The Originalist Case for Terrorizing Women | Crooked Media
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February 13, 2023
Strict Scrutiny
The Originalist Case for Terrorizing Women

In This Episode

Leah and Kate talk to Jessica Valenti, writer of the Substack newsletter “Abortion, Every Day,” which documents the rapidly changing landscape of abortion rights in the U.S. after Dobbs. Plus, they highlight a federal court opinion that would allow people facing domestic violence orders to possess guns, and President Biden’s (brief) State of the Union comment about vetoing any national abortion ban legislation.






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.


Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your host today. I’m Leah Litman.


Kate Shaw And I’m Kate Shaw. And we are joined today by special guest Jessica Valenti, who through her substack, which is called Abortion every Day, has been providing an indispensable and often devastating chronicle of what the end of legal abortion in much of the country means in really concrete on the ground terms. So, Jessica, we are so happy to have you with us today. Welcome to Strict Scrutiny.


Jessica Valenti Thank you for having me.


Leah Litman So, Jessica, you’ve been a feminist writer for a long time. You co-founded and for many years wrote for the blog Feminist. You’ve authored or coauthored seven books, including The Purity Myth and Full Frontal Feminism. You’ve written for several publications over the years. When and why did you decide to turn your attention to full time chronicling abortion access after the court’s decision?


Jessica Valenti You know, it sort of happened out of necessity, I think. I was writing because of everything that was going on. I was writing about abortion so much. And obviously, like everyone else, I was so upset and so distressed and I was trying to just like, keep track of everything that was going on. And I just found that I was writing constantly and I was publishing every day. And it occurred to me like, Well, this is already happening. Like, I’m already publishing every day. I’m already writing about this every day because there is so much stuff. And so that’s why I decided to turn it into like a formalized daily newsletter. And to be honest, there was a point like when I first started, it was like, Well, can this is this going to keep up? Am I really going to be able to do this every day? Is there going to be enough news? Is there going to be enough stuff to get into? And it’s just been more than I can handle, right? Like, I’m writing every day and I’m still not getting everything. And so it just felt necessary, I think. And a lot of it was for my own mental health that, you know, like it you feel so inundated by everything. You feel like you you can’t possibly keep up and just feeling like I could record something and bear witness to some of this, like horrible stuff that was happening made me feel a little bit more sane.


Leah Litman It also, I feel like a counter is something that Rebecca Traister mentioned on our podcast this summer when we discussed the legal landscape of jobs, which is at some point there was a concern that after one or two of the stories about the consequences of jobs, there would be a sense among, you know, legacy media that that story has already been done and we need to move on to the next story or the news story when this story is still happening and unfolding.


Jessica Valenti Yeah, there’s a very I think there’s a very dehumanizing effect that happens, unfortunately, with media, right, where it’s like, well, we’ve already told the story of like this woman who ended up in the hospital and we’ve already told the story of this woman who was having a miscarriage, who couldn’t get the treatment that she wants. Like, what makes this different? And that’s not okay. Right? Like, these are individual people who who are suffering. And I think that that is one of the main things that has been lost in the mainstream coverage in the way that we we talk about what’s happened. There is so much suffering that is happening on a day to day basis that we’re not talking about or acknowledging. And it doesn’t just have to be. And this is another reason why I started the newsletter. It doesn’t just have to be that women are ending up in the hospital or that a woman might die. Right. It’s all of this unnecessary suffering that these laws are causing that we just need to talk about. And it takes center stage.


Kate Shaw Some of what you just said kind of made this clear. But in terms of, you know, the format of the newsletter and the contents of the newsletter, do you want to talk a little bit about just like what it typically looks like? So I’m a subscriber. We will give several points to the course of the episode. All of our listeners should be as well. But for folks who are not yet, what does it typically look like? I actually think you’re doing an audio version now, too. Is that right? And I listen to it yet, but so just tell us a little bit about that and then I think we want to dive into how you are even getting these stories, because that seems really important as well. But first, you know, what does it look like?


Jessica Valenti Yeah, the format of the newsletter is they try to break it down by what’s happening by state with legislation, with court cases, because so many of these stories are really changing day to day. Right. Like abortion might be legal in a state one day and then a legal the next day. It might be illegal and then the ban is blocked. And so part of it is just like, okay, we need to be really on top of what exactly is happening with all of these cases. And then I’m also trying to keep track of the national stories and the trends. And a big part of something that’s been happening with the newsletter is keeping track of anti-choice strategy that I think is really going. Unnoticed. Right. Or or not talked about enough in depth. And one of the benefits of writing about this stuff every day and just reading for hours about what’s going on is that you can start to see those three lines really, really easily and you can start to see what exactly they’re going for. So like a couple of months ago, I wrote about this like random quote from the students Students for Life president who said something to the effect of like, we would never want to ban travel for women, right? Like, oh, like maybe we’ll well, you know, talk about minors and, you know, not letting minors out of state, possibly with parental permission. And the way she said it, I was like, oh, this is this is going to be a thing. And then sure enough, and they were Students for Life is an organization that also sort of does draft legislation. Sure enough, yesterday Idaho announced this bill that they’re going to label anyone who takes a teenager a minor out of state for abortion care as a human trafficker. Right. And so this is sort of like part of their strategy. They start with minors and then it’s going to be parental permission that you’re going to need both parents permission. Then you’re going to need both parents written permission, notice, write, like you can just start to see what is happening. And so that’s the other thing I’ve been trying to pay really, really close attention to, and especially because I think for a long time those of us on the left looked at a lot of these organizations and a lot of these people as kooks and sort of ridiculous, right, and sort of silly. And in a lot of ways they are hurt, but they are also very well funded and very dangerous and very powerful. And so I wanted to make sure that there was a space to really talk about who they are and what they’re doing and what we need to be paying attention to.


