What's next in a post-Roe world | Crooked Media
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May 16, 2022
Strict Scrutiny
What's next in a post-Roe world

In This Episode

Kate and Leah spend some additional time on possible fallout from a Dobbs opinion overruling or eviscerating Roe. They interview two people with insight on what we can expect in a post-Roe world. Diana Greene Foster is a professor in the Department of Obstetrics, Gynecology & Reproductive Sciences and a researcher on reproductive health at UCSF. She’s also the author of The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having–Or Being Denied–An Abortion [3:14]. And Greer Donley is an assistant professor at University of Pittsburgh Law, and one of the three authors of the extremely topical and important article, “The New Abortion Battleground,” which is forthcoming in the Columbia Law Review. The paper is written together with Professor David Cohen at Drexel Kline School of Law and Professor Rachel Rebouche, Interim Dean of Temple University Beasley School of Law. The paper analyzes the inter-jurisdictional issues that will emerge if and when the Supreme Court overrules Roe [32:04]. We’ll also catch up on some of the additional news and hot takes people have had since the leak happened [57:52].




[Show Intro]


Kate Shaw: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today. I’m Kate Shaw.


Leah Litman: And I’m Leah Litman. And the Supreme Court seems to have ground to a halt as the court has been completely engulfed in the fallout from the leaked draft opinion in Dobbs versus Jackson Women’s Health Organization. And that opinion, of course, would overrule Roe versus Wade and Planned Parenthood versus Casey. There have been no further opinions from the court, official or otherwise, even though we are coming up on the last six weeks of the Supreme Court’s term. And I think there are something like 37 cases that were argued still outstanding. But because that leaked draft is still the topic on everyone’s mind, and because if that draft or some version of it does become a final official opinion, the consequences will be astounding. We wanted to spend some additional time on some possible fallout from a Dobbs opinion overruling or eviscerating Roe, in part because the news cycle seems to have already somewhat moved past the actual consequences of a decision overruling Roe.


Kate Shaw: So to bring the conversation back to concrete consequences, we’re going to be joined today by two fantastic expert guests. We will first be joined by Diana Green Foster, a professor in the Department of Obstetrics, Gynecology and Reproductive Sciences and a researcher on reproductive health at UCSF will then be joined by Greer Donley, who is currently an assistant professor of law at the University of Pittsburgh Law School and will be an associate professor of law in the fall. Now, we’ve spent a good amount of time on our two most recent episodes dissecting the leaked draft opinion and Dobbs that Leah was just talking about. But again, today, we’re going to shift our focus to some of the on the ground realities that a post Roe world would entail. And to do that, we’re going to talk about the impact on women of being able to access abortion and of being denied that access, and also about what the legal landscape will look like in a world in which access to legal abortion varies dramatically depending on where you live. Let’s dove right in. So our first guest today is Diana Greene Foster, a leading researcher on abortion and in particular on the health and well-being of individuals who seek and obtain or who seek and do not obtain abortions. She’s the author of the extraordinary book The Turn Away Study: Ten Years a Thousand Women and the Consequences of Having or Being Denied an Abortion. We’re going to talk a lot more about her research and that book. So, Diana, welcome. to Strict Scrutiny. It is great to have you on the podcast.


Diana Greene Foster: Thank you so much for having me.


Leah Litman: So our audience isn’t going to need to be told that abortion is at the center of our national legal and political discourse right now. As we all know, the leaked draft opinion authored by Justice Samuel Alito would overturn Roe and Casey and hold that states basically have free reign to restrict and even prohibit abortion, in contrast to the state of affairs that has existed, at least in theory, over the past 50 years, which has been that the Constitution protects the right to choose to continue with or to terminate a pregnancy until the point of viability, and that there are limits on state’s ability to interfere with or undermine the exercise of that right. All of that may end as a matter of judge made constitutional law within the next month or two.


Kate Shaw: So the landscape around abortion access may look very different again as a formal legal matter in a matter of weeks or months at the most. But of course, the reality has been that lawmakers have made it increasingly difficult to access abortion for decades, as lawmakers have erected barrier after barrier to that, in theory, constitutionally protected exercise. So, Diana, let’s dove right in. And can we start by asking you to describe your turn away study? What is that study? How did it come about? How did you design it and why did you design it the way that you did?


Diana Greene Foster: So the Turn Away study was an investigation of what the consequences are for people who receive abortions, because in response to another Supreme Court case, Gonzales v Carhart, where Justice Kennedy had said, though there are no reliable data, he thought that people would come to be depressed if they got an abortion. So there was a desperate need around 2007 for some reliable data. And it’s not for lack of trying. It’s just hard to study, you know? Who do you compare people who get abortions to if you’re going to restrict access to abortion than the right comparison group is people who want an abortion and can’t get it. So that’s what we did. We went to 30 abortion facilities across the country where if you’re too far in pregnancy for that clinic, there’s no other clinic within 150 miles that would do an abortion later. So we got people who are just over the limit and were denied just under the limit and received their wanted abortions. And the two groups were quite similar at the beginning, and then their lives diverged in ways that tell us what is the consequences of for people if they receive or are denied a wanted abortion.


Kate Shaw: Quick follow up question just about study design. So that means that those participants that you’re talking about now were, kind of by design, just before or just after whatever gestational limit the state as a matter of state law imposed at the time, or as you say, as the clinics practice, some clinics don’t actually provide abortions up to the state law limit because they just don’t have on staff physicians who are able or comfortable or trained to provide later term abortions, even where state law would permit that. But whatever the line is, it is in a relative sense, later in pregnancy as compared to very early abortions. So many of the participants were in the kind of later abortion category. But you did, of course, right at a bunch of earlier abortion recipients to your study group. Right? So can you just talk about that briefly?


Diana Greene Foster: Yeah. So at each site we recruited for every one woman denied, we recruited two women just under the gestational limit and one woman in the first trimester. So unfortunately excluded trans men and non-binary people. And if I had to do it again, I would fix that. But so we refer to them as women. So the women who were later in pregnancy, you know, I had a concern that maybe their experiences would be different than people who 90% of Americans who get abortions do so in the first trimester. So we needed to know, was the experience of those people just under the limit? Was that a typical experience? So that’s one of the research questions.


Leah Litman: So could you tell us just some of the key findings of the study, like what were the key effects of receiving an abortion on women’s emotional well-being, mental health, financial well-being and relationships? And what about being denied an abortion as well?


Diana Greene Foster: Yes. So first to point out that actually it turns out the people who seek abortions later in pregnancy are not very different than the people who seek it early. Largely, it’s a cascade of delays caused by late recognition of pregnancy. And then all the logistical barriers, some legally imposed that slow people down from getting an abortion earlier. But when we compare people just over and just under the gestational limit, what we see is that they are very similar at baseline and where they differ is in two major areas, one in physical health. So it’s underappreciated the risks of continuing a pregnancy and carrying it to term and delivery and the differences in physical health don’t even end there. We actually see worse physical health for years among the people who delivered, and we had two women who died of childbirth related causes in the study. So it really puts in stark attention how serious it is to ask somebody to carry a pregnancy to term when they don’t want to have a child. The other area that we see major differences is in socio economic well-being. So the chance of the families living in poverty, the chance that the woman involved is still exposed to violence from the man involved in the pregnancy. The chance that she sets and achieves aspirational plans for the coming year, we see it in the chance that she has an intended pregnancy within the five years. So in fact, not being able to get this wanted abortion means that the woman is less likely to have an intended pregnancy later and also in people’s ability to take care of their existing children. That’s another reason people give for wanting to have an abortion is that they need to take care of the children they already have. And we can see both through economic well-being and achievement of child developmental milestones, that the existing children do worse if their mother is denied an abortion than if they receive one.


