• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss the Supreme Court order rejecting a request to block Texas’s new restrictive abortion law from going into effect. They also discuss the workings of the Court’s shadow docket, and the proposed legislation that would codify Roe v. Wade.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

Up Against The Mob, CAFE

ABORTION

U.S. Constitution, Article I, Section 8, Clause 3 – Commerce Clause

U.S. Constitution, Article I, Section 8, Clause 18 – Necessary and Proper Clause

14th Amendment to the U.S. Constitution

18 U.S. Code §248 – Freedom of access to clinic entrances

Women’s Health Protection Act of 2021

Texas S.B. 8 – Texas Heartbeat Act

Whole Woman’s Health v. Judge Austin Reeve Jackson, U.S. Supreme Court, order & dissents, 9/1/21

Shelby County v. Holder, U.S. Supreme Court, opinion, 2013

Gonzales v. Raich, U.S. Supreme Court, opinion, 2005

United States v. Lopez, U.S. Supreme Court, opinion, 1995

Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, U.S. Supreme Court, opinion, 1992

Roe v. Wade, U.S. Supreme Court, opinion, 1973

Wickard v. Filburn, U.S. Supreme Court, opinion 1942

“Statement from Attorney General Merrick B. Garland Regarding Texas SB8,” DOJ, 9/6/21

“Commerce Clause,” Cornell Legal Information Institute

“Supreme Court leaves Texas abortion ban in place,” SCOTUSblog, 9/2/21

“The Deviousness of Texas’s New Abortion Law,” The Atlantic, 9/1/21

University of Texas/Texas Tribune poll, 3/2021

Melissa Murray tweet, 9/2/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce? How was your Labor Day?

Joyce Vance:

I’m well. It was nice. It was low key with COVID infection rates rising. We stuck close to home and ate some really amazing barbecue from Rodney Scott. How about you?

Preet Bharara:

It was good, restful, although I was preparing in earnest for the conversation we’re going to have today.

Joyce Vance:

Well, and this one feels especially serious to me. I thought it was hard to walk away from it even when we were hanging out with friends briefly.

Preet Bharara:

Yeah, absolutely. Before we get to that, we do have an important CAFE announcement. Our friend, our colleague Elie Honig has a new six-part podcast about what? The mob, the mafia. It’s called Up Against the Mob. It premieres or launches, or whatever the word is you want to use, tomorrow, Wednesday, September 8th. You can get it wherever you get your podcasts, Up Against the Mob with Elie Honig.

Preet Bharara:

And also by the way for CAFE Insiders, there’s a special insider component every week, a bonus. So please check that out also.

Preet Bharara:

So we only have one subject to talk about today. And I’m sure folks can guess what it is. Supreme Court action with respect to this Texas abortion statute has been occupying everyone’s time. And I guess where we might begin is with a very specific concrete and well-considered question from a listener.

Preet Bharara:

This is from Diane in Minnesota. “Dear Preet, Texas, WTF.”

Joyce Vance:

Nailed it.

Preet Bharara:

And what’s kind of interesting the way we set it up last week not knowing exactly that this would come down is you explained to the world what the shadow docket is. And that provides very helpful background and we can re-explain it to what happened in the Supreme Court with this Texas Law SB8. You want to recap the shadow docket and how that’s an important issue.

Preet Bharara:

And by the way, when we get to it, with respect to what the Supreme Court did in allowing the law, at least for now, to remain in place that bans abortion essentially at week six of a pregnancy, Justice Kagan, in her dissent in what I saw some professors have said is the first time ever that a Supreme Court Justice, in an opinion, has made reference to the shadow docket. What the hell is that thing?

Joyce Vance:

So, when I think about the Supreme Court, I think about the formal start of court in October, cases that the court decides to hear. They’ve had full proceedings in trial courts and in federal courts of appeals. Sometimes they come from state courts. But there’s this full history of briefing and a record. And then the Supreme Court hears argument.

Joyce Vance:

And then the justices debate among themselves and they form sides, and an opinion issues. And that opinion details the court’s reasoning so that we can understand the decision in that specific case, but also so that the lower courts can apply that law and that reasoning. They’re bound by the Supreme Court’s decisions. They need to know what the law is so they can apply it in future cases.

Joyce Vance:

That’s how the court and how our legal system is supposed to work. The shadow docket, despite the really great name it’s got, is not nefarious. There’s nothing inherently bad about the shadow docket. It’s a case management process that the court uses for handling aspects of cases.

Joyce Vance:

Well, it’s deciding whether it will hear them as part of this larger process. And so often, for instance, they’ll hear emergency appeals in capital cases, prisoners making last-minute appeals will be decided late at night, so the aptly named shadow docket.