Leah Litman And I just wanted to emphasize and basically repeat and extend something you just said, which is oftentimes this strategy starts with what sounds like or looks like an exception. Right. Like a special regulation for minors. And then it somehow blossoms into everyone. Like, obviously, this is partially the story of abortion restrictions where, you know, the court reaffirmed the right to abortion while also upholding parental consent requirements. And then you had then Judge Brett Kavanaugh, you know, upholding the Trump administration policy of basically physically locking in an undocumented minor woman and to prevent her from getting an abortion. And we see the same playbook playing out now with respect to trans rights, You know, where it starts out with, oh, well, we just want to restrict gender affirming therapy for minors. And then now all of a sudden people are like, no, really for everyone. And something similar is happening with respect to contraception, where you had Judge Kazmir, you know, partially invalidating the Title ten family planning program on the ground, that it allow doctors to provide contraception to minors without their parent’s consent. And so you see this same playbook which had success in the abortion context and is trying to be repeated in the abortion context in the post ops landscape as well.


Jessica Valenti Right. It’s a chipping away process. Right. And that’s part of the reason that when when feminists said they’re going to overturn Roe, you’re crazy. You’re being hysterical. That’s not going to happen. When you say like they’re coming after contraception, I think people are imagining that. We’re saying they’re going to pass a law tomorrow that says gun control is a legal right. They’re going to pass a law tomorrow that says women can’t leave the state. They’re going to have like people set up at the border. No, of course not. Like, no one is saying that it is a slow, yearslong chipping away process. It’s death by a thousand cuts. And if if you create enough restrictions and enough hurdles where no one can actually access the care that is supposedly legal, then they’ve done their job right. They don’t need to pass some sort of sweeping law that makes everyone pissed off.


Kate Shaw Right. Or at the end point, this sort of infrastructure has eroded. And maybe I think this is part of the strategy. The public has become somewhat inured to the restrictions that have been imposed. Then the gap between like, you know, full access and whatever they’re going to do to completely remove it has been so narrow that it doesn’t feel nearly as dramatic as it would if we were doing a ban tomorrow or something like that. And in some ways, we will come back to the State of the Union address. I think I’ll have thoughts on that. But it was part of the reason I thought it was so frustrating that virtually the only thing that President Biden said was like, I will veto a national abortion ban. It’s like that is literally the floor. That is the subbasement. That is not. Yeah,.


Jessica Valenti Thanks.


Kate Shaw But there are many, many things between here and there that we need to be focused on. And I think it’s so important that even early in the conversation we were talking about contraception as well as abortion because the two are so closely connected. So how are you getting the stories that you are conveying via the newsletter? So, you know, obviously this is a moment that’s very difficult for local journalism. I know it’s you know, obviously you what you are doing is taking and amplifying what a lot of local journalists are doing. Is that sort of what you’re doing just reading local papers? Everywhere. And how is local journalism in this uniquely underfunded, under-resourced moment, sort of even doing that, kind of bringing these stories, which some people want to tell and some people don’t? I mean, I don’t think some of these stories are not being told because people are making the choice not to tell them. But some are just probably not being told because the institutions that would help tell the stories are simply not there. So so how are you getting the stories you’re telling?


Jessica Valenti So I am hopelessly and relentlessly online and looking at local news all day. And, you know, local news has been doing a great job. And I think public media in particular has been doing really fantastic work locally. But there, of course, are gaps and it can be a mixed bag. And I think that one of the things that makes it easier for me to to pick out a certain thing and a local story that I know is the most important is that I’ve been doing this for a long time. I have a lot of context, right, for abortion rights. And so someone who isn’t necessarily even if they’re a fantastic reporter or someone who doesn’t necessarily have a lot of experience with covering abortion isn’t going to recognize that same thing. But yeah, I’m relying on local news and look at student newspapers, at college newspapers. I’m looking at a lot of conservative blogs, a lot of like blogs for crisis pregnancy centers. Like I’m just trying to know every single place I can. And often, like, that is where I will find the bigger stories. Like when I, I reported about how the Alabama attorney general, you know, in Alabama, they have this law that says you can’t prosecute women for abortions. Right. But someone from his office gave like a little quote to some random conservative blog saying, oh, well, you know what? Actually, even if we can’t prosecute women under the abortion ban, we can use the Chemical Endangerment Act. If they take abortion medication and we can arrest them using that. And that ended up becoming like a huge national story. So I think it is really like trying to find those tiny little things that can get missed really easily. And then the other reason finding stories, honestly, is like on tik-tok and on social media, right? Like, I met a woman on Tik Tok from Georgia whose insurance company refused to cover her IUD because they said it was a sanctity of life issue. A woman in Tennessee who’s state representative told her that they could arrest IVF doctors. And so the thing is, a lot of people are having these conversations online and a lot of individual women are wanting to share their stories. And that’s where they are. Right. Like, they’re making these videos and they’re just like reaching out on TikTok.


Leah Litman And just to put in another interim plug for Jessica’s newsletter and Substack like it was really your substack that then garnered national attention for the story about the Alabama Attorney General’s office. Right? Basically threatening to prosecute people who took the medication. Abortion, which is the most common method of abortion. You know, in the United States.


Jessica Valenti It’s over 50%. And because of that attention, he had to come out publicly and reverse that decision. And that’s the thing. Like so much of the stuff that they’re trying to do is behind closed doors. And they really are hoping that people are not going to notice or not care or that if they target the most marginalized groups first, which is what they’ve already been doing right in Alabama, they have already put pregnant women in jail using the chemical endangerment law. But because those are mostly black women, low income women, they are hoping that no one will will really give a shit. And for the most part, like that has been the case in the past. Luckily, that is changing, but they are really, really hoping that people are not going to notice what they are doing.


