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January 23, 2023
Strict Scrutiny
Cosplaying an Investigation

In This Episode

Kate and Leah were live from the University of Pennsylvania in Strict Scrutiny’s first live show of 2023! Penn Law Professor Jasmine E. Harris joined the hosts to recap arguments in a case that could impact disability rights. Kate and Leah recap two other arguments, in a case about immigration law and another about the ability to criminally prosecute corporations owned by foreign states. Plus, a major update about the Supreme Court’s “investigation” into who leaked the draft opinion of Dobbs last spring. And Temple University Law School Dean Rachel Rebouche joined the hosts to talk about some concerning updates in abortion access– an unfortunate commemoration of the 50th  anniversary of Roe v. Wade.

  • Here’s the report summarizing the Supreme Court’s investigation into who leaked the Dobbs opinion. (TLDR: they still don’t know who did it, but they tried their best? Former United States Secretary of Homeland Security Michael Chertoff said so.)

 

TRANSCRIPT

 

Show Intro Mr. Chief Justice, may it please the court. There’s an old joke, 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 Hello, everyone, and welcome to a very special live recording of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman, and we are thrilled to be at the University of Pennsylvania Carey Law School for our first live show of 2023. A Thrilla in Phila. Yeah, I wanted to try that one out. Okay, so thank you to the student chapter of the American Constitution Society, or yes, with a special shout out to chapter President Jess Self and programing director Adam Delisle, and also the student chapter of If one. How cochair is Ana Rosenfeld and Izzy Hernandez If it’s not on your radar, if one How is a great reproductive justice organization with chapters at many law schools? I was actually just at the University of Chicago Law School for an ex if one how events. I wanted to give a shout out to the wonderful student hosted organizers of that event. Sophia maria, Eliana Julia, who I met after the event. Zoe, Carolyn and Erika.

 

Kate Shaw And although we are without our fearless co-host Melissa Murray today and don’t worry, she will be back next week, a live show in Philly does mean that we get to take advantage of some wonderful guests.

 

Leah Litman Not greedy, but great guests.

 

Kate Shaw I would say better than Grady, honestly. But later in the hour, we will be joined by Jasmine Harris, a professor here at Penn, who will help us make sense of Perez versus Sturgis Public Schools. And after that will be joined by Rachel Rebouche, who’s a professor and dean at Temple Law. She’s going to help us unpack some recent post Dobbs developments, including involving medication, abortion.

 

Leah Litman So the plan for today is we’re going to start by recapping the court’s cases. Last week it heard only three, and we should have plenty of time to discuss goings on outside of the court, including post Dobbs developments and also some court culture. This will include some time on the report Air quote reports the court issued on the Dobbs Leak on Thursday.

 

Kate Shaw So let’s dive right into the recaps. First up is a case called Santos Zakaria versus Garland. This case involves a provision of immigration law, eight U.S.C. Section 1250 2d1, which permits courts to review final orders of removal only if the non-citizen has exhausted, quote, all administrative remedies available as of right. So there are two questions in this case. First, whether this requirement is jurisdictional, which would mean it’s not a requirement that can be waived or forfeited, or whether it is in fact a mandatory claims processing rule, which would mean that it can be waived or forfeited here. Waived or forfeited. It just means that a party can either choose not to object or fail to object to something the other party would ordinarily be required to do. And sometimes when that happens, a court can overlook the failure and decide the case anyway. But federal courts can’t ignore issues that go to jurisdiction, right? That is their power or authority to hear the case at all. And variations on this question like whether a particular rule is jurisdictional or not, have arisen in a lot of other cases, including one earlier this term called Wilkins. So it’s a question that arises in a variety of context. And here it arises in this very high stakes immigration law context.

 

Leah Litman This case also involves the second question whether in order to exhaust all administrative remedies in noncitizen has to file a motion to reconsider with the Board of Immigration Appeals and ask the board to exercise its discretion to correct its own error before they seek review in the federal courts. All of this sounds really technical, and it is, and so did the oral argument. But we can talk about what’s actually at stake in this case. The underlying facts are difficult and sad. The petitioner here is a transgender woman who was raped and received death threats on account of her gender identity and sexual orientation in her home country, Guatemala. She fled to the United States, where she is seeking withholding of removal. I wanted to give a tip of the hat to the federal government, who, throughout the oral argument, correctly referred to as Santos, is carried out with feminine pronouns. You might think that’s like baseline expectation. True, but not all branches of the federal government are on board with this. So we’ve previously talked about a pretty horrifying decision from the Fifth Circuit that said district courts can refuse to refer to transgender litigants according to their correct pronouns. And several weeks ago, the 11th Circuit issued their en banc opinion and Adams versus School Board of St John’s County. So en banc just means every active judge on the Court of Appeals heard the case. And in that opinion, the 11th Circuit said that requiring transgender students to use bathrooms corresponding with the sex assigned at birth doesn’t violate the Constitution or Title nine. And in the course of saying that the majority opinion, which was written by Judge Lagoa, a Trump appointee who was on the short list to replace Justice Ginsburg, refused to use the student’s pronouns. The student who was a transgender man was referred to in the opinion as, quote, biologically female because it’s not enough to greenlight discrimination on the basis of gender identity. You apparently have to be gratuitously not. When you do.

 

Kate Shaw So. So back to Santos Zakaria. Okay. So during immigration proceedings, an immigration judge found her account credible, but somehow also ruled that she did not suffer a past persecution and thus was not entitled to a presumption of future persecution. She then appealed to the Board of Immigration Appeals, which reversed on the issue of past persecution. But rather than remand to the ICJ, the immigration judge, the board went on to make several findings of fact on its own, and this, according to the petitioner, was actually contrary to the board’s own regulations and in those findings determined that the petitioner had not shown that she would be persecuted in the future. She then sought review before the Federal Court of Appeals for the Fifth Circuit, claiming in relevant part that the board procedurally aired in engaging in its own fact finding rather than remanding to the immigration judge for fact finding. The government did not argue that she had failed to exhaust this argument. But the Fifth Circuit still concluded to a SO on its own, even though the government wasn’t asking it for this, that petitioner had failed to exhaust her argument about improper fact finding, meaning the Fifth Circuit said she needed to file a motion to reconsider in the Board of Immigration Appeals before going to federal court to seek review. And this is an issue on which the courts of appeals are divided. And so the Supreme Court took the case to resolve the dispute. Okay. Observations about the oral argument. I mean, one, I will say Justice Alito does seem to have found his voice. We mentioned he was oddly kind of like ominously quiet last week, but he was sort of back in the saddle this week. But honestly, during this argument, nothing that we really need to subject you to. So we’re not completely clips.

 

Leah Litman There are two clips we did want to play. One is a clip whose significance is relevant to another case actually, that other cases a pet issue of mine. So I apologize, but some things just need to be said. And when there is habeas arcana that Neil Gorsuch is about to get wrong, many things need to be said. So bear with me.

 

Kate Shaw This is why you have a podcast. You can do this.