Joyce Vance:

Here with the Texas abortion case, we see another aspect of what goes on on the shadow docket. And it’s decisions about statutes or practices that are being challenged as unconstitutional. And one of the parties says to the courts, “Please, enter a stay. Block this law from going into effect while legal proceedings about its constitutionality are in process. It might take a year to decide whether or not this law is constitutional. Let’s preserve the status quo. Let’s not let anything change until the courts can make that substantive decision.”

Joyce Vance:

That’s what the Supreme Court declined to do here. It’s what they would typically do. It’s what they have done in many other situations like this. Here, they let the Texas law go into effect while the litigation is ongoing.

Preet Bharara:

And one of the issues that a court has to decide in determining whether or not to maintain the status quo, issue a stay, whatever phrase you want to use, is will there be irreparable harm to the party asking for the status quo. This may be a terrible analogy.

Preet Bharara:

Suppose you and I, Joyce, have a dispute about who owns a patch of property that has a house on it. And you claim that I sold it to you and I claim that I didn’t sell it to you, but you’re claiming ownership of the house. You don’t like the house and you bring a bulldozer because you’re going to raise the house to the ground and build a different house that you want.

Preet Bharara:

We would go to court. There would be a lawsuit between you and me about who owns the property. But in the meantime, I would go to court and ask for a stay, ask for the status quo to be maintained so that I’m not irreparably harmed by your destroying my house. It doesn’t do me a whole lot of good if the court allows this dispute to go unresolved.

Preet Bharara:

And while it’s trying to resolve a dispute, you knocked down my house, build a new one and then I win in a year. That’s what they call a Pyrrhic victory. I mean, maybe I get my property back but I’ve lost my house. Is that a terrible analogy?

Joyce Vance:

No, I think it’s really good. And it’s important that people have maybe the legal language that goes with this. So the process is called seeking a preliminary injunction. And if you’re the party that wants that injunction, wants to keep the law from going into effect or wants to keep Preet’s house from getting bulldozed, you’ve got to prove four things.

Joyce Vance:

You have to prove to the court that you have a substantial chance of success on the merits. You have to prove that there will be irreparable injury if you don’t get the stay. You have to talk about balancing equities. And then the final requirement is showing that the public interest is served by entering the state. Those last two are a lot more squishy than the first two.

Joyce Vance:

Really what courts tend to focus on is this notion of substantial chance of success on the merits and irreparable injury.

Preet Bharara:

So, to carry on the analogy a little bit further, let’s get back to what happened in the Supreme Court and what the statute in Texas purports to do. The Supreme Court in this case has allowed the house to be bulldozed while they litigate over who owns the property. That’s sort of the rough, weird parallel metaphor that we’re using here.

Joyce Vance:

Yeah, I think that’s right.

Preet Bharara:

So what is the statute in Texas do? People have probably heard about it a lot in the news and maybe you’ve read about it. It essentially says that abortions, after there is detection of a fetal heartbeat, cardiac activity in the fetus, not allowed. There are no exceptions for rape or incest.

Preet Bharara:

The statute makes clear that every doctor is supposed to ascertain whether or not there’s a fetal heartbeat. And if there is, that procedure is unlawful. Or if the doctor fails to perform a test to detect a fetal heartbeat, the abortion procedure is unlawful. The statute does make clear that if the physician performed a test for a fetal heartbeat as required and did not detect one, then this law doesn’t apply.

Joyce Vance:

This part of the statute is not unusual. Other states have passed what’s called a Fetal Heartbeat Bill. Alabama, for instance, has passed one. And they’ve always been clearly unconstitutional and haven’t gone into effect. So Texas went one step better.

Preet Bharara:

To pause for a second, remind everyone, I know we’ve been through this before. That is on its face unconstitutional based on existing Supreme Court precedent, Roe v. Wade, the Casey case, because why?

Joyce Vance:

Because women have a right to abortion at least in the first trimester. And in the second trimester, they have a right that can’t be substantially burdened. So, these fetal heartbeat bills because they cut so early are clear violations of Roe v. Wade. Whether you agree with Roe or not, they clearly violate it.

Preet Bharara:

And you were saying, notwithstanding that, states like Alabama have such bills. How can that be?

Joyce Vance:

So it’s very interesting because when these bills are passed, for instance, the Alabama Bill, the state legislator who proposed it actually said the quiet part out loud. She said, “We’re passing this bill because it contradicts Roe, because we want a case that will go to the Supreme Court that can be used to challenge Roe.” And of course, it was Mississippi that was successful in doing that. That’s the Mississippi case Dobbs that will be heard in this upcoming term in the Supreme Court.

