duane Yes. I just wanted to turn around and say, why are we here?

 

Kate Shaw Yeah, there’s another story that maybe we could share and then we’ll move on that one of the plaintiffs in the lawsuit told Molly, which is that you differ somewhat in its particulars from the stories we’ve talked about already. So this individual was pregnant with twins and one of them had a condition. You know, I think it was the same condition that you just alluded to, 100% fatality rate. The recommendation here, because the woman was pregnant with twins, was what’s known as a selective fetal reduction where an abortion is performed to end the non-viable pregnancy. But the woman can continue to carry the healthy twin as a single pregnancy. And there is a huge risk if you don’t do that, that early labor will happen before the healthy twin is viable, meaning that neither twin survives. So this woman did travel out of state. She had this elective fetal reduction procedure. She returned. She was initially really scared to go to the hospital in Texas when she had some leaking and bleeding, but she ultimately was able to carry the healthy pregnancy to term. And so we wanted to play that here.

 

Clip So if I had not gone out of state and had just done what was legal in Texas, my daughter Mali, would most likely be in the Nicole because she would have been born before 37 weeks. All of my ultrasounds leading up to labor, I would have had to watch Twin a Ayla deteriorate more and more every ultrasound. So I would have had to give birth to an identical version of my daughter without a skull and without a brain. And I would have had to hold her until she died. And then I would have had to sign a death certificate and plan a funeral and decide if we wanted to bury her or cremate her. It would have just been really, really heartbreaking experience. But instead, I got to just give birth to my healthy daughter instead of crying from heartbreak. That day, I was crying tears of joy, relief.

 

Kate Shaw And then here’s her talking about the impact of the experience on her and on her willingness to have another child or to get pregnant again in the state of Texas.

 

Clip Ms.Brandt, after this experience, have you thought about having more children? No. I don’t feel safe to have children in Texas anymore. I know that it was very clear that my health didn’t really matter, that my daughter’s health didn’t really matter. And that’s heartbreaking. I also know that since I’ve had one pregnancy impacted by a neural tube defect, that I’m at a slightly increased risk of having another. And I just wouldn’t feel safe carrying that type of pregnancy in the state. So after my daughter was born, my husband actually got a vasectomy. And we’re just going to take our two healthy kids and be grateful. Overruled.

 

Kate Shaw Yeah. I mean, I just thought it was so pointed to hear her talk about what she understood to be Texas’s disregard not only for her and for her health, but for politicians who suggest that life is somehow like driving them in a concern for life is what is driving them. That her daughter’s health actually didn’t matter to them either. That the law did not seem to consider that the danger posed to the one viable twin just didn’t matter because the sort of maximalist enforcement of this prohibition was the only thing in the minds of policymakers. So I just thought that was an incredibly powerful story to share as well.

 

Molly Duane Yeah, that’s exactly right. Actually, two of our plaintiffs were in this situation. So the one you’re talking about, her name is Ashley Brandt. Lauren Miller is another one of the plaintiffs. And in both of their cases, they were pregnant with twins. And to protect both their own life and the life of the surviving twin. This was the health care that they needed. And lucky for both of them that they were able to travel out of state. But the experience of doing that was itself extremely traumatic. And I think we play that down a lot. Oh, you can just travel. Well, first of all, most people cannot. But even the ones that can, the experience of that of needing health care, of having to, you know, go through a serious medical procedure in a hotel room, this is not how our health care system is supposed to work, and it’s certainly not pro-life.

 

Leah Litman What was the outcome in this case after this trial with this testimony?

 

Molly Duane So what happened is that we had this two day hearing and the district court had before it both our request for a temporary injunction and the state’s request to dismiss the case in Texas state court. That’s called a plea to the jurisdiction. And what happened is that the district court denied their jurisdictional motion, granted our temporary injunction motion. And so for three short hours, we had a temporary injunction in place. I this is a whole other story, but it was a Friday night and I was frantically trying to get a court staffer to come back and let me pay the hundred dollar bond so that the injunction could go into effect immediately. And when I woke up in the morning, the state had filed their appeal, which in Texas state court means that the injunction is automatically stayed. So that is where we have been for the past few months, to Texas’s credit. You can actually get a pretty quick hearing up to the Texas Supreme Court. So our briefs are all completed. Amicus briefs are being written now and we are set to present argument before the Texas Supreme Court the Tuesday after Thanksgiving.

 

Melissa Murray What’s your hope going into that oral argument in this appeal?

 

Molly Duane Well, obviously, I’m hoping to win, Melissa, but.