 

Leah Litman I can scream about Neil Gorsuch and post-conviction of you. Okay, so regular listeners of the podcast may remember that the court is hearing a really important habeas case this term, Jones versus Hendrix. And that case is about whether people can file a federal habeas petition if they were mistakenly convicted of something that isn’t a federal crime or were mistakenly sentenced to more time in prison than the law imposes on them. Because a court made an error about what a criminal statute means. Basically, all of the courts had said, yes, of course those people can file habeas petitions and then Neil Gorsuch like, but actually made himself into the opposing position and opened up a circuit split. So one of the reasons he said there are no habeas petitions for people who are wrongfully convicted or sentenced is because of a very particular word that is used in the relevant statute. Specifically Neil Gorsuch, knower of the one real true meaning of all words said, Well, look, the statute says you can file a habeas petition if the remedy is inadequate, but a remedy, he says, is different from relief. And whether you can get relief remedy is the process you use to get relief. This is his actual reasoning. It hinges on the apparently very significant difference between the words, quote, remedy and relief. Listeners, let’s roll the tapes and see whether there is in fact, such a meaningful difference between the word remedy and the word relief. Here’s another textualist, at least an avowed textualist word scientist, suggesting actually they mean the same thing. So this is from the Santos Zacharia argument.

 

Clip What is the remedy here? I guess I would have thought of an appellate remedy as, you know, vaquita or a reversal, that kind of thing. And I think, you know, I can see where you’re going with as of right when we think about the remedy. And this is a problem, I think, on the government side, too. Why would the remedy either be the right to file a motion or the review that you obtain? Neither one of those really seems like a remedy to. Well.

 

Leah Litman She literally equates remedy with vaquita to the relief. And I realize I’m already amped up at about 100. This is partially the risk of recording a live show after you white knuckled yourself on a flight. I’m a nervous flier and couldn’t medicate yourself, so. But because I don’t want to have to do the same side tangent when we get to Perez. And also because honestly, it feels like the justices are just trolling me on this. The same thing. The same thing happened at the oral argument in Perez with another justice saying, well, of course, remedies and relief are interchangeable. They mean the same thing. So play that tape.

 

Clip Mr. Martinez, what do you make of the fact that 1415 F uses the term remedies and then also uses the term relief? Are you talking about the 1415 l the exhaustion provision or. I’m sorry. Yes, that’s what I’m talking about. I think that I don’t make much of that, Your Honor, because I think that whatever remedies might mean, relief really only has one reasonable meaning here. And it means the specific remedies that you can get at the end. Why would they? Compensatory damages is a remedy. Why wouldn’t they use the term remedies there? I think they I think they could have used the term remedies there, but I don’t think that they had to. And I just this elegant variation. Yeah. And there are other places in the US code where you have these terms remedies and relief used in close proximity without any reason to think that they mean something different.

 

Leah Litman So again, I would just like to have it noted that when the court says legally innocent people, people who were convicted of something that isn’t a crime can’t file habeas petitions because Congress used the word remedy, you will know in advance. That is bullshit. You heard it here first. If people if Neil Gorsuch is going to, but actually his way into keeping legally innocent people in jail, I will. But actually him from here to eternity.

 

Kate Shaw But. But better way. Way better.

 

Leah Litman Oh, yeah.

 

Kate Shaw Okay. So that is one sort of moment, both from this argument and also from the pres argument that we’ll return to in a couple of minutes. Back to this case, there was one set of moments that were kind of weird that we wanted to highlight less substantive, and the first thing we wanted to highlight the kind of interesting and revealing nevertheless. So a set of moments between Justice Barrett and Justice Kavanaugh that I read as being kind of about their, like obvious chumminess, which I was at the court. I hadn’t been there in a long time, but I was at the argument in Moore versus Harper, the independent state legislature theory case, and I noticed their chumminess on the bench. And this moment I thought was confirmation of what I thought I had noticed. But then, Leo, you thought it was also about the Kavanaugh kind of like playing chief? Sort of. And anyway, let’s play this clip. Their first kind of talking over each other in this like almost kind of meet cute way and then Kavanaugh like calls on Barrett anyway. Let’s play it now.

 

Clip Counsel, can I ask you. Go ahead. Go ahead. Go ahead. Well, I. Was going to switch to waiver of forfeiture. So. Okay. So then one question on Justice Jackson’s questions. I think the key is on the prior language. This court had said it’s jurisdictional, right? This court said it. And any can we repeated that post, uh, post the new act and post. All right. So that’s what that’s what I thought was your argument was the language didn’t really change in substance. We called it jurisdictional. So it’s still jurisdictional? That’s correct. But that is absolutely correct and 100% agree with it. But I do want to say that I think what this court’s cases have been saying over and over again in saying that there doesn’t need to be a magic word requirement, is that a limitation on what a court may review is talking to the court’s adjudicatory authority? And both of them are written that way. But also, if you had any doubt that, yes. That’s justice. Counsel, I just wanted to ask you about the waiver of this.

 

Leah Litman To me, when I heard it seemed like weird wannabe chief vibes, like he thought it was now his role to direct the oral argument, like him leaning into the media coverage about how this is the Kavanaugh court now. And it also reflects his weird super fan boy ness over the chief justice. But it also just had oddly paternalistic and gave me this weird, affected, chauvinistic vibe as well. It’s like. Justice Barrett can interrupt the Advocate and start talking if she wants to. She doesn’t need you to call on her a little bit.

 

Kate Shaw Yes. She also seemed to feel like, why am I being called on? Yeah. Anyway, so those were a couple things. One, to play from the argument in terms of the sort of take away. Substantively, I thought the court actually was likely to find the exhaustion requirement jurisdictional, although whether that means this motion to reconsider was required isn’t at all clear. And there actually was, I thought, a pretty useful brief by some former immigration judges filed by the law firm Perkins Cowie that made clear there are all kinds of peculiarities of immigration law that the justices should be aware of regarding motions to reconsider. Sometimes you can only file one either with the immigration judge or with the Board of Immigration Appeals. So requiring everybody to file one with the BIA when some people are completely disabled from doing so if they’ve already filed with the immigration judge, would be a problem. So there are you know, I would hope that the court, whatever it does, is mindful of the potential repercussions for immigration law in general, which is obviously already an incredibly complex and difficult body of law to navigate with the highest conceivable human stakes. So that’s, I think, the big takeaway for me.

 

Leah Litman I’m sure they’ll be very careful about what they say and consider the consequences carefully. I actually thought it was more likely that they were going to say it isn’t jurisdictional, or at least that exhaustion wasn’t required here. I took from the oral argument, I kind of thought petitioner was going to win, but we’ll see. On the next case we wanted to talk about is Turkey a bank versus the United States? Is Turkey a hop bank versus United States? And the question here is whether federal district courts can exercise subject matter jurisdiction under 18 U.S.C. 3231, which covers offenses against the laws of the United States, and whether that extends to criminal prosecutions against foreign sovereigns and their instrumentalities. There’s also an additional question in the case about whether prosecutions are permitted in light of the Foreign Sovereign Immunities Act and maybe also federal common law of immunity. So the background here is that a grand jury indicted Turkey, a bank, a bank whose shares are majority owned by the Turkish government on various counts, all broadly related to evading or conspiring to evade the United States sanctions on Iran. And the allegations are that this was a multibillion dollar scheme to launder proceeds from Iranian oil and gas.