Kate Shaw: And just for our listeners who aren’t familiar with the study design, Diana mentioned the five years, right? So this one amazing aspect of the study is that your team of researchers followed up is that it was every six months. Right. Please correct me if I’m wrong, Diana, and just had these kind of in-depth conversations with the study participants that assessed outcomes along all of these metrics. And as you just said, the findings are that there is no evidence that accessing abortion hurts women. And to the contrary, on every metric that you assessed, women who obtained access to wanted abortions did as well or better, right? Than women who were denied those abortions. And again, physical health, employment, financial picture, mental health, the aspiration. I love the part of the study where you say, well, there are ways to ask about objective achievements following, getting or being denied an abortion, like did you finish the schooling you were in or, you know, career attainment? But what have you asked women about their own goals and dreams and measured their trajectories alongside their own identified goals? And along those metrics, too, it sounds as though, you know, the groups are similar in many ways, but if there is a divergence its that women who got their wanted abortions do better.


Diana Greene Foster: And I was asked and didn’t quite address the mental health and emotional differences. And what we see is that there’s short term mental health harm among people who are denied an abortion. So we can measure that with validated scales that show higher anxiety, lower self-esteem, lower life satisfaction among the people denied. But in fact, the differences. Aren’t long lasting over time. There actually aren’t differences between people who receive and are denied abortions in terms of mental health. And it’s not because both groups are doing badly. In fact, both groups improve over time and emotionally. Kennedy was just wrong about the increase in depression over time. That is not, and increase in regret. In fact, although some people do have negative emotions about their abortions, positive emotions outweigh negative emotions, and the incidence of both positive and negative emotions reduce over time and over the five years. People say what that they stop thinking about it, except when we call them for these interviews.


Leah Litman: Continuing along this line of thinking about the consequences on women, society, the country, you know, in a world in which access to abortion becomes all that more difficult. This past week, we actually heard testimony in some Senate hearings when Janet Yellen, Secretary of the Treasury, spoke about the effect of being denied an abortion. So I just wanted to play that clip here.


Janet Yellen CLIP: I believe that eliminating the right of women to make decisions about when and whether to have children would have very damaging effects on the economy and would set women back decades. Roe v Wade and access to reproductive health care, including abortion, helped lead to increased labor force participation. It enabled many women to finish school that increased their earning potential. It allowed women to plan and balance their families and careers. And research also shows that it had a favorable impact on the well-being and earnings of of children.


Leah Litman: I really don’t think that people have begun to appreciate, you know, the consequences on the workforce, individuals’ well-being, their lives as we know them, if all of a sudden we withdraw abortion care in significant parts of the country. Like when I think about all of the wonderful things that people I know who have had abortions have gone on to do, having and raising wonderful children with intended, safe, healthy pregnancies, careers that have advanced causes of law, justice, equality. And it really just it breaks my heart when I think about the people that that you know, or who are ten years younger or 20 years younger that, you know, like may not have those opportunities.


Kate Shaw: Dana So you mentioned the course that, you know, the study is obviously designed at a moment in which there is this completely evidence, free speculation that appears not in the ether, but in a majority opinion of the Supreme Court. Right. Upholding this federal so-called partial birth abortion ban on the basis, at least in part of this, again, evidence, free speculation that some women come to regret their abortions. And at least it’s that’s a fair assumption. That’s essentially all that Kennedy offers. And you make clear that animating the study in part was a desire to actually produce good evidence about what kinds of effects abortion has on women and also being denied access to abortion at some women. So that’s, of course, a different moment, right? So at the time, abortion restrictions, whether state or federal, were largely being justified on the grounds that abortion harmed women’s physical and mental health and that women needed to be protected from the consequences of their decisions and things like that. Your study powerfully, I think, refutes all of those claims, but of course, the landscape as we have been talking about has shifted radically. And new laws are either the new ones that have been enacted or those that are, you know, either being drafted or in fact, enacted in this kind of radically new landscape in which we are residing, are not really framed as protecting women, but about preventing abortion in order to promote potential life. And so I guess I’m curious how this study speaks to this moment. Although it was designed and executed in response to a different moment and a different set of justifications for restricting access to abortion.


Diana Greene Foster: Yeah, it’s hard to see that restricting access to abortion results in better outcomes for children, if that’s the main goal is to produce more children. It’s not the case that having an abortion means that when people have abortions, it often replaces a wanted child later. So we’re not talking about more births or abortion. We’re talking about births at times when people felt like they didn’t have either the emotional or financial resources to raise a child. So I think that if when we look at the outcomes for children, we compare the child born because the mom was denied an abortion to the next child born. Two people who receive an abortion. And note the study only followed people for five years. So these are births. It’s not the woman who waited ten years to have a kid. It’s the woman who waited within five years to have a kid. And still we can see that those children born subsequent to an abortion do better. We see it in the chance that they’re being raised in a household where there’s enough money for basic living needs. And we also see it through the woman’s report of maternal bonding with the child. And when I’ve showed these results to pediatricians, that’s the part that they care the most about, because a woman’s bond with her child is predictive of a lot of outcomes for kids. And it’s not that every child who was born of an unwanted pregnancy does badly or isn’t loved. That’s not the point. The point is that by restricting access to abortion, we force people to be trying to raise a child when they don’t have all the resources, the supportive partner, the the job, the whatever circumstances that she would have wanted in order to raise a child. She won’t have those. And if she’s allowed to wait, it’s more likely she’ll have those later.


Leah Litman: This study is largely about second trimester abortions, which, as you said, are relatively rare. Over 90% of abortions in this country happen in the first trimester and second trimester. Abortions are more expensive, more time consuming, harder to get, and also singled out for particular judgment and opprobrium. Given all of this, why is it important to study second trimester abortions?