Preet Bharara:

Well, successful in doing what? Not in overturning Roe. You mean in getting to the court?

Joyce Vance:

Exactly. They’re setting up a vehicle that they believe the Supreme Court can use to overturn Roe.

Preet Bharara:

So, one point of confusion I guess a little bit when the statute in Texas SB8 says that it’s against the law for there to be an abortion pretty much after the sixth week, people in their mind are saying, “Well, if something is against the law, it must be criminal. And it can be enforced with a penalty of jail.”

Preet Bharara:

As we discussed the contours of this law, it will become clear that this has been a very, very clever and orchestrated and in my view, unprincipled gambit to get around existing precedent and to use legal procedures to upset the status quo. This statute is very, very clear for quite cynical strategic reasons that no criminal prosecution can follow from breaking this law.

Preet Bharara:

In fact, the law states on its terms in Texas, the requirements of this subchapter shall be enforced exclusively through private civil actions. And it says, “No enforcement of this subchapter may be taken or threatened by the state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee.”

Preet Bharara:

So, it makes it clear that under no circumstances, a violation of the statute which purports to protect life if you take the point of view of the pro-life people who have advocated for it, because once there’s a heartbeat, it’s a human life and it must be protected. But the best you can do is have private citizens sue. The penalty is about $10,000. We can get to the penalty in a moment.

Preet Bharara:

Did it strike you as odd? Just on its face as a principle matter that folks who are advocating a pro-life position and think that this is tantamount to murder don’t want a prosecution, don’t want the district attorney involved, have a fairly low amount as far as penalty is concerned.

Joyce Vance:

I think unprincipled is a good way of characterizing that.

Preet Bharara:

That’s a very short answer.

Joyce Vance:

It was a short answer. I mean, it’s a short answer for this reason. None of us are stupid. We can all look at this statute and see it for what it is. It is a deliberate effort to permit this law to go into effect exactly in the way that the Supreme Court did. I think the only way to characterize it is evil genius.

Joyce Vance:

It is deeply unprincipled. It is in no way consonant with the notion of people who believe that abortion is murder, but they’re willing to just let the public handle it as opposed to pushing for criminal sanctions. And it’s very unsettling. I mean, I’m just going to say that as a woman, this law becomes very unsettling because it tells you that people will stoop to no ends to violate your rights if they believe they can find a disingenuous unprincipled way to do it that they will do it.

Joyce Vance:

And so I don’t want to go too far into that “the sky is falling” sense because I don’t think that we’re there yet. I think we still have a functioning legal system in this regard in some ways, but it is a very disquieting moment particularly for women.

Preet Bharara:

No. And it’s intended to have a chilling effect even if there’s no criminal penalty. And so, explain maybe a little bit further why it’s so clever. And why it achieved its goal, why the gambit achieved its goal of upsetting the status quo at least in Texas for the time being. Who gets to enforce this prohibition?

Preet Bharara:

As we said, not a district attorney, not a government official. And that’s for very strategic reasons which we’ll amplify in a moment. But so who can? “Any person, other than an officer or employee of a state or local government entity in the state may bring a civil action in this regard.” And then outlines against whom civil actions can be brought.

Preet Bharara:

What’s very interesting to me, and you and I’ve been talking about this over the last week, is that it makes clear that you can sue, in connection with a planned or achieved abortion, the doctor. It also says anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion which includes reimbursing the costs or paying for the abortion.”

Preet Bharara:

And one thing that’s interesting to me is one of the people, you would think antiabortion people would want to hold accountable, is the person who asks for the abortion, who often pays for the abortion. And I think by definition, in any circumstance, under the legal phrase aiding and abetting, would be responsible for the abortion. Why, Joyce, are mothers not explicitly targeted in the statute? Shouldn’t a lot of the ire be directed towards mothers if you are a pro-life person who believes that this is murder?

Joyce Vance:

There is no legal reason to exclude women from the reach of this statute. If what you’re really interested in doing is tamping down on abortions, going almost but not quite so far as to criminalize them, then it’s logical that you would include pregnant women as targets for these civil lawsuits. And again, I’ll put my cynical hat on and say that this statute was designed to accomplish a certain mission without generating too much public outrage. And perhaps, folks felt like the optics were bad on including women in these statutes.