 

Kate Shaw So the bank is arguing that this federal statute we just mentioned, 3231, actually doesn’t allow prosecutions of foreign sovereigns or their instrumentalities in federal court, and also that the Foreign Sovereign Immunities Act, or FSIA, which is another federal statute, acts as an independent bar to criminal jurisdiction over foreign sovereigns and their instrumentalities like this hoc bank. The Federal Government obviously says that this statute 3231, does confer criminal jurisdiction over foreign sovereigns and instrumentalities, and also that the statute, the FSIA, doesn’t confer immunity in criminal cases. And actually it’s the executive branch that has the authority to determine sovereign immunity in criminal cases. And it sort of has maybe a fallback argument that even if there is immunity under the FSIA as an initial matter, there is a commercial activities exception to that immunity that would apply in this case. So let’s get into the argument. It’s an incredibly interesting and actually kind of fun case that pits like plain text, just the text and nothing but the text approaches to interpretation against things like Congress’s purpose, intentions, expectations, substantive values. The justices might be sympathetic to like, you know, maybe not wanting litigation against foreign entities in U.S. courts. And there’s certainly something to the argument that Congress might not have thought it was authorizing these kinds of criminal suits against foreign governments or foreign instrumentalities in the general jurisdiction statute or the FSIA, or that it was permitting, like, you know, state or city prosecutions, which could be permitted on a case by case assessment, depending on common law, immunities or preemption.

 

Leah Litman So that’s all right. But the stuff I wanted to talk about in this oral argument was how Lisa Blatt, who was arguing for the bank, was full. Lisa Blatt in this argument, like her unfiltered self. And if you’re not sure what that means, I think I can only say go listen to one of her arguments. They’re a fascinating mix of aggressive and casual. And I think at this point, I at least have some doubts about whether all of the justices are super fans of that style. But of course, I can’t argue with her win rate, which is astonishingly good. And the court’s own rules and style guide have, at least in the past, you know, pointed to her arguments as exemplars for advocates. So we’re going to play some clips of Lisa doing the Lisa that will give you a sense of it. So this first one is Lisa Blatt interrupting Justice Sotomayor repeatedly and Justice Sotomayor having to explicitly tell her to stop.

 

Kate Shaw Protip, if you’re not Lisa Blatt, don’t ever interrupt the justices and maybe even if you are, don’t do it quite this much.

 

Clip But if I say the FSIA doesn’t deal with criminal, that undercuts all the reasoning of the Second Circuit. What do I do then? Well, you want me to decide the question? Yeah, but. Let me just start you back with Schooner Exchange. I mean, that is a Supreme Court case by Chief Justice Marshall. That’s on its face says you don’t construe general jurisdiction jurisdictional statutes. It is a admiralty jurisdictional statutes in the very same judiciary act. You’re. You’re fighting my premises, so please don’t fight my premises. Assuming that I disagree with you on the two aspects of the question presented, that it’s not jurisdiction yet. So that it’s a common law immunity question. Yes. So if you thought that Congress authorized district courts to convict foreign states at the time, that if you think that and you think that a broad grant that’s not limited to civil cases does not protect foreign sovereigns and that Congress just didn’t care about whether foreign started questioning Baghdad, then all we have is immunity. Please stop. It’s not a question of not caring.

 

Leah Litman Justice Sotomayor actually said, please stop. I think if she said that to me, I would die. And this was such an atypical thing to happen at an argument, you know, for an advocate to press on interrupting a justice to such an extent that a justice says, please stop that. Even Neil Gorsuch, who you know, at least to me, all signs suggest he’s maybe not the best at reading the room or social cues noticed and commented on it later on. And that made the end of Lisa’s initial argument. All the stranger to me, particularly in light of the clips we’ll also get to in a second. So at the end of her time, initially at the podium, Justice Kavanaugh gave this over-the-top thank you to her and apologized to her for taking up so much of her time. It was super weird and it reminded me of the remarks he gave at the Federalist Society annual convention right after he was confirmed, in which he basically said, I’m always going to remember who stood with me and who stood against me. And of course, Lisa was one of his very public supporters. And that entire exchange just made my skin crawl and like made me vomit a little.

 

Kate Shaw I now can’t remember. We didn’t put this in the notes. I’m a liberal feminist and I support Brett Kavanaugh. I think what was said was that the title of the op ed was totally verbatim. But. But yeah, so I guess he does remember this. So earlier in the arguments or before the end, Lisa proceeded to at least twice, by my count, kind of like back handedly insult justices. So let’s play one example of that here.

 

Clip We have an independent search or a question that says there’s no jurisdiction under Title 18. So you’re saying the court just doesn’t pass on that, correct? I mean, you can do whatever you want, obviously.

 

Kate Shaw And one more like that.

 

Clip The actual government argument of government counsel was do not misconstrue the statute because it would be a just judicial declaration of war unless Congress gave you that authority. And I read the opinion, but there’s nine of you and one of me and you have all the power. So you’re going to read the opinion how you want. But I read it on its face to say, jurisdiction.

 

Leah Litman You know, just generally, now that everyone has heard this, maybe it’s worth stepping back. As regular listeners know, I have no problem with talking smack about and condescendingly about Supreme Court justices. So on one hand, you know, I have to hand it to Lisa Blatt for doing that to their faces over the podcast waves. And at the same time she’s representing a client. On the other, I am starting to have doubts that it’s a recipe for how to make friends and influence people. And I see this not just because of Justice Sotomayor and Justice Gorsuch as reactions, but also because of what we’ve heard previously this term and recently in others as well. So if you remember from earlier in this term, when we recap the oral argument about the Andy Warhol copyright fair use case involving the Prince photographs, we played this clip in which one Justice Justice Kagan seemed to be somewhat taken aback at how aggressively Lisa had dismissed one of the other side’s arguments and Justice Kagan’s question. So let’s play that clip again.

 

Clip So that is different from what the Second Circuit said, because I thought the Second Circuit took it out of the analysis entirely, said it was irrelevant to the question. No, And I think that’s very unfair to three members of Article three who three times said meaning and message is relevant. What they three times what you can hear.

 

Leah Litman Justice Kagan incredulously repeating what Lisa said back to her and having Justice Kagan derisively repeat back to me something I just said is still the stuff of my nightmares. And before, you know, the Andy Warhol case, there was this exchange from Carpenter versus Murphy a few terms ago that was the precursor to McGirt versus Oklahoma. And here to Justice Kagan’s remarks seemed to indicate some surprise at how Lisa had dismissively characterized the opposing sides argument. So let’s play that here.

 

Clip So, you know, whatever Congress. Thought it might want to do it decided it didn’t want to do it in the end. No, that’s fundamentally wrong in some respects. First of all, the 1901 act called fundamentally wrong. It’s fundamentally wrong because the 90 well, it’s it’s factually wrong. The tripe the allotment act call actually, and fundamental. It’s facts. I am just so.

 

Kate Shaw Here for the laughing in Kagan’s voice incredulously as she’s responding. So yeah, I think it’s pretty clear that Justice Kagan is like a little bit over this style of advocacy. But there were some moments with more levity and less kind of awkward cringe from this argument. So maybe let’s play one of those clips here.

 

Clip They have many or not many, MAXINE. They have comparable faces in some of those places like South Africa and Israel. But yes, it’s just been I mean, the world has been around for like 7000 years and no country has ever tried another country. Well, it’s just never happened.

 

Leah Litman And so takeaways, you know, I think they’re going to say there’s jurisdiction here was my read.

 

Kate Shaw Yeah. So I agree with that and I am less clear on. So that’s on just like the general federal jurisdiction statute, let’s clear on the Foreign Sovereign Immunities Act. QUESTION But my guess is if they say there’s jurisdiction, they maybe say the FISA doesn’t apply and remand for a determination on common law immunities, which came up a number of times during the argument and unclear, we’re going to get a ton from them about the extent or nature of judicial deference that the executive was asserting in this argument. So I think they might not say much about that.