Diana Greene Foster: Well, before that leak decision, I really thought it was possible that the Supreme Court would decide to ban abortions at 15 weeks. And some people who are nominally pro-choice would say, fine, like let’s ban it, and at least we’ll have abortions for everyone else. And I think that then there’s just a failure to recognize that there’s not a big difference between people who seek later abortions and people who seek earlier abortions in a way that would make one group less worthy of that. Right. These outcomes are primarily for people who support abortions in the end received in the second trimester compared to those who sought and were denied in the second trimester. When we look at the first trimester sample, we can see they’re slightly more privileged at the onset because not having to delay in order to raise money to pay for an abortion speeds up. But there are a wide range of socioeconomic people in both groups, and there just aren’t the differences in outcomes for the people who saw abortions in the second trimester, where one of the critiques I had of the study before I did it was you’re looking at people late in pregnancy. Their lives must be messed up. So whether they get an abortion or not, it’s really not going to affect them that much. They’re just not on some great plane towards life improvement and those people are just 100% wrong. People set aspirational plans, whether they were in the later abortion group or the earlier abortion group. People had goals to take care of their kids. One leading cause of people being late to recognize their pregnancy is that they just had a kid. Rachel Jones The Guttmacher Institute estimates that 14% of people who got abortions would have had a short birth interval if they hadn’t received that abortion. And one woman in the study who actually a woman from North Dakota who received her abortion and had a subsequent child within the five years, but the abortion enabled her to avoid having kids too close together. She said to us, it would have been probably the worst thing for that child to come into this world because it would never have had the support it needed. I wasn’t mentally stable for that child. I do have a one year old now and I’m able to support myself, able to support my kids and know the timing is right. Financially now it all makes sense. But to have 212 months apart without that abortion, there’s just no way life would be where I am right now if I had kept that child. When you do a study and then you find at the end when you interview the women that you didn’t need to do other quantitative study because they completely understood their circumstances. They sum up your entire study findings by themselves. There was another woman who said, it’s very, very difficult to find a job when you’re pregnant, keep a job when you’re pregnant or find a maintain a job with a baby. So she’s like pointing out the economic hardships and that it makes her financially dependent on a violent partner. And so she she summarized by saying, pregnancy is an incredibly scary thing if you cannot trust the person you’re with. And this is a woman who was denied an abortion and, you know, wasn’t able to care for a child. Her mother stepped in and took the child because she just couldn’t do it. You know, she knew that she couldn’t do it at the beginning.


Kate Shaw: You have an anecdote. Also one of the participants as well in the study. The recall correctly has an older child with cancer for whom she wants to be able to take care and focus on the transportation and the expenses of providing the full care that her child needs. And that’s her reason for wanting an abortion. And so I do think that the kind of focusing on the impacts on existing children and future children of granting women access to abortion is just such one of the many, many important aspects of this work.


Leah Litman: And that includes the consequences to children just by virtue of like the physical health and well-being of their mother, if they carry a pregnancy to term, even if they choose to place their children into adoption. As you noted, like some individuals will die due to childbirth complications. Other individuals will experience, you know, physical disabilities and physical hardships that might be long lasting, potentially permanent. You know, people’s bone density changes, you know, as a result of pregnancy and childbirth.


Diana Greene Foster: So Amy Coney Barrett suggested that the solution to this problem is that everyone should just give birth and place a child for adoption. And it’s important to note in this study, when people were unable to get an abortion, very few chose to place the child for adoption. Just 9%. And those people who did are more likely to say that they wish they could have had the abortion than the people who gave birth. And two women who we interviewed later who placed a child for adoption became pregnant again when they didn’t want to be pregnant, and neither of them chose adoption again. It’s just not an easy choice, not an easy life outcome.


Leah Litman: And on this point, I just want to come back to a little bit that you alluded to. You know, that people who obtain second trimester abortions are really not different from people who obtain first trimester abortions. This came up also at the oral argument at Davos. Julie Rickman, who was a lawyer for the clinic, had an extended colloquy with the chief justice explaining, You know, all of the reasons or at least some of the reasons why individuals might obtain second trimester abortions. And so we’ll also play that clip here.


CLIP: This case is about a ban on abortion that the state concedes is weeks before viability. And the court has been clear for 50 years that the one thing that states cannot do is to take the decision completely away from the woman until viability. Then until that point, it is her decision to make. Given the unique physical demands of pregnancy and the life altering consequences of pregnancy and having a child. Thank you. The point you made about the impact on women and their place in society, those were certainly made in Rome as well. What we have before us, though, is a 15 week standard. Are you suggesting that the difference between 15 weeks and viability, we’re going to have the same sort of impacts as you were talking about or as we were talking about in Rome? Yes, Your Honor, I believe they would, because people who need abortion after 15 weeks are often in the most challenging circumstances. As I mentioned, there are people who have perhaps had a major health or life change, a family illness, a job loss, a separation. Young people or people who are on contraception are pregnant for the first time and who are delayed and recognizing the signs of pregnancy or poor women who often have much more trouble navigating access to care. And if they’re denied the ability to make this decision because there’s a ban after 15 weeks, they will suffer all of the consequences that the court has talked about in the past. And in fact, the data has been very clear over the last 50 years that abortion has been critical to women’s equal participation in society. It’s been critical to their health, to their lives, their ability to pursue. What what kind of data is that? I would refer the court to the brief of the economists in this case, Your Honor, and it compiles data showing studies based actually on causal inference, showing that it’s the legalization of abortion and not other changes that have had these benefits for women in society. And again, those benefits are clear for education, for the ability to pursue a profession, for the ability to. Puting that data aside, if.


Kate Shaw: And then I wanted to ask actually a very specific question, which is abortion funds come up quite a bit in the stories that are told in your book and abortion funds maybe something that some people have only recently become familiar with. So can you just talk for a minute about what what role abortion funds play in the stories of the women you tell and you know, what role they might play in a post-Roe world?


Diana Greene Foster: Yeah. So abortion funds are usually private nonprofits that you can call a hotline and be given some resources to either pay for the procedure and in some rare cases also be also receive money to help pay for travel when that’s necessary. And they play a huge role right now because we have some states who actually ban insurance coverage for abortion. This is the case under federal law for people who get their health insurance from the federal government. Under the Hyde Amendment, that means everyone who works for the military, who works, who gets their health insurance or Medicaid or Medicare, all those people can’t get coverage for their abortions. And some states further pass laws that say private insurance isn’t allowed to cover abortions. So this is like making women literally pay when they become pregnant when they don’t want to. And many people who seek abortions are already poor, already below the federal poverty level. And these abortion funds are like a privately funded attempt to help people get the care they want. And really, for people getting later abortions, this is the difference between getting it and not the percentage of people who get their abortions. Do so because of abortion funds is much higher for later abortions, and that’s because people just do not have the resources to pay for that out of pocket. So it’s very important and I think there’s just no way that abortion funds will be able to mitigate the harms when half of U.S. states an abortion. So they’ve really stepped up for Texas and enabled people in Texas to get their abortions fast so that people weren’t slowed down past six weeks paying for their abortion. That is just not possible to scale when it’s half of U.S. states. And so some people will travel. It will be wealthier people who travel. Some people will order pills online. And those are people with computers and credit cards and knowledge. And then everybody who isn’t one of those, you know, minors, people with disabilities, people with low incomes, those people will likely carry pregnancies to term.


Leah Litman: What do you think policymakers on abortion most need to be educated on when it comes to abortion?


Diana Greene Foster: I mean, we talk about abortion as like political strategy or abstract ethics question and really, people need to hear from folks who are pregnant when they don’t want to be to understand the circumstances they’re facing because it’s just it’s not an abstract issue. It’s this is an issue that will affect millions of people’s lives. And we need to hear from them and not just hear from politicians about it. And when they do talk to people who are trying to take care of their existing kids and trying to create a life for themselves where they can have children later under better circumstances, then it really will guide policy. They should be much more generous support for low income parents, child care, health care, and even income supports because we claim to be a country that cares about children. But that is not how our laws are shaped.


Kate Shaw: All right. Well, Diana Green Foster, thank you so much for taking the time to talk to us today. Once again, for our listeners, the book is The Turn Away Study. It is an amazing combination of rigorous study, design and execution woven together, as Diana’s last comment made clear, with these really powerful narratives of the women in the study. So it centers women and their lives in a way that the discourse on abortion does way, way too rarely. Diana, thank you so much again for your time and for the amazing work on this topic.