Joyce Vance:

Something else, Preet, that we haven’t talked about is the technical language of this statute and just how far it reaches when we’re talking about doctors or Uber drivers or people who provide money to women for paying. The technical language of the statute reminds me very much of criminal law when you’re trying to parse a statute to figure out what the mens rea, the state of mind is that someone that you’re prosecuting has to have.

Joyce Vance:

This is very analogous to that criminal situation although the statute is civil. And that provision that you just read starts by saying that you can sue civilly anyone who knowingly engages in conduct. But then the second clause of the statute says, regardless of whether the person knew or should have known that the abortion would be performed.

Joyce Vance:

And what that means is you have to know that you’re giving somebody a ride or know that you’re giving the money or knowing that you’re giving them care because they’ve had some sort of a medical procedure. But you’re on the hook for these Texas civil lawsuits even if you didn’t know an abortion was in the offing.

Preet Bharara:

Just to go back to the point, why is this clever for the non-lawyers’ benefit? Ordinarily, it’s the case that something like this is enforced by a DA or by some government official. It makes it easier for people who are opponents of the statute to say, “Hey, this thing is unconstitutional.” You have Roe v. Wade and other cases who make it clear as you and I’ve been discussing that it’s unconstitutional.

Preet Bharara:

We’re going to bring a lawsuit against the enforcement authority which is identified, as I said, often is some government official. And you go to court and you win. In order to avoid the almost certain failure of the statute to be allowed to operate, they decided to engage in this crazy unprincipled, I think, disingenuous scheme.

Preet Bharara:

It’s not because the proponents of this bill and the opponents of abortion, in no way, think that in a good and righteous world, it should be random private citizens acting as mercenaries and bounty hunters spying on their neighbors and bringing specious lawsuits over and over and over again. They don’t think that at all. It’s because it becomes very difficult now as a legal matter. When you go to court, to prevent the statute from taking effect, who do you sue? Because there are unnamed and unknown and speculative individuals in Texas who have the right to sue but they haven’t done so yet.

Preet Bharara:

And so, you’re in a catch 22. Going back to the metaphor of my house, imagine it’s the case that it’s not a dispute between you and me, Joyce, an identified party who claimed that you bought the house. But there’s some generalized right for somebody to sue for a piece of property that has been owned by someone else for 10 years or more, maybe this is getting too elaborate and convoluted.

Preet Bharara:

And so, I don’t want my house to be lost and I think that law is terrible, but who do I sue? Because I don’t know which neighbor, I don’t know which person is going to claim that they own the property and bring the bulldozer to wreck my house. So, that’s the way in which lawyers are arguing about it. That’s the way in which the Supreme Court is having a debate about it because they’ve taken responsibility away from state officials and given them to private, unknown officials. And it worked.

Joyce Vance:

It did work. And to tie this back into our conversation about preliminary injunctions, this statute has that especial virtue in the eyes of opponents of abortion of being designed to circumvent the preliminary injunction process. The whole goal here was to put the statute into operation while the legal proceedings were ongoing because you have, as you’ve said, this uncertainty and this chill on abortion rights.

Joyce Vance:

Whether this statute is ultimately constitutionalized or not, if the Supreme Court does a gut row in this coming term and this statute survives because of that, from now through that point in time, women have effectively lost their abortion rights in Texas. And that’s what’s so unprincipled about this.

Preet Bharara:

And there’s this debate. And people are going back and forth on social media and in debates that are happening around the country this week about whether or not Roe was overruled or not overruled. And people’s anxieties are high. I’m not sure that’s the right way of thinking about it.

Preet Bharara:

There may come a point. It seems more likely than not now that there will come a point, either in this case or the other case that you mentioned, Dobbs, where at least five members of the Supreme Court will explicitly overrule Roe. But for now, as you say, it’s effectively overruled for real people in Texas until this case proceeds even further.

Preet Bharara:

And this is what I want to ask you about. This is the thing that drives people crazy about lawyers and the law. It is unequivocally true. Even the conservative justices on the Supreme Court would agree. Even the people who drafted the statute would agree, I think they would have to agree, that the statute on its face without the explicit overruling of Roe is unconstitutional. And it violates and abridges a woman’s right to an abortion, as laid out by long-standing precedent.

Preet Bharara:

If that is so, how can it be the case under our legal system, and clever application of unprincipled statutory language and enforcement mechanisms, and the weirdness of the shadow docket, and the way that preliminary injunctions work and all that legal mumbo jumbo that you and I try to simplify and explain every week? If it’s on its face unconstitutional, everyone has to agree that that so, how the hell does this happen?

Preet Bharara:

Why can’t justices just say, “You know what, before we take away this right that everyone acknowledges is there, let’s preserve the status quo until we get further briefing. Let’s not bulldoze Preet’s house until we’ve had a chance to really look at it and examine it.”