 

Leah Litman [AD]

 

Kate Shaw The final case for a recap is Perez versus Sturgis Public Schools. And to break this case down, we are delighted to be joined by Penn’s own Jasmine Harris, who is a wonderful scholar of disability law and law and inequality. Jasmine, welcome to Strict Scrutiny.

 

Jasmine Harris Thank you so much for the invitation to join you today. And welcome to Penn Carey Law.

 

Kate Shaw We’re delighted to be here. So this case, like the immigration case that we discussed a bit earlier, is both about exhaustion, right? So what steps you have to take before pressing certain claims in court, but also about, you know, really fundamentally whether and when courts will hear very serious rights claims. So maybe, Jasmine, can you start by telling us a little bit about the student and his case against this Michigan school district?

 

Jasmine Harris Absolutely. So Miguel Perez is suing the Sturgis School District in Michigan for disability discrimination under Title two of the Americans with Disabilities Act. Perez argues that Sturgis failed to provide him with auxiliary AIDS and services and what that means principally as a qualified sign language interpreter, and that he needed for access to his public education. At the time of his original complaint, Miguel was 23 years old. The case goes back all the way to 2004, when Miguel was nine years old and his parents enrolled him in the school district when they immigrated from Mexico. Neither Miguel nor his parents spoke any English. That’s a key fact. The school enrolled a deaf student who only spoke Spanish, and they had an affirmative obligation under disability law to serve him. But the school district assigned him an aide who could not communicate in either Spanish or sign language. She was his only form of contact and communication for ten years. Over that decade, Miguel received A’s and B’s moved from grade to grade. Three months before his high school graduation, Miguel’s parents received notice from the school district that Miguel would not receive a diploma and instead would receive a certificate of completion. So the difference here matters. This isn’t a GED. The certificate is not accepted at universities, colleges and many vocational programs. So this means that this young person is left with few viable options for employment, community living or independence. The Perez family learned that Miguel had not learned to read or write, and he hadn’t interacted with classmates or teachers, and he was close to aging out of the special education system. So what did his parents do? They filed an administrative complaint with the Michigan Department of Education, raising claims under the IDEA for failure to provide a free, appropriate public education, the statutory standard and under the ADA, for failure to provide those auxiliary aids and services that would have allowed him an equal opportunity to access his public education.

 

Leah Litman So because this case is about the two statutes you just mentioned, the IDEA and the ADA. Can you help us out by just walking through those two statutes in broad terms?

 

Jasmine Harris Absolutely. So in acronym hell, here we go. The IDEA or the Individuals with Disabilities Education Act does predate the ADA, and Congress enacted the IDEA in 1975 under its Spending Clause authority to incentivize states to educate students with disabilities who were being excluded systematically from schools across the country for a variety of reasons without due process. The legislative history here notes that in the mid 1970s, approximately 4 million children with disabilities were not receiving appropriate educational services, and a whole other million were not receiving any services and were excluded from school altogether. So under the IDEA, Congress agreed to share cost of educating students with the states in exchange for compliance. So what do you need to know for this case? There are two key elements of the idea to understand as they come up. Congress designed the idea to prioritize collaboration and teamwork. T the big team work that you heard in the argument between the school staff and parents on behalf of the child’s education. Why? Because Congress understood that there was a ticking clock around student development. This matters because Congress also designed the mechanisms to meet this goal. And to the other thing you need to know under the IDEA. Compensatory damages are not available. Instead, students who challenge a school district for failure to provide a fate, as the Perez family did, can file an administrative complaint seeking what’s known as compensatory education, which is an equitable remedy to provide lost educate. And through additional services. So just very quickly, the ADA that was passed in 1990 and again amended, this is an anti-discrimination statute, a completely different statute that prohibits disability discrimination in employment, government services and public accommodations. So the protections of the ADA apply more broadly than those of the IDEA. Perhaps most important for the case, unlike the IDEA, the ADA allows a plaintiff to recover damages, compensatory damages for intentional discrimination on the basis of disability. They are two different statutes, and sometimes in the context of education, they overlap or run parallel.

 

Kate Shaw Okay, so that’s all incredibly helpful. So that’s the statutory background. And let’s now turn back to the plaintiff in this case, Miguel Perez. So you said his family once they realized a decade in. Just how deficient or how nonexistent the services provided had been. They initiated a complaint with the Michigan Department of Education. They raised claims under both the IDEA and the ADA. So what happens next?

 

Jasmine Harris So next, Miguel’s family settled their IDEA after the school district agreed to send Miguel to the Michigan School for the Deaf to compensate for the education that was lost. And they agreed to pay for post-secondary comp and compensatory education, sign language instruction, both for Miguel and for his family. They did exactly what they were supposed to do under the statute, as Mr. Martinez said during the argument. The settlement said nothing about Miguel’s ADA claim. Miguel then went to federal court. He argued that school district’s failure to provide him with adequate services violated the ADA, and he sought damages. But District Court dismissed Perez’s case and reasoned that, quote, at its core, end quote, it sought the same relief that is available under the A.D.A. So the family was required to utilize all of the full administrative process available under the IDEA. But because he settled his Aida claim before the full process, which included a hearing, an appeal, Miguel had not exhausted his claims and the Sixth Circuit thumbs up affirmed.

 

Leah Litman So what is Perez now arguing to the Supreme Court?

 

Jasmine Harris So Perez here says he was not obligated to exhaust his claim because his lawsuit only under the ADA sought money damages for the harms that he suffered as a result of the school district’s neglect and actions. And those are not available under the A, the IDEA. But even if the IDEA does require that Perez exhaust the IDEA process, guess what he did just that exhaustion cannot mean never settle. His IDEA. Claims were resolved through the settlement. The school district says the IDEA reflects a decision to channel all claims that involve the free appropriate public education or the faith sometimes heard as the fap. During the argument, the IDEA guarantees into an administrative hearing process and that finding for Perez would mean all plaintiffs could just circumvent those procedures and that the IDEA requires simply by making a request for damages, and that this of course would undermine the core purpose and guarantees in the statute.

 

Kate Shaw That is a great overview of the sort of both the facts and the legal questions in the case. So let’s now turn to the oral argument. Thoughts? Sort of top line thoughts about the oral arguments. Leah, I know you had some thoughts on Justice Kagan in particular during this argument.

 

Leah Litman Yeah. So I thought Justice Kagan was really on fire during the argument. I wanted to highlight a few things that came up in her exchanges with Mr. Gretsky, the lawyer from Jones Day, who was representing the school district. One is where she asked him, you know, what exactly do you want the parents to do as Jasmine you were kind of alluding to. You know, she says, like, do you want to require them to negotiate harder? Like you think that’s going to work because they have so much bargaining power and leverage. So why don’t we play that clip here?

 

Clip Sturgis was not, for all we know, offering any of those things. But what’s what’s he supposed to do, Negotiate? I mean, as as in all settlement, negotiate better. Just pound his fist on the table with your legal rules such that Sturgis doesn’t have to offer any of those things because he can’t. He has two choices. He can either reject a good settlement, which is enabling him to receive educational services or give up on the potential, which this statute clearly gives him, of getting compensatory damages as well under the ADA.

 

Kate Shaw Yeah. Jasmine, what did you think of that exchange?