 

Melissa Murray Well, fair enough. What kind of reception do you think you’ll get at the Texas Supreme Court?

 

Molly Duane Yeah, I really don’t know. It’s it’s kind of interesting because in some sense this this puts the usual abortion politics before the justices. But in another sense, this is something that a lot of people have gone through. Some people quite quietly write infertility and and issues getting pregnant and and you know, wanting a child and having difficulty having one is is a pretty shared human experience in a lot of places. And so I’m really not sure. But but what I can say is that Texas is not going to be the first. And I hope that that gives them some comfort, although, you know, sometimes they like to be cowboys out there. I’m from New Mexico, so I’m allowed to say that. But but courts in North Dakota and Oklahoma and Indiana, which are not really bastions of liberalism, have all said that you do not have to wait until and a patient is on the brink of death before they can be offered an abortion. And as I said, the history and tradition of Texas law works in our favor. So we’re we’re optimistic and hopeful that that this will, you know, result in real people being able to access abortion care again in Texas. And obviously, it’s going to be a long fight. But, you know, even if the court rules against us, my position all along has been say it to our faces and a lot of the plaintiffs are going to be sitting in the courtroom. And I want the justices to see them when they consider whether or not, for example, none of them have standing.

 

Melissa Murray Yeah, I know that CRR has other suits like this one pending in other jurisdictions. We’ll talk later about the suit in Tennessee. And I believe there’s also a suit that’s been filed in Oklahoma and one in Idaho. Can I just ask a broader question? I mean, these are incredibly sympathetic plaintiffs, women who did want these pregnancies and had, you know, really tragic experiences of pregnancy loss or difficult choices that they had to make in the course of their pregnancy. Has there been any discussion about maybe taking cases where the plaintiffs are perhaps less sympathetic to those who might have pro-life sensibilities, for example, women who were just like, I don’t want to be a mother, This is not my choice. Any sort of thoughts about curating plaintiffs for these kinds of cases and the kinds of litigation that you bring?

 

Molly Duane Yeah, that’s a very fair question, and it’s something I think about all the time. And, you know, obviously, these cases that we’ve filed in Texas and Idaho and Tennessee have caught the public’s attention and have gotten a lot of press. But I want to emphasize that this is not the answer. This is not everything that we are doing. This is a very narrow slice of abortion seekers. And I truly, truly do not want our plaintiffs to suck up all the air in the room because not wanting to be pregnant is also a completely fine reason to seek an abortion. Those are the abortions that my grandmother and my mother received, and I support them 100%. So I see this case as a part of our strategy, but not all of it. You know, the Center for Reproductive Rights is a global organization. So we have talked a lot with our colleagues in other countries about, you know, how do you start a decriminalization effort, a campaign. And our colleagues in places like Ireland and Colombia and Mexico and Kenya, they all emphasized that sometimes this is how it starts. So those who are familiar with the story of Savita Halappanavar will know that Amanda’s story sounds really similar, except that Savita died. But it was her death that helped spark a revolution in Ireland to transform its abortion laws. So part of. What we’re doing here is just normalizing abortion. But we work really hard not to stigmatize the vast majority of abortion seekers who are not are plaintiffs in this lawsuit. And I to be perfectly honest, I’ve really enjoyed, in a strange way, representing individual people. It is different from what my practice was before. Dobbs But I am you know, I get phone calls all the time. Call me, email me. I am ready and willing to help anyone who wants to tell their story. I have to just recognize, you know, organizations like We Testify have been doing this work for many, many years and have recognized the importance of abortion storytelling to destigmatizing abortion and miscarriage care. So we don’t seek to to replace those efforts. Rather, we are trying to work alongside them and say to the public, look, you think you support an abortion ban, This is what it actually looks like in practice. And the thing that I keep hearing from sometimes the plaintiffs themselves, but also their families and their friends, is that how they were opposed to abortion until they found out what happened to, you know, this person? And now they’re thinking, well, maybe you should just leave this to doctors and their patients. Right. It’s not the response is not, oh, well, these are the only abortions that should be happening. It’s maybe government shouldn’t get involved in this in the first place. So I find that hopeful.

 

Leah Litman So maybe we should end on that hopeful note. Molly Duane, thanks so much for making the time to talk to us today. We will be keeping a close eye on this argument at the end of the month in the Texas Supreme Court and thinking of you and wishing the best for you and your clients.

 

Molly Duane Well, thank you all for having me, and thank you for the good vibes. We need some good vibes in the ether as well.

 

Melissa Murray And some good law.