Diana Greene Foster: Thank you so much.


Kate Shaw: We’ll be right back.


Leah Litman: [AD]


Kate Shaw: And now back to the show.


Leah Litman: So we are now going to be joined by Greer Donley, assistant professor at University of Pittsburgh Law. Greer is the recipient of the Hobb Law Emerging Scholar Award in Women, Gender and Law and the SLU and ASLME Health Law Scholar Award. She is also one of the three authors of the extremely topical and important forthcoming article, The New Abortion Battleground, which is forthcoming in the Columbia Law Review. The paper is written together with Professor David Cohen at Drexel Klein School of Law and Professor Rachel Rebouché, Interim Dean of Temple University, Beasley School of Law. The paper analyzes the inter jurisdictional issues that will emerge if and when the Supreme Court overrules Roe. So welcome to the show, Greer.


Greer Donley: Thank you so much for having me.


Kate Shaw: Greer Let’s dive right in. So we often hear a refrain of something along these lines. Well, if the court overrules Roe, it will just get out of the business of deciding abortion cases. And the issue of abortion will be decided in the states by the political process. But as you show in your paper and as the actions of countless Republican legislators make clear, that is just not true. Right. So you document the entire jurisdictional fights. So the fights between different states and between the states and the federal government, that will become extremely relevant if and when the court overrules Roe. Let’s start with the between the states conflicts. So one issue that may arise, the state may try to criminalize or impose penalties on residents who leave the state to seek abortions. Are there constitutional limits on states abilities to do that?


Greer Donley: Great. So yeah, I think the answer here is that there should be constitutional limits, that theoretically the due process clause, the privileges and immunities clause, the dormant commerce clause, all have threads that suggest that as citizens enjoy the right to travel and that should limit a state’s ability to legislate beyond its borders. But for constitutional rights to work. Everyone who listens to your podcast knows that you have to really trust courts to enforce them. And the big takeaway from our article is essentially that all the law in these areas is is pretty undeveloped. And that uncertainty could be exploited by anti-abortion courts who want to uphold any state’s ability to restrict abortion even outside of its borders. I mean, most of us thought that SB eight was clearly unconstitutional, and yet it is still on the books preventing abortions after six weeks in Texas, nine months later.


Leah Litman: And just on the dormant commerce clause in particular. So the dormant commerce clause is, you know, inferred from the structure of the Commerce Clause, which gives Congress the authority to regulate interstate commerce. And from that, the court has said states are therefore limited in their ability to restrict interstate commerce. But that’s a doctrine and a principle that several justices have questioned whether it even exists and the right to travel itself like. That’s not a right that’s explicitly listed in the text of the Constitution. And so if you take seriously, like what Justice Alito wrote in this draft majority opinion in Dobbs. I think that’s another reason to be worried. You know, as you wrote about so powerfully in the article about whether courts actually would enforce, you know, the constitutional rights to travel if and when people are exercising their rights to travel in order to seek abortion care out of the state.


Greer Donley: Absolutely. And as you’ve already talked about, if rose overturn as we suspect it will be, you know, some of the ground in blocks. Right. The kind of foundations of substantive due process are going to be undermined in a way that really threatens a lot of the doctrines that we’re kind of relying on to enforce, you know, the theoretical right to travel.


Leah Litman: So a related issue is whether a state could try to criminalize or impose penalties on out-of-state residents or entities who assist or facilitate an in-state resident in obtaining an abortion out of state. So this would be like the clinic in California, you know, that provides abortion care to a resident of Texas who travels to obtain one. And then Texas, you know, tries to impose civil liability or criminal penalties on the California provider or California entity. Are there any constitutional limits on, you know, state’s ability to do that? Or, you know, are those also kind of up in the air?


Greer Donley: Yes, I think the answer is actually quite similar. So, yes, theoretically, I think all the three of us. Right, the three authors or this paper, we all you know, we all believe that there should be constitutional limits to this. We think that there are reasons to look, you know, at the dormant commerce clause and and its extraterritorial principle, to think that, no, a state cannot try to kind of legislate completely outside of bits of its territory. However, there are other ways that states could try to attach and and try to regulate this conduct. Right. So, for instance, there’s this affects doctrine and there’s the possibility of using conspiracy to try to suggest, for instance, that if a state passes not only an abortion ban, but also some sort of a personhood law, right. Granting the status to fetuses that are like persons that a state could theoretically say, oh, if someone is and, you know, Missouri and decides to have an abortion out of state, they are entering into a conspiracy with other people when they travel outside of the state to essentially murder, rape a citizen, the fetus of Missouri. So you could imagine a state trying to raise these arguments. They’re novel. And, you know, again, right. The anti-abortion movement has shown us that they are willing to push the envelope. They’re willing to try everything to stop abortion nationwide. And while they seek a federal abortion ban and while they try to push for personhood and the 14th Amendment, they’re going to use whatever powers they can. I think at least some states will and some anti-abortion prosecutors will to use their state powers to try to ban as many abortions as possible and kill as many abortions as possible.


Kate Shaw: Greer, what about the other kind of end of the telescope, right? So states not seeking to punish extraterritorial conduct, but to confer some kind of protections from out of state prosecutions or liability. So to kind of extend the protections that they already have as a matter of an act of law in their states beyond their borders.


Greer Donley: Yeah. So this is kind of an exciting thing that’s been happening recently. So my, the three coauthors, we have been able to work with legislators in Connecticut to actually pass the first law of its kind, which many people are now calling the Interstate Shield Law, which would actually try to insulate their providers from any sort of out of state prosecutions or civil lawsuits. Right. So it would it would essentially kind of it’s imagining that this is going to happen and it’s trying to preempt preemptively rights, say we are going to build a fence or a wall around our providers and say we aren’t going to extradite them. We aren’t going to comply with out of state investigations and subpoenas. And they also created a clawback provision which would help with any sort of SB eight style civil lawsuit. So essentially, this Connecticut law says that if the Connecticut abortion provider is complying with Connecticut’s laws, if another state tries to attach civil or criminal liability to that conduct, that we are going to protect them. And here are all the ways that we are going to protect them. So certainly states are trying to do this. It looks like lawmakers have introduced this type of a law now in in New York, New Jersey, D.C., California and Illinois. So these are certainly laws that could help protect providers in a post real world. And it’s something that many providers are going to want to feel comfortable providing abortions for out-of-state patients who are coming to them, because it doesn’t take much for an anti-abortion extremist prosecutor to go after an abortion provider that’s providing completely legal care in Illinois to kill abortion provision in Illinois. And the second that abortion provision is chilled in blue states, we’re going to have an even. Bigger problem dealing when the blue states are the abortion providers in blue states have to all of a sudden provide abortions for, you know, people across the country. Right. They’re going to have a surge of patients.


Kate Shaw: And of course, we’ve already seen that in the states surrounding Texas. But like, it’ll just be, you know, amplified many, many fold. Are any of these states thinking about doing something similar with respect to, like, abortion funds? And of course, like as Diana was just talking about, it’s not just the providers, but there are a range of other private individuals, sometimes organizations who are sometimes assist in or facilitate the access to abortion of individuals who need abortions. So do you know if states are trying to do anything on that front as well?