 

Jasmine Harris For me, this was Justice Kagan’s drop the mic moment, right? More than 7 million students with disabilities receive special education services in the United States. The ability to negotiate is tempered by serious disparities in the dispute resolution process favoring school districts and wealthy families. And she got that. While the IDEA says that parents may be represented by counsel at dispute resolution. The reality is there’s no civil Gideon in these proceedings. And so, not surprisingly, wealthier families tend to hire counsel and leave many families to navigate this complicated process without a legal advocate. Also, a recent case filed against the Virginia Department of Education and the Fairfax County Public Schools in September alleges that over the past two decades, parents in Virginia have won less than 2% of the 1400 due process complaints files.

 

Kate Shaw Maybe they’re just not negotiating hard enough. Yeah, exactly.

 

Leah Litman They need to pound their fists on the table more. There was another moment where the lawyer for the school district just threw out this completely brazen claim, which was particularly brazen in the context of this case, where he maintained that, of course, school districts would always or almost always remediate a fake denial immediately. And just because this hasn’t been spelled out in the facts about this case just yet, the school district was actively lying to the parents about what was going on. They were telling the parents, Oh, we’re teaching him some secret alternative, but accepted widely alternative to sign language. But they were doing no such thing. And Justice Kagan is basically horrified when the lawyer makes this claim. So let’s play that clip here.

 

Clip The other point that I’ll make as a practical matter, though, and I think it’s. Also true in this case, although these facts haven’t been developed because the case hasn’t been litigated, school districts have an interest in. Starting to provide the faith as soon as they are aware and as soon as their lawyers make their aware, make them aware that there has been some deficiency. It’s not in a school district’s interest to say we’re going to hold the the faith. Parents also have an interest in that. And that suggests why and you’re sort of the sky is falling isn’t going to happen because of course, parents are not going to bypass the process that gives them most speedily, most inexpensively, the opportunity to get the education fixed. So, yes, they’re going to go and and try to get that. But at at you know, at the same time, they may also want, you know, I’m entitled under the ADA for damages. Justice Kagan I don’t know that. As a practical matter, that that view of how parents will operate is always going to be true. Well, having spoken, though, that your view of how school districts are going to operate is always going to be true as between the two. It strikes me that actually it’s the parents that have the greater incentive to get the education fixed for their child. I think that sometimes there’s a litigation being run by a lot of rapacious lawyers. You know, this is litigation being run by parents who are trying to do right by their kids.

 

Kate Shaw So I think we’re all in agreement that Justice Kagan really gets it right. And so for an illustration of a justice sort of doing the polar opposite during the oral argument, let’s play a clip from Justice Alito.

 

Clip When you have a situation like this, the result, the nature of the settlement could reflect a strategic choice on the part of both parties. It could also reflect bad lawyering on the part of one or both parties. Right. If it’s the latter, what why does this case make that much difference?

 

Kate Shaw What difference does it really make? That’s sort of the bottom line for Justice Alito. But maybe to pivot back to another justice who this is, you know, sort of more kind of fun exchange, not really going to the substantive questions in the case. But I did want to play it because it was Justice Jackson. And it brought to my mind a wonderful piece that our co-host Melissa wrote in The New York Times about Justice Jackson as a mother and about the kind of relative under emphasis on Justice Jackson as a mother, as compared especially to all of the fixation on Justice Barrett as a mother during her confirmation process. And it was a nice moment. So maybe let’s play that clip here.

 

Clip So just going back to what Justice Gorsuch just explored with you, I guess I’m wondering why the word seeking in the statute doesn’t undermine your view. I mean, you suggest that you, you know, come to the hearing officer and you get what you get and you don’t get upset and you don’t get to choose. That’s what my daughter sometimes said.

 

Kate Shaw My kids and I also deployed. I get what you get and you don’t get a set rubric a lot. And so I appreciated it from the bench. Jasmine, any bottom line takeaways you wanted to sort of highlight?

 

Jasmine Harris You mean besides fangirling Justice Kagan?

 

Leah Litman Yeah, that’s a good one.

 

Jasmine Harris Yes. Okay. So this is the second time in the last five ish years that the court has asked or been asked to wrestle with the relationship between the Americans with Disabilities Act and the Individuals with Disabilities Education Act around exhaustion and remedies. The last time was in 2017 with Frye versus Napoleon Community schools. The court’s question seemed to signal support for the petitioners arguments, with the exception of Justice Gorsuch, who appeared to be stuck on Frye, a case that rather explicitly did not address the issue before the court. So prediction a reversal of the Sixth Circuit decision, which clears the way for Perez to proceed on his ADA claim for damages. We’ll see how we get there. Will the court keep the interpretation of 1415 narrow and point to Miguel’s case as an example of circumstances when courts should excuse exhaustion, or will it take the opportunity to discuss futility and exhaustion more broadly and reinforce that this is a malleable concept? The scope of the decision matters not only for how parents resolve disputes with school districts, but also whether parents will be forced through procedural designs to give up rights under other disability laws to get what their children need. The much needed services more quickly when every minute counts for their education.

 

Leah Litman I’m glad you brought up Frye and how it explicitly did not address or resolve the issue in this case, because there were moments in the oral argument where the lawyer for the school district kept saying, Well, Frye Frye Frye means, you know, I win. And Justice Kagan, the author of Frye, actually jumped back in to the oral argument. Q After the Série autumn format, after Justice Jackson finished questioning to explicitly get the lawyer to concede. When pressed that, of course, Frye did not resolve the issue in their favor. So I appreciated that.

 

Kate Shaw Jasmin, thank you so much for that really illuminating breakdown of the argument in the stakes issue in this case. We will see where it comes down. But thanks so much for being with us and Strict Scrutiny.

 

Jasmine Harris Thanks so much for having me.

 

Leah Litman [AD]

 

Kate Shaw Everyone’s been very patient. We’re talking about the Dobbs investigation, obviously. Okay, So we are now going to turn to some post Dobbs developments both in the state courts and in the executive branch. This episode, we should say, will be released the day after the 50th anniversary of Roe versus Wade. The court, of course, overruled Roe in. DOBBS And I guess this live show is what passes for commemorating Roe and Roe’s 50th anniversary these days. But before we proceed to that with our next guest, Rachel Rebouche from Temple. We have an important announcement to make.

 

Leah Litman The Supreme Court has concluded its extremely rigorous and extremely thorough investigation into the leak of Justice Alito’s draft opinion eviscerating women’s equal citizenship.

 

Kate Shaw So, yes, we are now turning to the courts legitimately. Lowell Report. I mean, the topic is serious. The report is hilarious. Announcing the results or lack thereof, of its investigation into the leak of the Dobbs Draft opinion. So on Thursday afternoon, we received a statement from the court together with the actual report of the marshal of the court, and also, weirdly, a letter of recommendation from Michael Chertoff. We’ll explain. But it’s definitely worth reading all of this in full, possibly with a slow Virginie fizz. But we wanted to highlight a few things about it. First, we got much more detail regarding what the investigation looked like. So the report indicated that the investigation involved interviewing 97 employees from the language of the report, that 97 definitely did not include the spouses of the justices. The report doesn’t actually say explicitly whether the justices themselves were interviewed, although I think we both read it to say they weren’t. The report says that the investigators spoke to temporary employees, by which they mean law clerks and then also permanent employees of the court. And that’s a phrase the court usually uses to describe people who work inside the building for the justices or for the institution. But other than the justices, there’s also kind of reference to employees as people in addition to the justices who have access to draft opinions. So there’s lots of circumstantial evidence that I think makes it pretty clear they did not interview the justices. The investigation did definitely involve looking at people’s emails, phones and what kind of digital records of who printed things. But it turns out that the courts, I.T. and printer and many other internal systems are kind of forgot to write. It’s a technical term. Like the investigators tried to check the printers for evidence of what was printed on different devices when. But the printers turn out to be have been inadvertently not networked or some of them only stored the last 60 jobs. So they actually didn’t get any useful information from their forensic examination of the printers.