 

Kate Shaw We’ve got to take one more quick break. And after that, we’re going to turn our attention to eastern Tennessee and northern Mississippi to hear about the realities of a post Dobbs world on the ground there.

 

Leah Litman [AD]

 

Melissa Murray Okay, listeners, as we previewed at the beginning of the show, we’re not just going to focus on taxes. We’re also going to focus on another state with an equally terrible record on reproductive rights. So joining us now is Ashley Coffield, the CEO of Planned Parenthood of Tennessee and northern Mississippi. Since jobs, the reproductive health care landscape has changed dramatically in Tennessee and northern Mississippi. But Ashley and her team at Planned Parenthood hit the ground running to respond to all of these challenges. They’re no longer able to provide medication and surgical abortions in Tennessee, but they have referred patients to other states for this kind of care. And notably, they have expanded their family planning services to include, wait for it, vasectomies. Because men have reproductive rights, too, and maybe they should exercise them. Ashley, we’re so excited to have you here to talk about what’s going on in Tennessee and northern Mississippi. Welcome to Strict Scrutiny.

 

Ashley Coffield Thank you for having me. I love the show.

 

Leah Litman So as our listeners know, the Dobbs decision leaked in early May, about 50 days before the final decision was announced. And in 2019, the Tennessee legislature enacted the Human Life Protection Act of 2019, a trigger law that would take effect 30 days after a judgment overruling. Given that, Ashley, you were on notice that row was likely to be overruled, what did Planned Parenthood do to prepare for the impending change in the legal landscape for abortion care?

 

Ashley Coffield Well, it was a long time coming because, you know, the trigger ban was in 2019 in Tennessee, which was an if then. Then, you know, a total ban. And then in 2021, there was a six week ban. And then in 2022 came the decision. It was just this kind of horrible build up. And the six week ban hit us harder because it felt more real. Even though that’s not what ultimately got us, you know, it was the trigger ban that did. But the six week ban was a real gut punch. So it was a couple of years of knowing, you know, that it was coming. And let me give you a little more context. You know, six months before the Dobbs decision, one of our health centers was burned down by a domestic terrorist. So we were dealing with a really violent act against our affiliate. That was the first time in our history that we had been face to face with violence like that. The way that we did prepare in that context of kind of hell that we were in was really thinking about primarily how we were going to navigate people out of the state to get abortion care in other states. So we were, you know, hiring social workers, preparing them with resources in order to help people with logistics like, you know, travel. We were thinking about the additional family planning services that we could offer, like vasectomy, which we recently launched. And we were thinking about how to return reproductive health care to East Tennessee, where we had our health center burn down. And we had thousands of patients there who counted on us not just for abortion, but for gender affirming care and for family planning. So there was a lot going on at the time of the ban.

 

Kate Shaw So that’s essentially the kind of lead up to. Dobbs Can you now give us a sense of what things have been like on the ground in Tennessee and northern Mississippi since the Dobbs decision was actually issued?

 

Ashley Coffield Well, I feel like we’ve been tasked with dramatically ramping up our ability to care for people who need us now more than ever. And one thing that’s really surprised us is how few people, the relatively low number of people that have reached out for us for help to navigate to other states compared to the number of people who reached out to us for abortions when abortion was legal. You know, we thought that the numbers would be somewhat comparable. You know, the people who need abortions would also come back to us and trust us to help them with navigation. And that’s not been the case. And I think it’s because the climate of fear around the abortion law and the confusion about the law and people think that they might be breaking the law, you know, if they want to talk to us or if they want to travel out of state to get an abortion, which is not true. They’re not breaking the law by doing that. But I do think there’s a real climate of fear. And one thing we’ve learned through helping people travel is that a lot of people in Tennessee who may have been able to get to us in a brick and mortar health center to get an abortion have a lot of trouble with this travel for all the reasons that we thought. You know, how difficult it is to travel out of state. They’ve never been out of state. They don’t have proper transportation and time off work and all those kinds of things. But a lot of people don’t have Internet access and they don’t have good devices to use or take with them when they’re traveling. And so just the fact of them reaching out to us and us helping them with logistics is huge because they just they just don’t have all of those resources to manage something that complicated and then to, you know, manage a trip like that without somebody really holding their hand through the process.

 

Melissa Murray So as we noted in the introduction, your offices are no longer providing medication or surgical abortions in Tennessee, but you have pivoted to begin providing vasectomies for men. So what was the thinking behind focusing on reproductive care for men, and what did your office have to do to get TechEd up to be able to provide those services? Had you always provided men’s reproductive health services or was there special training that your providers had to get to be able to provide vasectomies?