Greer Donley: Yeah. So I think it’s Washington that that actually passed a law that was going to contribute to abortion funds. And I know it’s certainly something. So California is considering kind of a suite of bills that would not only be aimed at protecting providers from out of state prosecutions, but would also, you know, stop any sort of prosecution for pregnancy outcome. And I think it is also one of the one of the bills would provide abortion funds. So I do know that that’s something that certain states are considering as well.


Leah Litman: So maybe now we can talk about the between the states and the federal government conflicts. And the first issue that might come up pertains to access to medication abortion. So I guess just preliminarily, like what is medication abortion and how is it different than the abortion procedure?


Greer Donley: Great. So it’s you know, it’s really interesting that still a huge proportion of people do not know that medication abortion exists. Right. So medication abortion is a two drug regimen that allows people to end a pregnancy entirely from the comfort and safety and privacy of their own home. So the first drug in the regimen is mifepristone, and the second drug is misoprostol. So the people who are taking these drugs are essentially able to now have an abortion without ever even going to an abortion clinic. This is allowed abortions that are through the first ten weeks of pregnancy. That’s the only time in which this the FDA has approved this drug regimen. But for folks who are in that ten week window, they can have abortions that are much more convenient, that are private, that are free from the kind of harassment and violence associated with clinics. And they’re actually also a lot cheaper. So this has had, you know, a pretty extensive impact on abortion access. Of course, it’s coming right at the moment that the Supreme Court is going to really harm abortion access. This two drug regimen has been studied for decades and it has an excellent safety and efficacy profile.


Leah Litman: And I think it’s also important to note that this two drug regimen is also part of a treatment for early pregnancy loss, you know, miscarriage treatment. And one of the concerns that has arisen and, you know, in states that have restricted access to abortion and like Texas, is the consequences of those restrictions on treatment for early pregnancy loss. So NPR recently had a story about how SB eight is limiting access to medication abortion in the States. So a Texas law lists several medications as abortion inducing drugs in bars are used for abortions, including the two drug regimen that you were just discussing. But that two drug regimen is recommended by the American College of Obstetricians and Gynecologists guidelines for treating a patient after an early pregnancy loss. And pharmacists are now reticent to prescribe the medication because they might not know if the medication is being used for an abortion or to treat early pregnancy loss and miscarriage. And that is creating, again, like these serious risks to patients health and well-being. You know, if you are making it much more difficult on them to obtain the medically indicated treatment for early pregnancy loss.


Greer Donley: Absolutely. So, I mean, one thing that people may not fully appreciate is that actually every type of abortion, drug and abortion technique is used for miscarriage management and stillbirth management. Right. So it’s not only the medications, right? It’s actually mainly me.So because I think we’ll talk about this, but the FDA has imposed this burden that makes it difficult to use MFI for miscarriage. But MISO is used all the time for folks who have missed or incomplete miscarriages the same the same procedures that we talk about in the context of abortion. So aspiration Danny and Dion C are used for miscarriage and stillbirth. And we can expect to see, right? If you look at other countries that have banned abortion, the experiences of people who have missed an incomplete miscarriages is actually very different in those countries. Often people cannot access any of these drugs or procedures rate. The often the standard of care in those countries is to make people wait as long as a month to see if the miscarriage will resolve on its own before doctors are willing to try procedures that will speed up the process at great emotional and physical cost to women.


Kate Shaw: I think that’s a good segue, actually, to this question of state federal conflict around medication, abortion. Right. So as you said, the FDA has approved the use of this two drug regiment I. The other I didn’t realize. So it’s just my suppressed of all that’s used, not the two drug combination in miscarriage management, but FDA has approved at least one of the drugs for that purpose. So could a state in the face of this federal approval criminalize medication, abortion? And how might the federal courts and the Supreme Court resolve a conflict of laws like that?


Greer Donley: Yeah. So this is just like a little complicated and wonky. So I’m an FDA law person. The FDA has imposed what’s known as a REMS, so a risk evaluation and mitigation strategy on Murphy in particular. So mifepristone is actually the only drug that’s FDA approved to end a pregnancy. And because of that rate, it has kind of been singled out for special treatment by the FDA. So a REMS is theoretically a tool that is supposed to allow the FDA to approve a dangerous drug that it could not otherwise approve unless it had these particular safety controls on it. So many scholars, including myself, have been kind of screaming into the void about the fact that there was never any indication to impose a rems from ever pressed on, which is a very, very safe and effective drug, one that has been studied for decades. It is safer than many of the drugs we use all the time, like penicillin and every major organ is medical organization has kind of gone on the record to ask the FDA to remove their arms as unnecessary. The FDA has kind of loosened restrictions over time, but it still imposes restrictions that that make it harder to access this drug. But the one kind of silver lining of all of this overregulation of mifepristone is that it actually kind of opens the door for a possible legal strategy to challenge state abortion laws. And so this could happen in a variety of ways. The first many states have laws on the books right now that directly conflict with the FDA’s own findings of fact related to the safety and efficacy of Murphy. So one of them is that 19 states ban, for instance, the use of telehealth from stone, even though the FDA found in December that after study reviewing a ton of evidence that the drug can be safely and effectively used to be a telehealth and mailed directly to patients. So theoretically. Right the litigators could challenge those state laws as as in conflict with federal law. And if it’s in conflict, federal law should trump. This also comes up in the context of a post Roe world in a few ways. So one of the ways is that states, as you mentioned, are trying to specifically ban these drugs. Right, because they know that abortion is going to continue to happen even when the state bans abortion because people are going to buy medication, abortion online. So what they want to do is some states are literally introducing bills that would ban these drugs. That raises a type of preemption challenge about whether or not a state can ban an FDA approved drug, because it turns out that pharmaceutical manufacturers invest tens or hundreds of millions of dollars over years or sometimes decades to get an FDA approval. And many of them assume that that FDA approval comes with a license to sell their product in all 50 states. So there is a good argument that those laws would be preempted by the FDA’s approval of mifepristone. It’s a little bit more complicated when you start talking about a state ban that just bans abortion and then that by effect bans Murphy in particular. But it is certainly a litigation strategy we are advocating because there is a reason to think that that states cannot ban an FDA approved drug even through a general abortion ban.


Leah Litman: So there are potentially other constraints on states ability to criminalize abortion on, say, federal land or native reservations. You know, how might that work or how might that allow, you know, the federal government to permits or native nations to permit, you know, the availability of abortion access as states try to restrict that, especially given that there are also limits on the federal government or the Presidency’s ability to just open up a bunch of federal clinics. So Dianna mentioned the Hyde Amendment, which prohibits, you know, federal funds from being used for abortions in many cases. So if the federal government said we’re going to open up a bunch of like federal clinics that are run by federal officials, states could, you know, criminalize those federal officials from doing their jobs. But the federal government also couldn’t just pay a bunch of providers to make them federal officials. So like, how might that set of restrictions or conflicts work?