 

Leah Litman If the printers don’t fit, you must acquit. They also couldn’t tell whether anyone put a USB drive onto the device and downloaded the opinion onto there and walked out of the building. On the investigation indicated there were undisclosed recommendations for how the court could improve document security that we won’t be told about. I wonder if this is partially what is slowing down opinions right now since we haven’t gotten any just yet.

 

Kate Shaw Right. And as we remarked last week, we think this is the longest time the court has gone in the modern era between starting the term, which is in October and releasing his first opinion, which has still not happened on the interviews in terms of what they consisted of. The report says that at the conclusion of the initial interviews, each employee was asked to sign an affidavit under penalty of perjury, affirming that he or she did not disclose the jobs draft opinion. Each employee was then asked to swear to the truth of the statements in the affidavit before a notary public. I have some thoughts on the presence of the notary that I will return to, so put a pin in that.

 

Leah Litman We also found out that the marshals looked at Clark’s social media profiles. And I want to know whether in the course of this investigation, they uncovered Sam Alito’s burner Twitter account or whether they determined he’s actually on Parler or Truth Social, because we have already determined, after our own rigorous and thorough investigation, which Michael Chertoff signed off on, that I definitely hatreds the entire Internet. But, you know, as you may remember, there was this rampant doxing of progressive law clerks, and the court concluded that there was nothing to substantiate the social media accusations. You know, surprise, surprise.

 

Kate Shaw The report does say that the court couldn’t rule out an accidental leak of some sort, like where the document was left in public or in some sort of public space or accessible space accidentally. So that’s possible. We also found out that the investigators, you know, learned that court employees do talk to their spouses about the court’s work, which sort of makes you wonder actually, you know, specifically the report, you know, indicated that some employees revealed to their spouses or partners that were coming. DOBBS And the vote count in. DOBBS So we kind of know that.

 

Leah Litman So the report is really, truly hilarious. And we’re just going to rattle off some of the most hilarious things about it before we go on to the substantive portion of this segment. One of the more amusing portions for me is just how messy it is. So it feigns transparency while being not transparent. So take the opening of the court statement, which almost seems to insinuate that the court believes that the person who leaked the draft opinion did so for political reasons, as in disagreement with the opinions of the lines I’m thinking of are quote, The leak was no mere misguided attempt to protest. It was a grave assault on the judicial process. And I wonder, is this sloppy drafting, you know, because the rest of the report says they can’t even rule out an unintentional leak, much less identify the actual person they think leaked it or do they think they know who it is? They have a hunch, but they can’t prove it. I mean, same SCOTUS, same. Many people are saying it’s Ginni in the dining room with her phone on a free tap. But there are passages of the report that do read as if the court has a hunch but can’t prove it. Like the passage, saying the court can’t identify a culprit by, quote, a preponderance of evidence or the one saying certain remaining aspects of the investigation might yield more pertinent information, in which case it seems like the opening might be unsubstantiated shade because the library is now open or we’re just like not letting evidentiary standards get in the way of blaming the libs. Just very unclear what is going on here. And on one level, it’s just not surprising from the court that like blatantly mischaracterized the facts and Kennedy versus Bremerton schools or Shinn versus Ramirez, that this would be their approach to this statement as well.

 

Kate Shaw Yeah. Okay. Another you know, we alluded to this already, but another hilarious and deeply strange aspect of this report was the fact that the court appears to have asked for and then received literally a note from Michael Chertoff saying, you guys did a good job on this investigation, can’t think of anything else to do.

 

Leah Litman And to be clear, Chertoff is a former third Circuit judge and a former secretary of Homeland security. And I read the report slash letter to suggest that the chief might have just asked Michael Chertoff to do this, like personally as a friend or favor a formal leak, like not some independent review, just, hey, buddy, it would be great for you to do me a solid here. And Michael Chertoff responded with, You’re doing amazing, sweetie. And like Kris Jenner did, the Dobbs investigation, as Melissa would say. And the report also says, you know, they wonder or have reason to believe that maybe an intentional leak could have been a federal crime. If that’s right. I wonder, like, did you consider bringing in the FBI, like the actual federal law enforcement agency, or were they actually not totally sure they wanted to get to the bottom of this or, you know, again, as Kris Jenner would also say, like this is a case for the FBI.

 

Kate Shaw I’m just gonna laugh like I got that reference. I do know who Kris Jenner is, but I definitely did realize she never talked about the FBI. Um.

 

Leah Litman What about Ben Wal Blanc?

 

Kate Shaw Got nothing.

 

Leah Litman I don’t know her. That was a Mariah Carey reference.

 

Kate Shaw I do know Mariah Carey. Sorry. Melissa will be back next week, I promise. Okay. So a couple more highlights. So one is one part of the investigation does seem to involve the investigators checking to see if anyone Googled anything along the lines of is it totally legal and totally cool to leak the draft opinion, overruling Roe to Politico? And, you know, strikingly, this did not yield any leads. So there’s that one more thing to highlight it. As we mentioned, the investigators interviewed 97 employees at the conclusion and, you know, this is pretty serious. They made each person sign an affidavit saying essentially, I didn’t leak the job’s opinion. And at this point, a few folks admittedly did. This is where, like the spouse, the spouses came out. I think a few folks like went to sign a number like but I didn’t leak it to Josh Gerstein, a political but I did tell my partner. So those folks evidently like put an asterisk on their affidavit and were like, but they did tell someone just not Politico. But but either way, this is serious, right? Making people sign affidavits and then, you know, they apparently had to do this, not just signing affidavits, but do it in the presence of a notary public. And the report details all this and then says if the investigators later determined that any person lied to investigators, those people could be subject to prosecution for a false statement in violation of 18 U.S.C. Section 1001, which is like the general federal statute that criminalizes lying to federal officials or, you know, in the course of a federal proceeding, why pretrial was it necessary to bring in a notary and to include this fact in the report, like making employees sign affidavits is serious. It is not any more serious for the presence of a notary. This is the Supreme Court. And it’s not clear to me why they decided they needed the presence of a notary to make things look really official and very legal. But they seem to have done that. And I think unless I’m missing something, the presence of the notary is completely meaningless. But meant to look serious. And to my mind, it just sort of feels like a metaphor for the entire investigation.