 

Ashley Coffield Well, Melissa, it was surprisingly easy to stand up for sanctuary services compared to abortion services because there’s no laws restricting access.

 

Melissa Murray Wait, wait.

 

Ashley Coffield There’s very few.

 

Melissa Murray There’s no laws restricting vasectomies.

 

Ashley Coffield No, if a patient is a medicaid patient, there’s a waiting period. There’s a required consult and a waiting period. But other than that, there’s.

 

Leah Litman I would think, what what could be different between.

 

Melissa Murray Those seeking abortions.

 

Leah Litman And those seeking vasectomies? What could be different about these kinds of reproductive.

 

Kate Shaw Nothing comes to mind.

 

Melissa Murray No. No.

 

Leah Litman Okay. Yeah.

 

Melissa Murray I mean, it’s almost like men have greater reproductive freedom than do women.

 

Ashley Coffield And what’s interesting, you know, we trained our medical director, who’s an Ob-Gyn, to do it, and she went down to a vasectomy provider in Florida. He calls himself the vasectomy king. You can Google him.

 

Leah Litman And I’m going to start calling Sam Alito the Vasectomy King or Vasectomy Prince.

 

Melissa Murray Right?

 

Leah Litman It hits.

 

Ashley Coffield It hits. Yeah. And you know, the thing that men face, to be fair, the thing that men or people with penises face about this decision for them is providers can be some providers can be judgmental about their decision and can they can say, well, you’re too young to make this decision. Ah, you’ve not had kids, so I’m not going to do it. And you know, we’ve made the decision that if you’re an adult and you’ve been through the consenting process and you know the risks and the costs of reversal and the issues with reversal and you still want to do it, that’s your decision and you can do it. So what we’re saying or younger people coming in for vasectomy and people who’ve been turned down by other providers.

 

Melissa Murray Are there any other plans to provide other kinds of primary care services? Everyone knows that. I don’t know if everyone knows this, but we know that Planned Parenthood’s are often a place where you not only can seek abortion care, or at least you could seek abortion care, but you can also get other basic kinds of health care like mammograms. Are there other plans for you all to provide other kinds of services like prenatal care to those who are pregnant?

 

Ashley Coffield We are talking about prenatal care. We want to be a good partner in the community and think about where we fit in to that service. What we’ve started with is primary care services like hypertension screening and diabetes management and those types of services. There’s disparities with cardiovascular disease and hypertension and diabetes among black women, and that causes pregnancy complications. And it’s one reason for the disparities in pregnancy outcomes and birthing outcomes. So we decided to focus on some primary care services that we had not previously had the bandwidth to focus on while we were trying to manage the abortion landscape that we were in. That was very complicated and difficult. So we’re really excited about adding those services and hoping that we take better care of our patients that way, because we’ve seen this over the last decade. They’re presenting with these issues at younger and younger ages.

 

Leah Litman So you already mentioned this, Ashley, how black women, you know, in Mississippi and Tennessee and Memphis in particular have some of the highest rates of maternal mortality and morbidity in the country. You have the legislature. Is another state taken action to deal with this in the wake of Dobbs? I guess I can answer that. No. But, you know, how is Planned Parenthood attempting to address this, you know, in light of the states in attention to it?

 

Ashley Coffield You know, it’s so hard. I’m sure you all know that Tennessee passed a law in 2021 prohibiting it’s called the Prohibitive Concepts law. You know, that stop schools from talking about structural racism. And the law didn’t call it structural racism. But if you know anything about white supremacy, you know what it’s actually saying? Because it said that you can’t talk about the United States being fundamentally sexist or racist. Well, what is fundamentally mean? You know, it’s a really vague. It probably means you can’t talk about structural racism. So in talking with them about disparities, it’s impossible to talk about disparities without talking about structural racism. And so there’s not even a conversation about it. And, you know, our state has decided not to expand Medicaid, which is itself a policy of structural racism, even though many, many white people in Tennessee would benefit from that. That’s exactly what it is. And they have no shame in that policy. They have absolutely no shame. So without that shame, there won’t be any action on it anytime soon. So we’re at a logjam. You know, the gun safety issue that was so in the news recently in Tennessee when the shooting at the Covenant School in Nashville happened, the three legislators that were expelled, democratically elected legislators that were expelled from the General Assembly for standing up for the 5000 kids who were standing outside the General Assembly and being ignored. You know, gun safety is also an issue of structural racism, and it’s has disparate impacts on black and brown people. And they wouldn’t even acknowledge the people who were there to talk with them about it. So we have we’re not dealing with a real democratic institution that’s there to listen to everybody’s concerns and have a real conversation about policy. That’s not where we are right now.