Greer Donley: Right. So exactly as you said. Right. The Hyde Amendment is going to prevent the federal government from spending funds to provide abortions. But one possibility is what happens if a nonfederal right, just an independent abortion clinic wants to pay the federal government. Right. So the money is going in the opposite direction to have open a clinic that would be on federal land. And so the reason why this is interesting is because there is a federal law known as the seminal Adams Crime Act that states essentially that state law will be applicable on federal law, but not if it would interfere with a federal policy or occupy a field that essentially. The Federal government has occupied. So there is this idea kind of related to the preemption argument, which is that the federal government has created a policy, at least with regard to medication abortion, that it’s safe, effective and should be available that would interfere with any sort of a state ban and that federal policy would govern on most pieces of federal land. Secondly, it’s worth noting that even if someone were to say no, that state abortion law does apply on federal land. It’s actually the job of federal prosecutors to prosecute that. So if you have a pro-choice administration, right, they could use their enforcement discretion to say we’re not going to go after those types of crimes. It’s also worth noting that civil abortion laws like SB eight typically don’t apply on federal land, because in general, the only civil laws that apply on federal land are those that existed at the time the land was given to the federal government. So these are pretty new inventions, and so they typically wouldn’t apply. This is not a fail proof argument. None of the arguments that we raise are, but it does provide an opportunity. We would just note that we’ve been kind of careful to avoid the issue of native lands just because we don’t want to suggest that indigenous peoples need to come to our rescue here. It’s not it’s not their job, but it is. The issues certainly are similar and and I’ll stop there.


Kate Shaw: So you and your coauthors have offered, both in the law of your article and then in a bunch of popular press pieces, kind of a range of federal government actions that the federal government could take right now, you know, from some of these sort of fairly complex preemption arguments, but federal land based arguments, enforcement discretion arguments, arguments around the expansion of telemedicine. So I do just kind of want to underscore that the federal government, the executive branch, is not without tools at its disposal. And I think, again, you and your coauthors have very effectively made that case. And I very much hope that the Biden administration is listening because they have pockets of authority that they could exploit right now to facilitate access to abortion, basically, as we are on the precipice of a radical transformation in access across the country.


Greer Donley: Yeah, I think we’re very interested in the idea of kind of flipping the antiabortion strategy on its head. Right. We’re entering a new world. And what does it look like when the abortion rights movement starts to chip away at state abortion bans, as the anti-abortion movement has been chipping away at the abortion rate for so many years. And so it’s not just FDA regulation of a medication abortion rate where there is so much power with the FDA. And Biden has essentially has control over the FDA about what they can do to increase access to this really important drug. But it’s also the federal government has, you know, a statute that dictates what hospitals need to do when people are having medical emergencies that could theoretically be used to force hospitals to provide medically necessary abortions. It could enforce HIPA for people, the Private Health Care Privacy Act, for people who, you know, are turning folks that have self-manage their abortions into prosecutors and anti-abortion states. There are tools of federal laws at the disposal of the Biden administration that it could use to expand abortion access. And, you know, it has an obligation to do that, we think.


Kate Shaw: Greer Donley, thank you so much for joining us and for discussing your fantastic article. Together with your coauthors, David Cohen and Rachel Rebouché. You’re doing really important work. That article forthcoming in the Columbia Law Review is the new abortion battleground. Check it out. As well as writings in Time magazine, The New York Times and other venues offering those same really pressing suggestions to a wider national audience. So thanks again for being here, Greer.


Greer Donley: Thank you so much.


Leah Litman: Now we’ll take a quick break.




Leah Litman: And now back to the show. So we are now going to shift just to wrapping up some odds and ends, court related news and culture that has developed over the last week. I’m going to keep my phone nearby in this segment just in case Sam Alito wants to call me to let me know that his five justice majority for overruling Roe remains intact. I mean, you never know, right? Like, if he’s if he’s calling Politico and The Post, we might be the next call, Kate. So so don’t laugh at me.


Kate Shaw: I think we are conspicuously not on Sam Alito’s like speed dial, but it is notable who is being leaked to and who is leaking and who is not being leaked to and who is not leaking. But we’ll.


Leah Litman: Yeah. Okay. So we’re getting a little bit ahead of ourselves in some of the discussions about the fallout from the draft leaked opinion in Dobbs. You know, there have been conversations about what could come next with a lot of people pushing back on suggestions that states might try to restrict or ban contraception and contraceptives. I again, just want to underscore that some number of people, including justices on the Supreme Court, including Republican political officials, view certain contraceptives as abortifacients and they view IUDs, intrauterine devices and emergency contraception as abortifacients. And so, like the Supreme Court wouldn’t have to say, like we’re overruling Griswold, the case, protecting the right to contraception. All they would have to do is just say, well, we’re allowing states to prohibit forms of contraception that they can reasonably believe are methods of abortion. And, you know, we already see some states kind of moving in that direction with Missouri considering bills that would bar IUDs and several contraceptive medications from being reimbursed because they view them as forms of abortion. You know, the Oklahoma Senate approving a bill requiring parental consent for birth control. Mississippi Governor Tate Reeves declined to rule out a possible ban on birth control. And, you know, just one other note on what might come next. You know, we’ve also talked about the possibility of overruling or limiting Lawrence versus Texas, which protects the right to same sex, sexual intimacy and Obergefell versus Hodges, the right to marriage equality. Overruling those cases wouldn’t require a state legislature to pass a law. It would just require there to be some clerk. You know, the next Kim Davis, who refuses to issue a marriage license and states can also pursue less frontal attacks on those decisions by, say, limiting adoption or parental rights. You know, think of what, you know, states tried to do in Pavan versus Smith, basically making it more difficult for same sex couples to be listed on birth certificates for children. So that’s all I would say.


Kate Shaw: In which you had justices. Was it just Thomas and Gorsuch or did Alito join them there?


Leah Litman: Of course Alito joined them there! Come on.


Kate Shaw: Obviously. So. You know, remember in that opinion, you had Justices Thomas, Alito and Gorsuch say really explicitly that they rejected Obergefell and would overturn it tomorrow. So that’s not like speculative in any way. Also, to the first point you made about birth control or emergency contraception, just being easily classifiable by a state legislature as abortifacients and, you know, thereby easily prohibited under this opinion, like the opinion goes out of its way to say it is the most forgiving form of rational basis review that will be applicable to any of these laws going forward. And so it’s like there’s no question that a state effort to ban those forms of contraception, if classified, as you know, these are abortifacients. That’s seems like obviously they’ll be upheld on the court’s own logic. So anyone who suggests that it is farfetched or alarmist to be raising the alarm about birth control, I think is just did not read the draft opinion or just arguing in completely bad faith. But speaking about faith. Justice Thomas appeared at the 11th Circuit Conference recently. Pretty interesting that Alito has basically turned tail and hidden. But Thomas is like just, I’m happy to stand before you, you know, and bask in the glory of what’s about to come. He does not he is not hiding, you know. But he did somehow manage in the speech to take the position that he’s concerned about respect for institutions potentially eroding. He said the judiciary is threatened if people are unwilling to live with outcomes we don’t agree with.


Leah Litman: You might say democracy is threatened if your wife can’t live with the results of an election she doesn’t agree with. But you know, I’m just drawing analogies here as I see fit. Justice Thomas continued these remarks, saying it bodes ill for a free society and it can’t be that institutions give you only the outcome you want or can be believed. You know, I’m constantly fascinated by the use of bullying here, like what it means to bully the Supreme Court. Like do they not want people criticizing them, writing op ads? Do they not want people talking about them on the news and again, criticizing them? This is like every reality show housewife who. Uses the phrase bullying to me and like you’re not being nice to me in in the way that I want. And I worry that that has rubbed off a little bit on the Supreme Court.