Joyce Vance:

Four justices here would have protected your health, including the chief justice who explicitly talked about this notion that you have to preserve the status quo in a situation like this. There’s a certain amount of legal sophistry in these arguments. And you and I have talked before about whether or not it’s appropriate for parties to draft laws in order to take advantage of what they believe is the jurisprudence of the current court, whether or not they’re drafting a law that’s constitutional.

Joyce Vance:

And that’s really what’s happened here. Knowing that this emergency appeal would be heard on the shadow docket by this newly reconfigured court, Texas legislators decided the timing was right. And conservative legislators have been stocking laws that further constrict abortion all along. That’s nothing new. That’s been going on, to a large extent, unsuccessfully, because of Roe and Casey.

Joyce Vance:

But here, the Texas court seized what they believed was a newly reconfigured Supreme Court with the addition of Justice Amy Coney Barrett. And that likely makes all the difference in this outcome. This would have been a court that would not have engaged in this level of legal sophistry saying, “Oh, they sort of throw their hands up in the air. Gee, we’ve never seen this before. Private enforcement, what’s a court to do? We can’t say that the plaintiffs have a significant chance of success on the merits because this is so innovative.”

Joyce Vance:

And that’s really what the court is doing here. I don’t think it’s something that helps the law, that helps the court in terms of how the public perceives its integrity. This is really a sad moment in American legal history.

Preet Bharara:

It just occurred to me. When I was a first year law student at Columbia, we had a curmudgeonly … our contracts professor and people who have taken contracts maybe have read his book on contracts. His name is Marvin Chirelstein. And he would say, “People approach the law in the same way sometimes people approach dreams.”

Preet Bharara:

I’m sure I’m not going to do this analogy justice. And he says, “You’ll be dreaming and you’ll be walking down the street. And you’ll look around and you’ll see, well, the buildings are upside down.” That’s peculiar. Buildings are not supposed to be upside down. And the dream is a metaphor for the law, like the legal sort of world.

Preet Bharara:

And you’re walking down the street and the buildings are upside down. And you think to yourself, “The building shouldn’t be upside down.” And then you think to yourself, “Oh, well, it’s a dream so I guess it’s okay because in a dream, sometimes the buildings are upside down.” And his admonishment was, no, that’s the moment when you say, “Wait a minute, whether it’s a dream or not, the freaking buildings are upside down.”

Preet Bharara:

His point, I didn’t really get it. I’m like, “I don’t know what the hell Martin Chirelstein is talking about.” The point is you can’t get so wrapped up in this idea that the legal world is so detached from reality in a waking life. That it’s like a dream that things have to make sense. Buildings shouldn’t be upside down in a legal regime.

Preet Bharara:

And here, again and again, we are showing that the way the Supreme Court dealt with this, notwithstanding the clear unconstitutionality of the law, the buildings are upside down. And it makes no sense.

Joyce Vance:

I think that’s right. You have to get so far into the weeds on this one talking about, well, the Supreme Court thought that the plaintiffs, the abortion clinic providers and the doctors who sued in Texas, that they didn’t identify the right defendants. And that’s how we end up saying, “Well, constitutional protections don’t really exist.”

Joyce Vance:

It seems so otherworldly. And so like the buildings are upside down, that anybody who looks at it from the outside says, “This is wrong.” There is a constitutional protection on the books that somehow gets defeated by legal technicalities. And we should have a legal system that functions more in the light of day than this.

Preet Bharara:

In reality. We live in reality. When you state the proposition the way that you and I have stated it, it is unconstitutional. Everyone agrees. There’s a process by which over time and with proper deliberation and brief writing and oral argument that you can change that reality. You and I are against changing that reality. But a lot of people are in favor of it.

Preet Bharara:

But that’s different from what’s happening here. And can I ask a more sort of real world question?

Joyce Vance:

Sure.

Preet Bharara:

Why on earth did the five justices do this? There’s always this debate about whether or not they care about political effects and they care about the reputation of the court, and they care about the institution. And maybe that’s a reason why John Roberts who presumably is pro-life is on the other side of this as a procedural matter.

Preet Bharara:

But they must have known how much of an uproar would be created. And how much harm would it have done to their long-term goals for abortion or anything else to simply do the normal common sense, expected right thing at this moment and uphold the status quo. And later, fully, openly, transparently, not with respect to the shadow docket, make whatever decision they’re going to make about Roe.

Preet Bharara:

I actually don’t understand why they did it this way, understanding how it would be received.