Leah Litman So maybe we can talk about one story, one other specific story, which helps make concrete what it means for states to say, you know, we are banning abortion, but we’ll make exceptions to save the life and sometimes to preserve the health of the pregnant person. The formulations often vary. And that’s a story of a man does a roski, a Texas woman who nearly died after being denied abortion care. She came forward with a truly horrifying story and ended up being invited to the State of the Union. As Kate already alluded to. We’re probably going to talk a bit later about some of the missed opportunities at the State of the Union. But one to note now is the missed opportunity to use, you know, the president’s bully pulpit to highlight a story like hers. And you, Jessica, have covered her story. So since President Biden did, and maybe we can use our much smaller platform to try and do some of that. So can you tell us a little bit about what happened to her?


Jessica Valenti Sure. So this is a woman named Mendoza Rousey, who lives in Texas, who is from Austin, I believe. And she was pregnant. She had a wanted pregnancy and she was 18 weeks pregnant when her water broke. Way too early for her for your water to break. And so, of course, she went to the doctor. She was having all sorts of problems. I think they diagnosed her with an incompetent cervix. And essentially they told her, okay, you can wait and go into labor. Naturally, we can wait for the fetus’s heartbeat to stop and then we can give you care or you can be on death’s door. And and then, you know, we can give you emergency care. And that last thing is what happened. You know, she ended up in the ICU with sepsis. Amanda and her husband have talked about the story a lot. Her husband describes her as being, like, completely incoherent by the time that they were taking her to the ICU. Because if you are going into septic shock, obviously, like you’re a mess, you are dying quite literally. And so it was only at that point that they were able to legally end her pregnancy. And what’s been really frustrating, I think, about this has been many things frustrating about this story is that the anti-choice movement sort of responded in two ways. The first thing they said was, well, she’s alive, right? The laws worked. She’s alive. She didn’t die. But it’s there’s sort of this thing like, well, what are you complaining about? She’s here. And so, again, this comes back to this idea of, like, completely ignoring suffering. And I mean, actually, like she said something. There’s a quote from her somewhere, something to the effect of like losing my daughter was inevitable, but like, all of the suffering was not. And that was the thing. And then the second thing that the anti-choice movement is saying, and Susan Anthony, Pro-Life America, actually released a statement when they found out Amanda was going to be at the State of the Union, They said, well, no, actually, under Texas law, she absolutely qualified for an abortion, but they wouldn’t call it an abortion. Right? They don’t. They have like their own language around this. But that’s not an abortion. You know, that’s health care treatment. And she completely qualified. And this is just the fault of doctors who misunderstood the law. And this is another thing that I’ve been trying to cover a lot, is this has become their new go to line. Whenever someone comes out with a horror story, it’s doctors fault. It’s the hospital’s fault. They didn’t understand the law. And they’re doing this really deliberately because they know once the first reported death comes out, I feel pretty confident that someone has already died as a result of these laws. But once the first reported death comes out, they want to be able to have this track record of saying, look, we told you, we told you these doctors weren’t doing their jobs. And it’s so insidious and so awful. But that is what’s happening. But I am so grateful for Amanda and for and for people like her who are coming forward and sharing these stories, because that’s really heart. That’s a personal, terrible tragedy that people have to share with the world in order to what like have people see us as fully human, like. It really is like a humiliating process that we are asking women to go through. But I’m super grateful for the people who feel like they can come forward and most people don’t.


Kate Shaw I feel like Amanda’s story, you know, really illustrates just both how much space exist between language and maybe Susan Anthony’s interpretation, or at least spin on language that says, of course, abortions will be permitted in these medical emergency situations like this. And then the reality of trying to access care under those conditions. There’s also, I think, somewhere in Amanda stories, like people also criticized her for not just leaving the state to get care. And she’s like, I was literally going into septic shock. And I live hundreds of miles from, you know, inside a reproductive health care desert, like being in the car in the middle of a literal desert as opposed to like, a metaphorical desert and. Really going into full septic shock like I would have died. Same thing if I’m 30,000 feet in the sky because I’m flying somewhere like, no, that was never a realistic option. But I do think these kinds of expos, either she played this wrong, her her actions were wrong, or the doctors were at fault, are just so, like, insidious and cynical, as you just said. So maybe another place where I think you see these same dynamics play out is how, when it comes to laws that purport to have exceptions for rape in them, in some states, they you know, and so some states have these exceptions for rape. But how are the conditions that are attached to even qualifying for one of those exceptions being implemented kind of on the ground?


Jessica Valenti No one is getting an abortion under a rape and incest exception. It isn’t. It is not happening. Yeah, and that is very much by design. Right. All of these laws have various hurdles. You know, some of them put time limits like you have to you have to go get that abortion in the first, you know, eight weeks, which if you’re a victim who is coming to terms with something terrible that has happened is nearly impossible. All of them have reporting requirements for law enforcement. Again, once you have put that requirement in place, the vast majority of victims are not going to come forward because they don’t trust law enforcement. And then states like Tennessee, Tennessee’s rape exception has something in it that says not only do you need to report your rape to law enforcement, if we believe that your rape claim is false, you will go to prison for three years minimum, and you need to serve 100% of that time. And as we know, this idea of a false report, you can be accused and found of making a false report. If a cop doesn’t believe you, if you recant your story because your abuser is someone close to you and you’re afraid of them. And there’s lots of lots of reasons that states find women guilty of creating false reports. And so they put in all these hurdles so that essentially no one is able to actually use these exceptions. And then on top of that, because the penalties are so high for doctors and no one will give an abortion anyway. So there was a thing in Mississippi, a study in Mississippi, that showed there there wasn’t one single doctor in Mississippi who was willing to provide a rape victim with an abortion because the penalties were too high and they were afraid, understandably so. And again, all of this is by design. And that’s why it sort of makes me bananas when we allow Republicans to talk about rape and incest exceptions as something they’re compromising on. Right. Like, oh, I’m trying to be a good person. I’m trying to be reasonable. You know, I’m softening on this. I’m going to be more moderate. I’m going to put this exception. And it doesn’t mean anything. The only thing it does is give Republicans good PR. That’s it.