Kate Shaw: It is not just Alito, I guess, but now Thomas, who has not just sort of beautiful glowing skin, but also the thinnest possible skin, is like this is criticism, this is public life. You’ve signed up for this. How could this possibly be classified as bullying? And yet they all seem to be performing that anyway. But I am not sure the public is as sympathetic to this claim that the court is the real victim here, as Thomas seems to be offering. Because I did think it was really interesting that there was a Yahoo! Poll this week that made clear that Americans confidence in the Supreme Court has basically fallen off a cliff over the last 20 months, which is maybe not coincidentally, the period since President Trump installed his last nominee on the court, Amy Coney Barrett. So this was a Yahoo! YouGov poll on confidence in the Supreme Court. So they did the same poll in September of 2020 right before Barrett’s confirmation. 70% of respondents had confidence in the Supreme Court. It was like 50% had some confidence. 20% had a lot of confidence. 30% had little or no confidence. Fast forward to just this week, only 51% of registered voters down from again, 70% had either some or a lot of confidence. 50%, again, up from 30% now say little or no confidence. And if you expand beyond registered voters to include all Americans, it is an even higher percentage that say they have little or no confidence. I don’t think there has been that quick a change like a swing in public opinion about the Supreme Court since this polling has been conducted. What the public is going to do in terms of response and mobilization, I think remains to be seen. But I do think it is telling that what people are telling pollsters is that we are not confident in this institution. We just aren’t.


Leah Litman: And, you know, no surprise, given that these leaks and what seems like the justices campaign in the media, which again, we’ll get to in a little bit, just exposes them to be these extremely like vindictive, vengeful people who are, again, no different than like reality TV stars who are trying to like plant stories in the media in order to, like, get people over to their side. It’s just really something.


Kate Shaw: I’m sorry, I’m not here. So you can name check specifically because, you know, if you offer me any I’m I can’t even really just like keep quiet.


Leah Litman: I wasn’t even going to try.


Kate Shaw: Its just us. Thank you Leah.


Leah Litman: I’ll just thank you.


Kate Shaw: That was kind of you.


Leah Litman: Um, you know, to return to the leak, our investigation into the leak continues. Other people’s non investigation into the leak has also continued. So we have speculated or at least I have speculated, that the leak might have come from the conservative wing of the court, something that I think at least subsequent leaks suggest is like definitely the case. That is, like subsequent leaks have definitely come from the conservative wing of the court, but we did not name individual law clerks for the conservative justices in speculating who might have leaked because we’re not insane and wouldn’t dox people. Apparently the same cannot be said for conservative organizations focused on the judiciary. So take the Article three project, the group that was founded because Jxdn apparently wasn’t crazy enough. Jxdn is the organization led by former law clerk to Justice Thomas Carrie Severino, that literally changed its name from the Judicial Confirmation Network to the Judicial Crisis Network between administrations like it’s. This isn’t subtle people. You know, they ran racist ads against Justice Sotomayor and spent millions lobbying for the confirmations of Justice Gorsuch and the other Trump nominee is anyways. One of the individuals at the Article three project launched a Twitter thread and speculated conceded Lee. That conceded, Lee speculated this person said he had no actual evidence to support this, but speculated nonetheless about who the leak came from and named a particular law clerk by name and linked to her. Of course, it was a her LinkedIn profile. The evidence was, you know, this person clerked for two liberal federal judges, is a woman has written on reproductive rights. And, you know, her husband was in the media and worked with one of the reporters. And it’s just like, I’m sorry, but even if she had leaked it, this person is presumably smart enough not to link it to the only reporter with whom she is publicly linked. But the most important thing here is it is utterly vital that Article three project would do this, you know, endanger the law clerk, subject her to threats of physical violence and harassment and more. It is just awful. And I cannot help but mention that Article three project was founded by a law clerk to Justice Neil Gorsuch, specifically the guy Gorsuch picked. To be his clerk in his very first term. Like that’s the precedent that Justice Gorsuch apparently is like. I want him as my law clerk.


Kate Shaw: And I think we need to point out that while this completely baseless speculation about liberal law clerks being the source of this is raging, we actually do know not where the leaked draft opinion came from, but where some of the subsequent leaks are coming from. And it is not from the court’s left. Like, okay, we just need a pause and reflect on how insane it is that we now have. I can’t even keep track five six write rounds. Whatever the number is, it’s getting in the high single digits of independent, discrete leaks about the court’s decisional processes. We have a piece in The Washington Post that basically cites a person close to the court’s most conservative members reporting on what Roberts voted and said in conference in early December, namely that he planned to uphold the state law, but also to write an opinion that left Roe and Casey in place for now. So this is a person who is both reporting on what is said in conference. Right. Really usually pretty secret and is willing to be identified by the reporter as a person close to the court’s most conservative members. So these are these are conservatives we’re talking to press and again, allowing themselves to be identified as such. The rules of talking to press is that you basically need to allow yourself to be identified in a particular way, and they are allowing this. And so, again, we don’t need to speculate. We know there are conservative leaks about what’s happening inside the court happening. And yet some of these irresponsible commentators are speculating only about the identities of the liberal clerks. It’s outrageous. And I know and I want to know, is the marshal investigating these leaks to court? Hasn’t said anything about that?


Leah Litman: No. And, you know, as you suggested, the leaks have continued, because after that Post article on Wednesday, Politico reported that Justice Alito’s draft is the only opinion that has been circulated and that no votes have changed. But they also included a bunch of other statements that I wanted to highlight, like this one on the Chief Justice, occasionally voting with his more liberal colleagues, including in the decision upholding in significant part the Affordable Care Act. And I quote, there is a price to be paid for what he did. Everybody remembers it, said an attorney close to several conservative justices. There is a price to be paid for. What he did like are the conservatives overruling Roe because they want to stick it to the chief justice. Are they leaking to the press because they want to make the chief look bad? I mean, this feels like high school like.


Kate Shaw: Or like they think they’re Tony Soprano like this like this, sort of like vaguely like. mafiosi sounding threat. Like, there is a price to be paid. We will wait and seek our vengeance. Like what?


Leah Litman: It’s just unreal. And it’s like, xoxo, Gossip Girl. But Gossip Girl might be an insurrectionist who’s married to a Supreme Court justice. You know, as I was suggesting earlier, I can’t tell if these stories are like part of their comms strategy or it’s a way to own the libs or stick it to the chief. Like, I just I read that and I again could not believe that they willingly allowed that to be printed and allowed it to be printed with them identified as such.


Kate Shaw: I have to say that the political BS you were just talking about contains some of this insanity, says that there have been no other opinions circulated, and I kind of almost feel like I call bullshit on that. It just doesn’t feel. Not only is it insane that they sort of went on the record with the or not on the record, but they allowed themselves to be somewhat identified. But there is more afoot than just like everyone is quietly drafting their responses like almost three months later. I just don’t. It seems plausible to me that there are dissents, ready and waiting for a concurrence to circulate first. Like, I just think, given the speed at which Kagan and Sotomayor write, I just can’t imagine them sitting until like now on dissents. So it also seems plausible to me that there are that, given the leak of the Alito draft opinion, there are kind of sidebars happening around draft opinions that are not circulating to the full conference and the clerks of all the justices. And so the kind of nothing has happened since February 10th claim just seems to me maybe to reflect a lack of visibility into what is actually happening inside the court. So it’s somebody who actually doesn’t really know everything that is underway.