Joyce Vance:

So, if you’re a member of the community, it looks like this court is fulfilling its destiny. And they’re making no bones about it. It’s sort of like Kafka’s gone. If you declined to give a preliminary injunction in Texas, well then we probably know what you’re going to do when Dobbs comes in front of the court next term. And the issue of whether Roe and Casey continue to be good lies squarely in front of you.

Preet Bharara:

Well, you know what’s interesting about that and the fulfillment of destiny … Here’s my other question. There is a subset of people in this country including legislators in Texas who have been praying for the moment where Roe would be either formally overruled or effectively gutted. And we pointed out that’s happened in Texas.

Preet Bharara:

And you would think that conservative commentators and anchors on Fox News would be celebrating and having parties because this is what they’ve been looking for year after year after year. And yet, not only are they not celebrating. The Supreme Court, in its opinion here, and other commentators are basically saying, “Hey, this is not a big deal. It’s just procedural.” Even though as you and I know, procedural disputes and decisions have impacts on substantive rights.

Preet Bharara:

And it seems to me that some people very smartly pointed out the reason there’s not a celebration is even though the subset of people in this country who are ecstatic over this gutting of Roe v Wade, they are worried about the backlash. And they want to minimize this victory. And it is a victory for them.

Preet Bharara:

Mary Ziegler wrote in The Atlantic something very smart that the majority in this case warned people not to overreact. And she writes further, “That the Court pretended this wasn’t about the fate of abortion rights tells us that the justices may be ready to strike down Roe v. Wade, but,” this is the important part, “but are less prepared for the havoc such a decision would wreak.” And she also writes, “The justices who allow Texas’s law to go into effect hardly seem to love the thought of that backlash.”

Preet Bharara:

There was a report that Fox News barely covered this decision. You would think it would be music to the ears of a lot of listeners who think that the right to abortion should not be permitted. What’s going on here?

Joyce Vance:

If you had a dog out in front of your house with the bulldozers prepared to knock it down and that dog was chasing cars, that’s what happened to Republicans in Texas. They caught the car and they’re not quite sure what to do. Are they going to create a backlash at the polls in 2022 and beyond because of this? This is maybe not the moment that they thought it would be.

Preet Bharara:

Antiabortion activists want abortion to go away, but they don’t want the political strife and fuss that goes along with it. But it’s endlessly fascinating to me, not just the way that this bill was structured, that doesn’t come close to holding people responsible for abortion in the way that these people think that they should be held accountable. They learn to be highly, highly unprincipled, disingenuous and strategic with respect to how they crafted the law because you’re playing the long game.

Preet Bharara:

And then at the same time are not doing too much to celebrate because the more you celebrate the thing that you’ve been fighting for for decades, the more political opposition you’re going to get. It’s very odd that they’re pretending this is not a big deal. They’re accusing people on the other side, prochoice advocates of hysteria. There’s no hysteria here. It is just the fact that Roe v. Wade has been gutted at least for now in Texas. And it’s a harbinger of the ultimate decision on Roe.

Preet Bharara:

I want to say as a caveat and you can join my caveat or not. You never know what’s going to happen when they deal with the substantive case. But boy, it is not hysteria to think the handwriting is on the wall.

Joyce Vance:

No, it’s not. And just like in Shelby County versus Holder, the Supreme Court gutted the Voting Rights Act without actually tossing the whole thing out. I wonder if we won’t see an outcome like that in Dobbs where Roe will be essentially gutted, but Roe will technically still be good law.

Joyce Vance:

Maybe when you’re looking at the Texas’ six-week ban as a possibility, the 15 weeks in the Mississippi Law in Dobbs which permits abortion up until 15 weeks, maybe that starts to look better, maybe that’s part of the strategy here. And maybe that will at least be part of what we see this notion of, “Gee women, you should be grateful that we’re not enforcing the six-week ban and that we’re only going to do what Mississippi did in Dobbs.”

Joyce Vance:

I have a lot of worry and a lot of anxiety about where this one heads. And I appreciate so much, Preet, that you’ve pointed out the notion that no one who was principled who believed that abortion was murder would be happy with the Texas statute. There’s a certain amount of cynicism here that it’s appropriate for us to engage in. And I don’t really think we need to give folks the benefit of the doubt when they engage in this kind of legislation.

Preet Bharara:

Going back to the unsigned court order.

Joyce Vance:

One paragraph unsigned order.

Preet Bharara:

One paragraph unsigned order. Just further, what we were talking about a few minutes ago, through the downplaying of this decision is procedural as if that means there’s nothing to see here. There’s nothing to worry about. And there are no rights being abridged. All of which is wrong.