Leah Litman So, Jessica, are you getting a sense of the kinds of networks that might be cropping up to provide care or transportation for pregnant individuals who need to travel for abortion care? Obviously, reproductive deserts, you know, are something that predates. DOBBS So networks have been around for a while, but the need has increased, you know, in many places in the wake of. DOBBS You know, are there particular organizations that you would direct our listeners to in terms of getting involved or providing financial support?


Jessica Valenti I mean, every single state has an abortion fund, likely multiple abortion funds. And I think that that’s always the best place to start because, as you said, like these were organizations that were already doing this work before. DOBBS So they are really well set up. They know the landscape, They know their communities. They know what people need. And those are the people who are doing the best work. Now, lots of states are trying to find ways to stop them. Lots of states are trying to find ways to like not let people fund them or to criminalize them. And so it’s always good to donate and give your time there. There is such a lack of support in places like Texas. We’ve seen like a couple of Mexican organizations that have started to help women in the U.S. because that’s how much we need help. We need women from other countries to help. And then what’s been really nice is also seeing all of these online spaces crop up to help as well. So you have places like Aid access. Irin Carmon just did a great New York magazine piece about the women who run the abortion subreddit and all of the advice that they give out there. And I started spending some time on there. And it really is unbelievable. Like you’ll have a teenager make a point, like, I’m scared, I’m six weeks pregnant and don’t know what my choices are. And all of a sudden you have like this group of well-informed individuals who can swoop in and share information. And that has been one of the optimistic is not the right word. But but heartening things to see is it does feel like. Women and activists are really coming together to try to support each other through this and to try to help however they can. And so that makes me feel a little bit better about the state of the world.


Kate Shaw Well, and also that some good can come from these online spaces that feel like there’s so much negativity in them, just like, you know, both Subreddit and Tik Tok, you have mentioned as actually forces for good in terms of sharing stories and building community. So yeah, I agree.


Leah Litman [AD]


Kate Shaw So obviously, we’ve now talked about taxes a couple of times. It’s really hard not to talk about taxes constantly in this conversation. But we actually did want to ask and we have our listeners will remember we have talked on that pod previously, including in a recent live show with the law professor and Dean Rachel Hrabowski, about a case that, yes, I am sure is very rare. I know is very on your radar. So that’s the case that’s currently pending before District Judge Matthew, because Merrick in Texas challenging the FDA’s decades old approval of mifepristone for early abortions. And I’m curious how worried the people that you are talking to and reading are about the prospects of this lawsuit And just kind of you know, we’ve talked a little bit about the legal arguments in the case, but just concretely, what it would mean for him to side with these plaintiffs who are seeking basically to prevent individuals in every state in the country, not just in the state of Texas, from accessing this very safe, many decades old, extremely widely used early abortion drug.


Jessica Valenti Everyone I speak to who is in the know and who is an expert is really freaking out, is really afraid, and I think rightfully so. However, I’m not seeing that same level of urgency, but sort of in the broader mainstream space, I don’t think a lot of people understand that a decision like this could impact pro-choice states as well. I think that people really have a false sense of security when they live in places like New York and California, and they don’t understand that just because, you know, you can’t ban abortion in the state doesn’t mean you can’t ban like a method of abortion. And as you said, this is over 50% of abortions. And so it would have this huge impact on pro-choice states. And then women in anti-choice states, we know this is how they’re get their ending their pregnancies. Right. Like they’re ordering abortion medication online. This is this is how they’re doing it. And, of course, that’s the point. And the anti-choice movement knows that. And what feels extra sort of disgusting to me is that we know one of the reasons that we haven’t seen women die from illegal abortions is because of abortion medication. Right. Like that is the big thing that has shifted from pre road to post Roe is that we have abortion medication. Self-managed abortion at home is actually very safe. And so when you take that away and all of a sudden you have desperate women around the country, we’re going to see a really scary impact. And so, yeah, I think I think everyone who understands the stakes and who is, you know, really involved in abortion rights understands how bad it is. But I think the vast majority of people don’t.


Leah Litman I just want to again, for the sake of clarity, expand on what the plaintiffs are asking the court to do to make clear why, as you rightly say, look, this is going to affect the entire country, including if you live in a state where abortion is legal. What the plaintiffs are asking the courts to do is something no court has ever done before, which is to revoke the FDA’s certification and approval of a drug as safe and effective. And that drug is mifepristone, which is one of the two drugs used in medication abortion. Now, we also know this judge, Matthew, because Merrick loves to issue something we’ve talked about before, nationwide injunctions. So if the plaintiff prevails, it seems like he would revoke that certification effective nationwide and that would prevent, you know, the prescription approval of doctors, you know, giving a first down for abortions anywhere. So, again, does it matter if you are living in a state where abortion is legal? You know, if he revokes the ability to prescribe, never. PRESTON Nationwide, that means doctors wouldn’t be prescribing it anywhere. Now, would this end medication, abortion? No. There could be some off label use of mysa, which is the second drug in the two drug medication abortion combination. And it is possible to take more miso in different dosages to induce a medication abortion without with a per stone. But that is more painful. You know, it’s still safe, but it’s not as they’re like, there’s a reason why if a stone is part of the recommended course for medication abortion and again, this is a district judge that has attempted to require the Biden administration now twice to keep the Trump administration’s remain in Mexico policy. This is the judge that invalidated partially the Title ten Family planning program. This is the judge that freely cites Justice Alito’s dissenting opinion in Bostock, or Justice Scalia’s dissenting opinion in Lawrence versus Texas, which upheld the right to consensual same sex sexual intimacy between adults. I mean, this is the judge who has been asked to effect. If we give Republicans a partial nationwide abortion ban. And this is also why I hate, you know, all of the discussion about, well, they’re not trying to get a nationwide abortion ban. It’s like, well, sure. Like, they’re not introducing that bill in Congress in those terms. But guess what they’re doing in the district court of Texas? They’re asking the most powerful man in America to effectively give them a partial nationwide ban on abortion.