Leah Litman: Exactly. To me, that underscores that the leaks are definitely coming from the most conservative wing on the court who wouldn’t be included in these side conversations, you know, between, say, the chief justice and whoever he thinks he might be able to persuade or between, you know, the Democratic appointees and the chief justice or the Democratic appointees and anyone they think they might be able to persuade. And so, like, they’re not privy to or involved in these side conversations or like drafts being shared. Privately, you know, with other justices or conversations between other justices. And like, maybe they’re getting nervous and they’re like, is this a reprisal of Casey, you know, where Justice Kennedy, Justice Souter or Justice O’Connor kind of went out on their own and then eventually, you know, circulated an opinion that did not overrule Roe. Or is this a reprisal of the Affordable Care Act’s circumstance, which Joan Biskupic has reported that the chief justice, again, kind of was doing some conversations and like work behind the scenes. And so that’s kind of what I made of that part of the leak.


Kate Shaw: So we’re running short on time, maybe. Let’s talk for a minute about the protests outside the justices homes. Okay. So let’s let’s pivot to those. So there were protests outside of Justice Kavanaugh’s. Justice Alito’s, I think maybe also the chief justice’s homes. Right. Basically, people chanting in the streets, on the sidewalks, and a lot of people were really, really unhappy about these protests. So the Senate, in response by unanimous consent, passed a bill increasing security for Supreme Court justices, including at their homes. A rumor got started that Alito fled his house. What was the basis for that? Do you remember?


Leah Litman: I mean, it’s Politico reported that apparently the reports and this is a quote seem to be fueled by comments from conservative lawyer and author Ilya SHAPIRO, who said on Fox that he had, quote, heard that Justice Alito had been taken to an undisclosed location. But then when Politico asked him, Shapiro told Politico that he was unsure whether that was, in fact true, saying, I don’t have any nonpublic sources and I forget whether I saw the rumor on Twitter or somebody told me.


Kate Shaw: Who among us has not said something completely baseless and no idea where it came from on live television like we all do it all the time.


Leah Litman: Exactly. Exactly. I mean, I’m imagining that if some liberal commentator had admitted this and said this like that, thousands of stories that would be written about this, not to mention lawsuits. I mean, just wild. But. But the protests. Thoughts on the protest?


Kate Shaw: Yeah. I mean, I actually I’m sort of of two minds about this. I think the kind of histrionics in response to the protests are kind of ridiculous. Right. Like as a number of people have pointed out, including Chuck Schumer. Personally, I live in Brooklyn. Everyone in Brooklyn knows the protesters outside of Chuck Schumer’s home are pretty routine and not that big a deal. So public figures sometimes have protests outside their homes. Obviously, if we’re talking about, you know, things like threats of violence, I think the conversation changes entirely. But as far as I’ve seen, there has been no such suggestion with respect to any of these protests, all of which seem to have maintained respectful distances and not involved any kind of, you know, like overt threats of anything apart from expressions of views. And I also think that, you know, it’s a little rich for people to be this up in arms about these protests when the court has been very solicitous of the rights of protesters outside of abortion clinics, even in a case from the nineties, outside of the homes of individuals who work in abortion clinics, who are in absolutely no way public figures like Supreme Court justices are so gay. So all of that, I think, is fair. And still, I actually think these protests are a bad idea. Like, I think they have allowed right wing media to change the subject from the substance of the opinion itself and that even the mainstream media has given these protests outsized coverage. So I think organizing and mobilization are obviously hugely important and critical, but I personally would rather see it at statehouses, counter mobilizations, at clinics, around the barricaded Supreme Court. I think all of that would be more constructive. I think so. That is where I come down. But I understand people taking very different positions on it.


Leah Litman: Yeah. So I’m not super sympathetic to the you know, this is allowed the right wing media to change the narrative because they were going to do that anyways. And I feel like no matter what Democrats do right, it was going to be like picked apart. And like, I understand the frustration. I feel it. I mean, the justices are about to unleash state force violence on women, their bodies, their families. It’s enraging and there aren’t obvious outlets to express that frustration because in the same moment, the court has walled off itself. So they don’t have to face the verbal milieu that they have forced on women seeking abortions. The court has also allowed legislatures to partizan gerrymandering to insulate themselves from voters and public opinion or popular opinion. And it’s like you just want to do something, or at least have some avenue or outlet to make your voice heard that you want to do something. My concern is more kind of like what you started with, like the caveat about these protests. I agree these protests are completely peaceful, nonviolent, you know, etc.. But like my concern is what if you allow, right? Like protests outside of any judge’s home, like we have discussed, you know, the murder of Judge Salazar’s son. We have also discussed, you know, threats to Justice Sotomayor. And I am really concerned about, like, given the Republicans behavior at Justice Jackson’s confirmation hearings, like her safety, you know, Justice Kagan safety. Justice Sotomayor, safety, if we just like allowed unrestricted protests outside of their homes because like, I’m not worried about the protesters and they’re like pink pussy hats, like instigating violence against Justice Alito. I am really worried. How. For about like the white nationalists. Q and I and, you know, incel crowd instigating violence against the Democratic appointees. And like, if that means we need a more prophylactic rule against this, I think that rule is worth it. But like I, I think these protests are one justified, right? They have been completely peaceful. I still you know, I’m not sure like what the right strategy is like. I don’t think Dems should be in the business of telling your base like get mad but not like that. Like, I don’t think that’s great. But like I am very worried about risks to the Supreme Court justices, particularly the justices who have had the flames of white nationalism and misogyny found against them.


Kate Shaw: Such an important point. Yeah. Yeah. No, I think that’s all really right.


Leah Litman: Some Mainers wrote in chalk outside of Senator Susan Collins House, quote, Suzy, please, Mainers want HIPAA. That’s a women’s health protection act. Vote yes. Clean up your mess. And someone filed a police report about the chalk on the sidewalk, chalk that washes off. Several outlets reported that it was Susan Collins who filed the police report. I mean like for chalking in pastel like no expletives, no threats. I’m sure the free speech police are going to be very concerned about a sitting senator filing a police report about some chalked speech.


Kate Shaw: The chalk said, please, it was a polite chalk.


Leah Litman: I know. You know, I did not have a shift to the real victims of overruling Roe or the Supreme Court justices who voted to overrule Roe and the senators who confirmed them happening like within a week of the draft opinion overruling Roe leaking, but I guess this is 2022 for you.


Kate Shaw: Well, we’re doing our part to make that not the narrative, but it’s an uphill battle. We should say the Senate did fail to pass the bill that would have protected abortion nationwide this week. Manchin joined all the Republicans to vote against it. So a final vote was 4951. So I think probably important that they took that symbolic vote, but obviously fell far short of what you need in a filibuster world and even short of what you would need in a world without the filibuster.


Leah Litman: And speaking of the Senate doing things or not doing things? Where are my circuit court nominees? Where are my votes on the judicial nominees of the Biden administration? Where is my nomination for Judge Julie Rikelman or T.J. too. I know, like we are working with the Biden administration is working in a filibuster world, a world with a filibuster. But like there are things you can do. And filling all of the judgeships that are open is one such thing.


Kate Shaw: Amen.


Leah Litman: Strict scrutiny is a Crooked Media production. Hosted and executive produced by Melissa Murray, Kate Shaw and me Leah Litman. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital Support from Amelia Montooth.