 

Leah Litman Yeah, there’s no real process, no real investigation. It’s just vibes. Our producer, Melody Rowell, is actually a notary, so I would like to volunteer her services to go to the Supreme Court and take a statement from someone named Sam, someone named Clarence, someone named Ginny and someone named Martha, and just swear in front of her that they didn’t leak the opinion, and then she’ll put her official notary public stamp on it. So, you know they’ll mean it. And the presence of the notary public, as you were saying, just feels like a performative display of superficial rigor or transparency when the reality is anything but. Like this entire investigation and report seems to have been done with the rigor of the court’s shadow docket orders and what passes for legal reasoning and analysis of the facts at One First Street these days. It’s like the court says, Trust us, it’s all good, nothing to see here. But then you, like, peek beneath the curtain and they’re all just doing spirit fingers. The deep cut Now reference for you, and I can’t honestly tell if they think they actually did a good job on the investigation and they’re trying to take a victory lap or whether they think they can fool us all into believing this was a real investigation by saying we had a notary. You know, one postscript on this entire story is that after the court released the report, Josh Gerstein, one of the reporters at Politico who broke the draft opinion, wrote a story that said the court is unable to identify the leaker and then also wrote a story that was like five takeaways from the court’s report. And this felt like a real flex to me, like you guys didn’t figure it out. Nanny, Nanny, Boo Boo, I got you good. And I appreciated it.

 

Kate Shaw It was an understated flex which is was what made, what made it so genius. So was this the final report? Was this an interim report? Like many things about the report, I don’t know. You could read it a few different ways. This may be the final word on the matter. I suspect it will be. But it’s also not impossible that this crackerjack team is going to continue to track down leads and that. We’ll be back with more news on the top.

 

Leah Litman Melody is on the Case.

 

Kate Shaw Right.

 

Leah Litman After we recorded our episode at Penn Carey Law, the Supreme Court marshal, released a statement in response to many people’s quite reasonable questions about whether the justices or their better halves were part of the investigation into the Dobbs Leak. Thanks, but no thanks, Gail. On the timing, I’m going to quote the Marshall statement and then just briefly note what the statement says and what it doesn’t say. The marshal says, quote, I spoke with each of the justices several on multiple occasions. The justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the justices or their spouses. On this basis, I did not believe that it was necessary to ask the justices to sign a sworn affidavit, end quote. Okay. So the marshal spoke to the justices. It’s unclear if this means she interviewed them. Like what exactly is this, quote, iterative process you describe? You keeping them abreast of what you’re asking everyone else, then providing insight or input into that? I don’t know. And note that the Marshall required all other employees to sign affidavits, even though there was not a reason to suspect any of them individually. Those employees were also asked to turn over their devices and that expedition revealed squat. So the Marshall Statement kind of continues the trend we spoke about at the live show, namely transparency. Without transparency, we don’t know what the Marshall spoke to the justices about. Was it about their favorite drink? We don’t know what questions she asked them or was it again, like what time of day they get up? And when the justices answered whatever she asked, they’re also wasn’t a notary public there with a stamp. And so how can we trust anything they say? We don’t even know. If the marshal looked at any of the justices devices. It was always insane to ask the marshal who works for the court, to lead an investigation that would include the justices, people who seem like they are or could be the Marshall’s boss. Everything we had learned before this latest statement suggested this Dobbs leak investigation was like a cosplay of an actual investigation. And this latest statement only seems to further underscore that.

 

Kate Shaw Okay, so to continue with Dobbs and now for a more substantive look at some of the consequences of the opinion for the rest of the segment, we are thrilled to be joined by Dean Rachel Rebouche from Temple Law School. Dean Rebouche is a leading scholar of reproductive rights and justice and has been doing just critical work on the post jobs, legal and political landscape. So Rachel, welcome to the podcast.

 

Rachel Rebouche Thank you for having me.

 

Kate Shaw Maybe let’s start with some developments inside the executive branch and then we’ll turn to some sort of state court developments of state courts, I guess, and federal court developments. At the beginning of January, the FDA issued new guidance on medication abortion. So can you start by just telling us, you know, people may not have been totally aware of it, like it’s been busy the holidays and now the new semester is like, what was that guidance and what is its legal and practical significance?

 

Rachel Rebouche So it’s been quite a time. There have been two big things that have happened that the FDA has changed about medication abortion. Which is a two drug regimen that you take between ten and 12 weeks at pregnancy before ten and 12 weeks. It’s approved by the FDA at ten weeks, but often prescribed off label through 12. So the first big announcement and both of these were announced in December 2021. The first big change is that the FDA changed a rule that required people to pick up medication abortion at a health care facility. Now, this has actually been in effect continuously since April 2021, when the FDA lifted this rule as part of a pandemic prevention of provider patient contact, one of a measure of that sort. But this rule really is something significant. So mifepristone, the first drug and a medication abortion, it was the only drug of 20,000 drugs that you had to pick up at a health care facility, usually a clinic or hospital or medical office. But you could take it home. You could take anywhere without provider supervision. And that rule, when it was lifted, allowed medication, abortion to be mailed, which has resulted in the proliferation of virtual clinics. So starting out in July 2020 through now, there is over a dozen virtual clinics that prescribe medication, abortion through online counseling, and then mail it to people in places where it’s legal. And this is really changing the nature of early abortion care. So that’s been a pretty big change, that change. The FDA reiterated this last couple of weeks been it made a second big announcement, also something that it said it would do in December 2021, but it announced pharmacy certification. So for the first time, retail pharmacies, pharmacies of any kind can seek certification through the FDA to dispense medication abortion. So Walgreens, CVS, they’ve indicated that they will seek certification. Honeybee Pharmacy is an online pharmacy that’s already received certification. And this is a process by which pharmacies will attest to having a pharmacist that will dispense medication. Abortion will track shipments, comply with other rules and regulations set forth by the FDA. So these are really two two big two big events. I think the in-person pickup being suspended is the is the the main show. And I think we have to wait and see what happens with pharmacy certification.

 

Leah Litman So at the same time that this is happening, there is litigation ongoing in three yeses. You only need one. What state, Texas, about the FDA’s decision to approve, Never postponed at all. So the lawsuit was filed by the Alliance Defending Freedom. The judge on the case is Trump appointee, most powerful man in the United States, Matthew Kazmierczak. Prior to being appointed by former President Trump in 2017, Kazmierczak was deputy general counsel at the First Liberty Institute, a Christian legal advocacy group. So the Biden administration filed their response this week, and it doesn’t pull punches. It says, you know, these plaintiffs are asking Cas Merrick to effectively block the FDA’s approval immediately. And the administration seems quite concerned. So from their brief, they say, quote, The public interest would be dramatically harmed by effectively withdrawing from the marketplace a safe and effective drug that has lawfully been on the market for 22 years. Rachel, like, how are you feeling about where this lawsuit is headed? Should we be screaming at the top of our lungs about what Kazmierczak is about to do and, you know, potentially make it impossible to access medication abortion?

 

Kate Shaw Just to be clear? Right. This isn’t even just a challenge to the recent developments that Rachel was talking about. This is that it’s approved at all, I think, for this. So this is a much more existential challenge, really, I think, to the availability of medication abortion at all. So sorry, but just with that clarification. Yeah. Like how worried should we be?

 

Rachel Rebouche No, absolutely. I mean, if it were before another court, you would look at the arguments being made by the alliance and think what one argument is. 22 years ago when you approved before Chris Stone in 2000, you were wrong. And even though we’ve challenged that decision multiple times, you’re still wrong. So please district court revoke that approval and tell the FDA they acted hastily in approving medication abortion in 2000, that they were outside the scope of their power, which if you just take a quick look at the history, the FDA denied medication abortion approval twice and then approved it. It was not, I would say, a fast process. I don’t think anyone looks at that history and says, you know, the FDA really rushed through medication, abortion through the approval process. So, you know, they’re really good. In 2008, there’s over a 50 page report by the Government Accountability Office that went into this entire issue and found that the FDA acted appropriately and within the scope of its power. Nonetheless, the alliance has taken this case and among other claims, that mifepristone, the first drug of medication, abortion, is unsafe, that it’s too risky. That at different points in this 20 year period, claims against medication abortions approval should have succeeded. You know, the Biden administration’s brief is really strong in pointing out that, like time has passed and you missed your window of opportunity to challenge this and medication. Abortion is safer than penicillin, but never mind. And I would not be worried about these arguments, but for where the case is, that this this is a court that has I can we say some bias maybe.