Jessica Valenti It’s infuriating. It’s infuriating. And it’s infuriating that people are not talking about it like it is a national ban because that’s what it is. But it is very much like every single other thing that they do, which we were talking about, which is a chipping away approach, which is not saying outright, we’re going to be on this, we’re going to be on that, we’re going to stop travel where, you know, they just do it. They just do it. And then they say, What are you talking about? We didn’t do that. Like, it’s just like this National gaslighting.


Leah Litman The meanest, worst thing you can do is to accurately describe what they are doing. Like that is just deeply unfair.


Kate Shaw It’s out of bounds.


Leah Litman Right.


Kate Shaw Yeah.


Leah Litman Exactly. So we got into this a little bit, I guess already twice in talking about the or alluding to the State of the Union. But I guess we should come back to it now. You know, what do you think the Biden White House should be doing, both in terms of rhetoric and focusing attention, but maybe also some substance, you know, to protect abortion access?


Jessica Valenti I mean, at this point, I would just settle for like a little bit of fucking energy around it. Right. Like, I think that was the worst thing about watching the State of the Union. And, you know, he had so much energy around certain issues. And then, you know, not only was abortion rights only given four sentences, it was under 30 seconds. He almost seemed to like like shrug out the words. There was no the audience obviously ever heard the standing ovation. And everyone really cares about this. I just don’t think that he cares as much as he should. This is not a huge issue for him. That that is what I think. And I just would like to see the White House and every politician treat abortion like the very popular issue that it is. Americans overwhelmingly support abortion access and they tip around and talk about it as if that’s not the case, as if people are split, as if this is super controversial. It is. It is not. Americans are very, very clear and have been for decades about how they feel about about legal abortion. And we are giving Republicans such a gift when we are on the defensive. Right. And I think like that is the biggest thing that has that has really been on my mind that and talking about the stuff that we’ve been talking about here, about how exceptions aren’t real, right, about how rape and incest exceptions do not work. Right. Like what? I would love to see Biden come out and say like, hey, show me one rape victim that has been able to access an abortion in any of these states. Just a little bit of energy and consistency, I think would be nice. And then, you know, of course, but in the Senate, like, there are things that they can do. And I was glad to see the Democrats finally start to, you know, think about ending the Hyde Amendment. Like, that’s one of the most important things. But there are all of these other ways that they can at least try to protect us. They can increase digital protections for private health data, increased regulations on crisis pregnancy centers, which are getting more and more money across the nation. There was just a story in The Guardian about a Kentucky crisis pregnancy center. A nurse who volunteered there came forward and talked about how they were using expired disinfectant on vaginal probes. When she went to the state board, the state medical board, the state nursing board, they decided to take no disciplinary action because the regulations around crisis pregnancy centers are so loose. Meanwhile, if you’re an abortion clinic and your hallway is like six inches too narrow, you can get shut down. So there’s all of these like little nuance things that they can be doing. But the biggest thing for me is that rhetoric is that like really owning the issue. Voters came out in the midterms and it showed show them abortion is a winning issue. Like treat it like it is.


Kate Shaw Yeah. And just to go back to something you said at the beginning, Jess, I think it is not like the ask that you’re making here is like for Biden to get out on the far left of his party or something, right? Like Joe Biden likes to be in the middle of the Democratic Party. Right. That that we sort of know. And guess what? What you were saying is the data shows us abortion support is like a centrist Democratic issue. This is something that would not require any new ground to be broken. It really would just be to align what the White House is saying with what American, but what the American people, not just Democrats. The American people, broadly speaking, already think and want. And I, too, can’t get my head. Around why we heard so little at the State of the Union and just kind of in general from the White House.


Leah Litman It feels like it could be part of like, don’t be crazy, be normal, right? General platform, right. Like, don’t be crazy and like, force people to, like, needlessly suffer and, like, risk death. How about we let people get medical care? Like, that’s a normal thing to.


Kate Shaw Do, right? Right. No, that’s.


Jessica Valenti Right. There’s nothing radical about it. And all you have to do really is explain what is happening on the ground. Right. And like really to have some awareness raising going on, I think would go a long way. You have states like Tennessee where like 85% of people support, you know, rape and incest exceptions. But then you look and a vast majority of people in Tennessee don’t know that their state doesn’t have rape and incest exceptions. Some people even think a good proportion thought that abortion was legal. Right. And so just having have them talk about it every single day, talking about what the laws actually are, what they what they really do, people do care about this. And I think, again, so much of what Republicans are trying to do is do all of this under the cover of night, try to to make sure that people don’t understand what is really going on and what their laws really do. Just shining a light on it, I think makes a huge impact.


Kate Shaw Yeah.


Leah Litman So just in the interest of seeing some connections across different areas of law, I wanted to draw our listeners attention to a recent Fifth Circuit decision, Rahimi versus United States. That is a Second Amendment decision that kind of exemplifies this. The last term of the Supreme Court was basically the originalist case for like terrorizing women. And, you know, Rahimi takes the Supreme Court’s decision in Bruin and uses it to strike down a federal law prohibiting individuals under domestic violence, restraining orders of protection and prohibits them from possessing firearms. The Fifth Circuit said that law is unconstitutional. The decision is like both a stunning and terrifying illustration of the consequence of the method of interpretation, the court announced. And Broun. Basically, gun laws are only okay if they look like historical gun laws. So if, say, male lawmakers in the 1780s or 1860s didn’t think there was a need to pass laws disarming violent abusers, then gee, I wonder why that might have been like. Our elected representatives can’t pass those laws today. It’s like you must determine women’s rights today by yoking them to the time when women had no rights. And guess what? Like that results in women having no rights and surprise, you know, Sorry, ladies.