 

Melissa Murray The abortion ban, which was enacted in 2019, was actually amended in 2023, and it does have an exception that permits abortion if it’s necessary to, one, prevent the death of the pregnant person or to in circumstances where there’s a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant person. But interestingly, the 2023 amendments specifically foreclose applying those exceptions in circumstances where the woman is threatening self-harm or for any reason that relates to her mental health. I just want to note that’s that’s a really different sort of posture to be in. I mean, because like at least in the period preceding Rowe versus Wade, one of the ways that doctors were able to authorize abortions was by adverting to the fact that a woman was suicidal or her mental health was impaired by the prospect of having to deliver a child. And, you know, have you seen the sort of confluence of mental health crises or suicidal ideation among the pregnant population in Tennessee as a result of these amendments?

 

Ashley Coffield I think any patient who is being denied an abortion when they need one is having a mental health crisis on some level, and I think hundreds. If not thousands of mental health professionals across Tennessee would be happy to help a person in that situation. And our opposition knows it. And that’s why the law was written that way. But it is chilling when you read that a suicide is not an exception.

 

Leah Litman We also wanted to ask you about another lawsuit, one that directly implicates Planned Parenthood of Tennessee and whether Mississippi and the Tennessee attorney general filed suit against the federal Department of Health and Human Services challenging HHS. This decision to withhold Title 10 funds. That’s a family planning program, those funds from Tennessee. Can you get us up to speed on that case and how it impacts Planned Parenthood’s work?

 

Ashley Coffield Yeah, absolutely. Well, the state of Tennessee refused to comply with a Title ten regulation that they provide non directive counseling to pregnant people, meaning that if the pregnant person that comes to a Title 10 clinic asks for information about abortion services, that those resources are provided, just like if they ask for information about accessing prenatal care or if they ask about information about adoption, those resources would need to be provided. And they pragmatically, you know, made the decision not to comply, even though my understanding is that they were warned that they would be removed from the Title ten program and they did it anyway. And this is in the context of them walking away from our HIV prevention money. A few months before that, they did that voluntarily rather than give any of that money to Planned Parenthood. So they made the decision not to comply. And the the Office of Population Affairs at the U.S. Department of Health and Human Services made the decision to remove them from the program as of April 1st. And we knew that about this compliance issue because there are Planned Parenthood affiliates that are Title 10 grantees that were, you know, having to comply. I knew that the state wouldn’t comply. I knew that they would be pragmatic about it. It’s just like Medicaid expansion. You know, I’m not going to do it. I’m just not going to do it. I’m not going to do what you say. I’m not going to participate in this. I’m going to live here on my Christian commune in Tennessee and just ignore what everybody else is doing and slowly dismantle the sexual reproductive health care protections that we’ve built up over decades. So they decided to leave the program. We knew that it would be the easiest thing for the federal government to get the money back to Tennessee. If a direct grantee, somebody who was already a direct grantee in the program, asked to expand their program to include Tennessee. So I worked with the Virginia League for Planned Parenthood that is a direct grantee, and asked them if they would be willing to expand their grant to include the state of Tennessee and if we could apply together. And they graciously did so. And so a big part of the money went to the Virginia League for Planned Parenthood, which is now subcontracted with our affiliate, so that we got half the money back to Tennessee. And then another nonprofit in Mississippi had the same idea and got the other half of the money back to Tennessee. And together we’ll be able to build a Title ten network outside of the state of Tennessee. So then what did they do? Even though they voluntarily did not comply with the program, they’ve decided to sue the U.S. Department of Health and Human Services. You know, with the argument that the non directive counseling requirement is not something that they should have to comply with.

 

Melissa Murray Sounds like a good way to end things. Thank you so much for coming in today, Ashley, and helping us understand what’s going on in the rocky top state and in northern Mississippi as well. We salute you and all of your colleagues at Planned Parenthood of Tennessee and northern Mississippi. Thanks for being here.

 

Ashley Coffield Thanks so much for having me. Appreciate ya’ll.

 

Kate Shaw [AD]

 

Leah Litman Don’t forget to follow us at Strict Scrutiny on Instagram, Twitter, Threads, and Blue Sky. Be sure to subscribe to the show and if you are as opinionated as we are, consider dropping us a review on your favorite podcast app. We’re especially grateful today to the people who took the time to record the court transcripts for us. David Toledo, Fiona Pestana, Gabriella Leverett, Julia Beach, Megan Patsel and Natalie Bettendorf. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Heringer and Ari Schwartz.