Preet Bharara:

The court, the majority, the five justice majority says, for what it’s worth, and then you should tell folks about the dissents, “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.” And they say this because they have to, but it’s interesting that they chose to emphasize it. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s is law, and in no way limits other procedurally proper challenges of the Texas law, including in Texas State courts.”

Preet Bharara:

Fair?

Joyce Vance:

So, our friend Melissa Murray I think had a great tweet. Melissa said, “Procedural rules and rulings have substantive implications. The courts procedural ruling,” she put that in quotes, “allowed a law that is substantively unconstitutional to go into effect effectively negating Roe.” And I think that’s a great way of talking about the dissents here.

Joyce Vance:

There was actually a dissent written by each of the four justices in the minority. I’m very interested in Justice Sotomayor’s dissent and Justice Kagan’s dissent. They’re the two goalposts on this field. Sotomayor is the outrage part of the spectrum. She calls the decisions stunning. She points out that the justices have buried their heads in the sand to the denial of abortion rights.

Joyce Vance:

Kagan takes a different approach though. She focuses on the shadow docket and the notion of hypocrisy. And she views this as a very hypocritical ruling by the majority. I think it’s interesting that Kagan, as you pointed out when we started this conversation, becomes I think the first justice to ever acknowledge that the shadow docket is being discussed at least among legal academics by that name.

Joyce Vance:

And she talks about how it has become emblematic of too much of the court’s decision making which is particularly problematic, because now the court is using the shadow docket in a way where it’s telling the lower courts, “This is our binding precedent, you have to follow it.” But there’s no written opinion, no disseminated reasoning for those lower courts to follow.

Joyce Vance:

And so between those two dissents, we get a good sense of both outrage but also practically that this is not the way the law works. What did you see in the dissents that you like the most?

Preet Bharara:

Well, the one I liked the most, I thought was interesting that everyone chose to go on record with a signed opinion. What’s interesting to me is that Justice Roberts wrote and probably disappointed a lot of conservatives. And I think back to the vote, as people may remember I was in the Senate and worked on the confirmation hearing of Justice Roberts. And this seems to be consistent with the way he talked about modesty, judicial modesty, and that everyone will agree with what I’m saying.

Preet Bharara:

But in his opinion, he says in less strident language than the justices you just mentioned. He says very simply, “I would grant preliminary relief to preserve the status quo ante,” meaning before the law went into effect, “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

Preet Bharara:

Meaning this crazy wacko arguably BS scheme to have individual sue and government officials out of the process, that’s kind of wackadoodle, sort of interpreting what the Chief Justice is saying. That’s kind of wackadoodle. Why don’t we take a moment, not do anything crazy, not let that go into effect until we determine whether or not it is in fact wackadoodle?

Preet Bharara:

That seems to be eminently reasonable and should be reasonable to people who are either pro-abortion, antiabortion, pro-Roe v. Wade, anti-Roe v. Wade. I think it’s just inexorably logical to do what he said and the other justices said should be done, as we discussed at the beginning.

Joyce Vance:

He picked up Justice Breyer and Justice Kagan who joined in this dissent. Justice Sotomayor did not join. And although I think that you’re correct that this is eminently the right restrained judicial approach in this sort of a situation, I wonder if the reason Sotomayor didn’t join is because of the last clause of that sentence that you read where Roberts was willing to consider whether a state can avoid responsibility for its laws “in such a manner by creating this private action mechanism.”

Joyce Vance:

It seems to me that Sotomayor has gone on record by saying, “No way, no how, can’t do it.”

Preet Bharara:

So, I guess, Joyce, we should talk about what happens next. This case will continue to proceed. The Dobbs case will continue to proceed. There are actions being suggested and look like they will be undertaken by the Congress. And we should remember, this reminder to everyone, even when Roe actually gets struck down, that doesn’t mean that abortion becomes illegal everywhere. It means it goes back to the states.

Preet Bharara:

And in some states like California and New York and others, the right to abortion will continue to be a right that people have. And in other states like Texas and Louisiana and Alabama, it won’t be. So what is the potential solution to this? Well, some people are advocating for and I think Nancy Pelosi, the Speaker of the House, has said there will be a vote on National Federal Legislation basically codifying the standards of Roe and giving everyone the right to an abortion, whatever the local state law is.

Preet Bharara:

Smart idea?

Joyce Vance:

Always beneath the surface of the abortion issue is whether the Supreme Court chose the right standard in Roe versus Wade, because the standard for when a woman’s right to abortion exists unrestricted or unburdened is this notion of viability. And of course, viability is a moving target because of advances in medical technology. Viability is likely earlier now than it was when Roe was decided.