Kate Shaw And this is an example of you being wildly unfair by describing in accurate terms exactly what the Supreme Court’s opinion says, because this is not our gloss on it. It’s like literally, this is what the opinion says and it is this case is just such a perfect illustration of how dangerous the method is because the data on abusers with firearms, it makes just an unanswerable and overwhelming case for how important these laws are, right? Like I say, every month in this country, women are shot and killed by their partners. There is airtight research showing that domestic violence victims risk of being killed by their partners is five times higher if their partners have guns. But what the Supreme Court said in Bruin is like, none of that matters. It doesn’t matter if a particular law like one that disarms domestic violence abusers is 100% certain to save thousands or tens of thousands or even, say, hundreds of thousands of lives. All that matters is whether a gun law today looks like historical gun laws. And if it doesn’t, doesn’t matter how imperative it is, no matter how many lives it will save, it is off limits. Like that is literally what the Supreme Court says in the Bruin case. And this is the result. And I think the Supreme Court probably didn’t expect it would have to take another gun case so soon after the Bruin case. But I think when a lower federal appeals court strikes down a federal statute like this one, it’s almost inevitable that the Supreme Court will take it up and they’re going to have to decide whether they are going to greenlight this kind of application of their method or whether they’re going to pull back. And I genuinely don’t know. I know that Thomas will say this is the correct application and Alito and Ambrosino and Gorsuch will as well. And I genuinely don’t know what Kavanaugh and Roberts and Barrett will say about this opinion, but I think we’ll find out.


Leah Litman If Brett Kavanaugh invalidates this federal law. He’ll write a concurrence reminding us that he’s a really nice guy and hires a bunch of women law clerks. So don’t worry, Kate.


Kate Shaw We can look forward to that.


Leah Litman Right.


Kate Shaw Okay. So to pivot for just one moment to a piece of good news that broke the morning that we were recording. So as of today, Dale Ho, Julie Beckman, Natasha merrill Nasrat Chaudhary and many other nominees advanced in committee. So these are federal judicial nominees, some of whom have been sitting in committee for months and months and months. They’re now out of committee. Hopefully they will get swift votes on the Senate floor and be confirmed to the federal bench soon. So that is a great development.


Leah Litman So, Jessica, can you share with our listeners or remind our listeners how they can support your work and your substack.


Jessica Valenti Just sign up. Just. Just sign on up. Its Jessica dot Substack dot com. Honestly, the best way to support the work is with a paid subscription. It’s usually $5 a month through the end of the month it’s $4.25 a month. Support it by subscribing, but read and share. I think that’s the other thing that I have been really happy to see people doing is sharing not only my newsletter but sharing other abortion news, really not letting it die from the national conversation and from family conversations and community conversations. Right. And just relaying that sense of urgency and keeping it top of mind for people, I think is the most important thing that we can do.


Kate Shaw So, listeners, heed and just subscribe to the Substack. And just thanks so much for taking the time to talk to us today and for all your work, ensuring that these stories are being told and are being heard, we are very grateful.


Jessica Valenti Thank you.


Leah Litman [AD]


Kate Shaw Before we go, because it’s been a little while since we’ve really, you know, checked in on the Supreme Court in general terms, maybe let’s do a little bit of some court culture, but also some developments both in and around the court. We should say the court has been on kind of a crazy long winter recess. I don’t remember them taking just like.


Leah Litman This always happens between the January and February sittings.


Kate Shaw Is it this year longer than. I don’t know. Maybe just like the dread of what is coming in February, it seems terrible. But anyway, so it has been a long winter recess. But on our next episode, we will turn back to previewing the cases that they will consider in February. But right now, as I said, we’ll spend a little time highlighting a few other developments kind of around and outside the court. So you want to start us off.


Leah Litman So I wanted to take a bit and highlight a cert petition, which is a request at the Supreme Court, actually hear a case which we don’t usually do. But I wanted to make an exception here, and this is a cert petition for a case captioned as Glossop versus Oklahoma. And if the name Glossip sounds familiar, that’s because this person has been before the Supreme Court. It is Richard Glossip. From the case of Glossip versus GROSS, the court’s major Eighth Amendment case that announced a standard governing, you know, the legal challenges under the Eighth Amendment to states methods of execution. And the decision cleared the way for Mr. Gossips execution, which has been rescheduled eight times since 2015. Now, Glossip has been on death row for 24 years, and several of those reschedule things have come about because of the facts of the underlying conviction. In particular, it is undisputed that another person, Justin Snead, who was also the main witness against Mr. Glossip. It is undisputed that Snead was the person who murdered Barry Ventris and now Mr. Glossip was found guilty of hiring Snead to commit the murder based on Snead testimony. As an aside, you know, listeners, would you care to venture a guess about who wrote the opinion that cleared the way to execute a possibly innocent man? The author of the opinion is, of course, Sam Alito. Clarence Thomas also would have been an acceptable answer in light of last term’s decision. And Shen versus Ramirez, which cleared the way to execute another possibly innocent man. Although in Glossip, there’s a Justice Thomas concurrence that’s basically like, I’d probably be okay with torturing someone to death. But I digress.