 

Leah Litman Yeah. So just to give you a sense of some of Judge Kaczmarek’s recent work. This is a judge who in the last few months has issued opinions invalidating the Title Ten program with respect to funding contraception and has once again for a second time invalidated President Biden’s attempt to end the Trump administration’s Remain in Mexico policy. You know, Title Ten is a federal program that provides grants for family planning services, including for adolescents. And Judge Kaczmarek said they cannot provide grants to health care providers that don’t require parental consent before a minor can maintain, you know, Title ten funded medical care, including contraception. And so when the men’s said birth control wasn’t next, I guess they didn’t mean for you to take that literally. You know, I’ve talked about Judge Reed O’Connor’s opinions. Judge Kaczmarek’s opinions are like Justice Alito’s drunk taxi with the self-satisfaction of Neil Gorsuch. You know, these opinions that two I just mentioned cite. The opinion in Bostock, by which I mean Justice Alito’s dissent in Bostock v opinion in Lawrence versus Texas, by which I mean Justice Scalia’s dissent in Lawrence versus Texas and The Hobbit.

 

Rachel Rebouche Well, just to contrast the two, you know, the FDA’s action this month and what could happen on the heels of an injunction in this case, you know, the FDA is permitting males medication abortion, but we know that in a third of the country that’s not permitted because all abortion is banned from the earliest stages of pregnancy. So this is an important decision, but it’s going to reach states that permit abortion and permit mailed medication, abortion. So that’s a state that doesn’t have another law that requires some in-person component to the abortion process versus this case. If this court enjoined the FDA’s approval of mifepristone for medication abortion. It’s not available anywhere. It becomes it it’s off the market until the FDA approves it again or that a decision is stayed or reversed. And that is really significant. All those the virtual clinics I talked about, they stop until that that that, of course, is reversed. I have to give a quick shout out to Greer Donnelly and David Cohen, because we’ve been writing about this issue in a subtly named paper called Abortion Pills. Yeah, I’ll tell you what it’s about at the break, But yeah, it’s significant.

 

Kate Shaw But surely if something like that were to happen in the District Court, we can be confident that the Fifth Circuit will put it on hold. And at least the short term. Right.

 

Leah Litman You are daring me to start talking about this circuit’s habeas case, and I can’t do that because I would need, like, 17 hours to do so. But that court has just gone totally bonkers, like, even more bonkers.

 

Kate Shaw So that’s grim. I don’t have a good pivot, but I will ask since we’re I mean, I guess that there are many fronts in The Post. DOBBS sort of battles. And so there’s really important litigation happening in federal district court right now. You know, extremely frightening prospects there. But, you know, it’s at the moment like, you know, it’s just pending lawsuit. There’s things happening in the States and also happening in other parts of the executive branch. So maybe briefly, Rachel, can I just ask about another thing that could have potentially flown under the radar for people, which is I think it was in late December, the Office of Legal Counsel, sort of the know real arbiter of the meaning of statutes and the Constitution inside the executive branch, inside DOJ wrote an interesting opinion about the post office and medication abortion. Can you just tell us a little bit about that?

 

Rachel Rebouche Sure. And, you know, and I think it is in a very important opinion because it concerns the Comstock Act from 1873. This is an act that banned contraceptives being mailed, abortion, anything that assist with abortion being mailed. And it is in disuse. You might think it was in disuse because of Roe v Wade, but it was actually in disuse because of court judgments narrowing the application of that law. It was in effect, you know, it had a life for several decades until truly these court backlash and public backlash really defanged the Comstock Act. But it is back. The Comstock Act is back because in the litigation we just described in Texas, one of the arguments made by the alliance is that this federal act should be applied and should ban all mailing of abortion pills throughout the country. So let’s go back to 1873 and apply the Comstock Act and the LLC in what I think is an incredibly important opinion, advises the Post Office, the Postal Service, about how the Comstock Act should apply. It interprets the contract and decides that the circuit court judgments that earlier in the 1900s interpreted the Act as only applying to mailed illegal abortion. You have to have the intent to procure or help procure an illegal abortion. So mailing pills into states where abortion is legal, that’s a no brainer. The act doesn’t apply because abortion is legal there. This is the same interpretation the act was given, though it hasn’t been applied or interpreted more moderately in a court after Roe v Wade was decided. The old saying also concludes that even in states that ban abortion, the act doesn’t necessarily apply or probably apply because they’re all numbered. There are a number of reasons why you would mail medication abortion into ban states that have nothing to do with illegal purposes miscarriage management, abortion under the statutes, exceptions for health or life, whatever the relevant exceptions might be, they list the myriad ways in which medication, abortion pills, even in states that ban it, even in Texas, would be used for lawful purposes. So discerning there is a specific illegal purpose for mailing would be almost impossible to do. So I think it’s a really important statement byOLC.

 

Leah Litman I mean, Dobbs took us back to 1868. So what’s the big deal about going back to 1873? Sam seems totally fine with me. So we wanted to highlight one last thing, which is a development out of Wisconsin, which as we’ve talked about, and it’s worth reiterating once more, there is a hugely important state Supreme Court race in Wisconsin. In April this past week, state Democrats in Wisconsin tried to get a statewide ballot referendum on abortion. You know, just advisory, but still important on the ballot, too. Not surprisingly, the Republican controlled legislature ended that effort in Wisconsin. Quote, Direct democracy at the state level has to go through the legislature first. And it is curious that for all jobs, talk about returning the abortion question to the people, Republican leaders in the state seem very eager to keep this question from the people at all costs.

 

Kate Shaw I mean, what we all obviously saw in November, how having a ballot question about reproductive justice and abortion on the ballot in his home state of Michigan seemed to have a really significant effect, both in the success of that initiative and, you know, on the entire ticket, in which Democrats obviously did extremely well in that race. It does seem like the Democrats in neighboring Wisconsin have been taking notes and I guess the Republicans in Wisconsin as well. But we should say that even though abortion will not be on the state ballot in April in Wisconsin, it is still possible to get local advisory referenda on the ballot in Wisconsin, you know, and in other states without the legislature’s approval. And, you know, that has happened in the past on issues like gerrymandering and marijuana. But local organizers, I think, do need to move quickly because that window is closing. But as Leah mentioned, this race is just like incredibly important. We’re going to keep our eye on it. Rachel, thank you so much for joining us for this segment. It was great to have you on the podcast.

 

Rachel Rebouche Thank you so much.

 

Leah Litman So that is all we have time for today. Thank you so much to Penn Carey Law, in particular the ACS. And If One How chapters for having us out to Jasmine and Rachel for joining us and being such wonderful guests and sharing their expertise. 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, Audio Engineering by Kyle Seglin. Music by Eddie Cooper with production support from Ashley Mizuho, Michael Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth.

 

Kate Shaw Thanks so much, everybody.