Kate Shaw I think it is possibly the gastliest Supreme Court, not a gaslightiest, is just like it is a ghastly, vile piece of rhetoric. And it’s just the Thomas opinion is truly shocking. So I don’t know if I’m recommending our listeners go read it, but they I guess I guess this is a trigger warning if they decide they’re interested based on your discussion and go, just be warned. Sorry, Go on.


Leah Litman Um. No. Glossop is also the case in which, you know, now retired Justice Breyer wrote the famous dissent announcing. That he and Justice Ginsburg, who joined him, wanted briefing on whether the death penalty was constitutional at all. Now, that was the previous case, which was about the state’s method of execution. The current case involves a challenge to Oklahoma’s rules that have prevented Mr. Glossip from introducing evidence and having a court consider evidence of his innocence, and specifically the Oklahoma court’s refusal to consider evidence that Oklahoma illegally withheld evidence that would have bolstered his claims of innocence. So as I suggested, you know, the only evidence linking Mr. Glossip to the murder was the testimony of Justin Snead, the undisputed killer who said Mr. Glossip hired him. But the state’s investigators fed Snead Mr. Gossips name, you know, more than five times. They also suggested to him that his cooperation would result in leniency. And on top of that, you know, Snead attempted to recant his testimony before and after the trial, resulting in Mr. Glossip conviction. This includes writing a handwritten note in which he asked his lawyer, quote, Do I have the choice of recanting at any time during my life? And a second note that said his testimony was, quote, a mistake. Neither of these things were ever shared with Mr. Glossip lawyer. It’s so bad, that set of facts that the Oklahoma attorney general announced he was directing an independent counsel to review the conviction and death sentence. This happens on the heels of a kind of ad hoc group of Republican Oklahoma State legislators previously calling for an investigation that was then conducted by the law firm Reed Smith. That investigation ultimately concluded that a jury that was presented with all of the evidence would not have found Glossip guilty. And there’s an interesting array of amicus briefs in the case that are supporting Mr. Gossips. Request that the Supreme Court hear the case, one from an Oklahoma legislator who describes himself as, you know, a general supporter of the death penalty. But, you know, not in this case. And another from a group of prosecutors. So I just wanted to draw attention to this case, which could make its way onto the court’s docket, or at least it seems like the court is entertaining a request about whether to hear something about this case or do something about it.


Kate Shaw I’m so glad you highlighted that. One other case that I feel like this is a development about a Supreme Court case, but in the lower courts, should we mention the rehearing decision in Moore versus Harper?


Leah Litman Yeah, definitely.


Kate Shaw Okay. So this is we will maybe be brief in the overview. Rick Hasen had a good piece and Slate last week kind of walking through the events. But basically this is the independent state legislature theory case that we’ve talked about a number of times on the show. The court heard arguments in December and is now considering the case. But basically, during the November elections, in which, you know, Democrats outperformed expectations nearly everywhere, North Carolina was actually one of the exceptions. So Republicans flipped control of the North Carolina Supreme Court, which had previously had a Democratic majority. So there is now a Republican majority on that court. And the state legislature, also Republican, which had lost in the state Supreme Court and was the party that asked the U.S. Supreme Court to hear the Moore case has now gone back to the state Supreme Court and asked that state court newly constituted right with the new Republican majority to rehear the case about the constitutionality of the state map that is at issue in Moore. So the case is pending in the U.S. Supreme Court, and they are asking the state Supreme Court to rehear the underlying case. Now, if this sounds convoluted and unusual, it is. It’s very unusual, I gather, for that court to rehear cases at all. It is just unusual in general for a state court to rehear a case while the Supreme Court is considering that case.


Leah Litman And especially to rehear a case that was recently decided. And they also agreed to rehear another voting rights case that was also not favorable to the legislature. It’s like new YOLO Court rising in North Carolina.


Kate Shaw Absolutely right to ask. And then the fact that it was successful. So, yes, obviously, we should keep an eye on that court In general, the fact that they took these cases is in itself really striking. But it’s also an interesting indication, I thought, that the Republican legislature in North Carolina is concerned that they might not get as big a favorable ruling out of the U.S. Supreme Court as they were hoping to. And so they would like to moot the U.S. Supreme Court case by winning in the state Supreme Court. And I guess I’m like I had sort of mixed reactions to seeing this. Lee, I’m curious what you thought. Obviously, you and I have written about the independent state legislature theory. More is a case that is very scary in certain ways, in that it gives the U.S. Supreme Court the opportunity to potentially embrace some version of this theory. And it’s an incredibly dangerous theory. So on the one hand, keeping out of the Supreme Court a case that is a potential vehicle to embrace a version of this theory is good in general. On the other hand, if this is a case where the theory was less likely to succeed or to succeed in big terms and taking this case away for. The court opens up the possibility of a future case. Maybe a bigger, more kind of maximalist in framing case, coming back to the court or potentially coming back to the court on some timeline. That means, you know, the court is going to decide whether to embrace this theory in the context of a presidential election, maybe in a case involving not just a map, but an attempt to actually appoint electors by state legislature. You know, who knows how the case arises. But I guess I don’t know if this case is muted. Is that a bullet dodged or the opening up of something even more dangerous down the road? I mean, I’m curious what your reaction was.


Leah Litman Yeah, I really don’t know. You know, obviously, my first choice would be ensuring this court never has a case to possibly embrace independence. State legislature saying, I don’t think that is going to be granted. You know, this court has shown an interest in the theory and carving out some role for the federal courts, the Supreme Court’s to play in overseeing, you know, state courts interpretation of state constitutions and state statutes governing federal elections. And I also agree that putting it off until an election is under way could be extremely chaotic. And if you recall from the oral arguments in this case, you had some justices expressing dissatisfaction that the advocate representing the North Carolina legislature had not framed their argument in aggressive enough terms and wasn’t frontally attacking the Supreme Court’s precedents that allowed, for example, you know, a governor to veto a state law regarding federal elections and things like that. And so I really don’t know kind of where where my intuition is there.


Kate Shaw Yeah. Well, we will we’ll keep an eye, obviously, on developments in the North Carolina Supreme Court. Another state that we are keeping a very close watch on, as we’ve mentioned now a bunch of times on the show is Wisconsin, where the judicial primary is coming up. That’s going to be February 21st. And I don’t know if you’ve noticed this this week, but lots of people beyond us are paying attention to this race. So there has been, you know, major ad buys across the state. And I watched a couple of these ads online this week, and it’s pretty interesting. So some of them, at least, are explicitly discussing abortion. So one of the candidates, Janet Pro, to say this was a lower court judge basically says in one of her campaign ads, I will act to protect fundamental rights like the right to abortion. And I couldn’t recall another state judicial race in which there were such explicit engagement with this question, like this, like abortion. And I also thought it was really striking that at least in the ads that I saw from one of the conservatives who running. So this is a nonpartisan, open primary. But Dan Kelly is one of the conservative candidates. And he cut an ad that was like completely silent on abortion. So it is interesting to me that there is a very different interest in explicitly engaging with the question of abortion by different candidates running in this race. So it’s an interesting reveal of, I think, where these candidates think Wisconsin voters are. So this is this open primary where there are four candidates running and then the top two advanced to the April general election. So I’m going to be very curious to sort of see as those campaign ads continue to roll out kind of how explicitly these issues are engaged.


Leah Litman Yeah, I mean, that pattern, you know, with one candidate indicating support for the existence of a fundamental right to make decisions about your body and another candidate saying nothing is very consistent with the trend that Jessica was just talking about, you know, that she’s observed in several different locations on this issue. So we’ve already mentioned President Biden’s brief mention of jobs and abortion in the State of the Union. You know, in that speech, he also kind of completely ignored the Supreme Court. At the speech, there was a pretty large turnout for members of the court. Chief Justice Roberts was there as well as Justice Kagan. Plus, the newbies, meaning Justice Kavanaugh, Justice Barrett and Justice Jackson. Retired Justices Breyer and Kennedy also appeared, which I think you thought was maybe the first time since the 1990s that a retired justice has been there.


Kate Shaw I think that’s what I saw just as white in the nineties was the last I couldn’t remember seeing any retired justices there. But, you know, it’s not the first time, but it is unusual.


Leah Litman Yeah. I also wanted to give a shout out to Justice Kagan’s sartorial choices. Um the robe that she was wearing had some cape like attributes to it.


Kate Shaw I know I feel badly talking about her cape without Melissa here, because remember, I don’t now remember the exact event. It was something around the death of the Queen. I can’t remember if it was her actual funeral or some, you know, adjacent event. But the Duchess of Sussex, Meghan Markle, wore a gorgeous cape like dress, and Melissa took to the airwaves and suggested that the justices consider doing something similar. And it sort of seems to me like Elena Kagan might have been listening and actually might have been communicating back to it.


Leah Litman I would take fashion advice from Melissa.


Kate Shaw Obviously.


Leah Litman I mean.


Kate Shaw Yes, clearly, although I have to say, it seems kind of like I just couldn’t really tell how much of a robe it really was. And I did wonder, in addition to wondering whether in fact she was listening to Melissa’s advice, whether she was in some subtle way communicating. I mean, it is, if you think about it, pretty weird that they come to the State of the Union in their wizard robes. Right. They literally are walking and communicating to all like we wear these robes. We do something different from the rest of you. And and the way you know that we do something different is because we wear these robes. And whether there’s a little part of her that was like, No, no, we’re not. No, we don’t know. We’re not. And it was just a subtle communication of that quite profound point about what it is this court is doing. So, that was


Leah Litman Next year, she’ll show up in a white pantsuit. Um and


Kate Shaw Oh man, and we will really know she is listening to the pod if she does do that. So please. Justice Kagan make this happen.


Leah Litman Yeah. And the shirt under it will say “YOLO Court” or “No Law, Just Vibes.” And again, that’s how we’ll know.


Kate Shaw We also should just in other lighthearted news, note that Justice Jackson is the latest justice to apparently pen a book deal. So she is writing a memoir. It’s going to be titled Lovely One with Random House. I didn’t see any reporting about how much she sold this book for. I’m remembering that Justice Barrett reportedly sold her book for something like 2 million a couple of years ago and or I can’t remember now right after she joined the court. I guess so. Presumably Justice Jackson got something in that neighborhood. And, you know, I’m looking forward to it, honestly, Like I chose his memoirs. I mean, I’m really not sure what Justice Barrett will sound like, but I will say that Justice Sotomayor’s my beloved world for folks who haven’t read it, is a genuinely excellent and beautifully written book. So I highly recommend that. And I am looking forward to Justice Jackson’s.


Leah Litman And finally, The Washington Post reported that over the last four years and behind closed doors where all of the fun happens, the justices have been debating an ethics code for themselves. They’ve been debating, you know, what ethics code to impose on themselves since apparently Congress won’t do it for them. But surprise, in those discussions and debates, they have failed to reach agreement among themselves like about whether they are significant or others or spouses can participate in cou adjacent activities that might come before the court that they failed to reach consensus on. Which makes you wonder who the holdouts might be.


Kate Shaw I want to report from the marshals office that basically says we tried really hard and.


Leah Litman Michael Chertoff will sign off on that.


Kate Shaw He also examined our internal processes and decided we did great. We just couldn’t come up with anything.


Leah Litman So exactly. I can’t think of anything else. They could have tried, you know. But, hey, the court did try to make an ethics code and really, that’s all you can ask. I’m I’m satisfied by this. Give it the old college try. Way to go.


Kate Shaw Nice work, guys. So I think I think we’ll leave it there. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuho, Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. We will see you next time.