Joyce Vance:

So, one of the challenges that Congress will face as it takes up legislation is whether it should carry forward the viability standard in Roe or whether there’s a better way to try to enshrine abortion rights in law to codify them into law. It’s interesting to note that Judy Chu, the California Congresswoman, who is the sponsor of this legislation, has been offering it in every term since she was first elected to Congress. She now has north of 200 cosponsors in the house.

Joyce Vance:

It seems possible that this legislation will in fact pass in the house. But the question that I have is whether or not it could survive constitutional muster. It obviously will get litigated in the courts. And the question will be whether or not Congress has a sufficient constitutional basis for enacting it.

Preet Bharara:

Yeah. Another reminder to folks is in our constitutional democracy, Congress can’t just do anything it wants just because you get a majority. We have rights and privileges and immunities guaranteed to us in the Constitution, we are not China. And there were a lot of debate in litigation if our federal government did what I was describing to my children the other day China appears to have done, which is ban the use of video games by young people during the school week, I think one hour on weekends, something like that.

Preet Bharara:

We don’t give Congress that authority. There has to be some basis for the Congress to enact a law. And the proposed legislation, the Women’s Health Protection Act of 2021 goes out of its way in various components of the statute to set forth the basis the Congress has. And to me, at first blush, it seems like there are a lot of bases for Congress being able to exercise its power.

Preet Bharara:

Not all statutes have findings. When I was drafting statutes for my boss, Senator Schumer, back in the Senate, sometimes depending on the degree to which you thought there was going to be litigation about the statute later, you would have findings and purpose. In this case, Congress for among other reasons wants to make clear to the public why they’re engaging in this action and also to provide courts with the basis to uphold the statute.

Preet Bharara:

There’s a lot of language in the statute about what the basis is including, “Abortion services are essential to health care and access to those services is central to people’s ability to participate equally in the economic and social life of the United States.” That can end up being important.

Joyce Vance:

Commerce Clause.

Preet Bharara:

Commerce Clause. It also says, “Reproductive justice requires every individual to have the right to make their own decisions. Reproductive justice is a human right.” 14th amendment.

Preet Bharara:

In fact, the Women’s Health Protection Act of 2021 explicitly says, and not every statute has this, but explicitly says, “Congress has the authority to enact this act to protect abortion services pursuant to,” and it lists a whole bunch of bases including, as you mentioned, the Commerce Clause of Section 8 of Article 1 of the Constitution. Its power is under the 14th Amendment. And then also its power is under the Necessary and Proper Clause of Section 8 of Article 1.

Preet Bharara:

To me, the Commerce Clause is interesting because I’ve always been interested in the Commerce Clause. It is the hook by which Congress enacts all sorts of legislation that seems to be directed to local activity. But there is a long body of law, although there’s been some seesawing on this point, a long-standing body of law in the Supreme Court that says, “Congress has an interest in engaging in regulation and restriction of activities that could have some impact on interstate commerce.”

Preet Bharara:

Fair?

Joyce Vance:

Fair. And if you’re the Solicitor General of the United States, and you’d be a good one, Preet, and you’re in the position of having to defend this bill after it’s passed … I thought I was at least going to get a laugh out of that. You’re very sober today.

Preet Bharara:

I think my parents would have preferred that I become a surgeon general.

Joyce Vance:

Wouldn’t they all? If you’re the Solicitor General of the United States and you’re in the position of having to defend this law in courts after it passes, you are likely very pleased to see the detail with which this statute has been crafted, and the notion that you’ve got alternative possible bases for upholding it. But this one is really about the Commerce Clause.

Joyce Vance:

The standard here, Wickard v. Filburn is the case that we all studied in law school. This is the case about the Ohio farmer who harvests 12 acres more of wheat than he’s entitled to under the Agricultural Act that was in existence at that point in time. And so when they come after him for the violation, he says, “Wait a minute, you can’t touch me for those 12 acres. Those 12 acres were for personal use. They’re not part of the federal standards.”

Joyce Vance:

And the federal government tells him, “No, we actually can prohibit you from doing this because your 12 acres of wheat had an effect on interstate commerce.” And the standard that the Supreme Court uses is whether or not private action has a substantial effect on interstate commerce. That’s the reason we see the language that’s used in this act which talks about the impact that abortion rights have on women’s ability to interact in the national financial and commercial environment. It’s a very clever-drafting mechanism.

Preet Bharara:

And historically, depending on the statute, it’s been very generously applied, meaning a pretty insubstantial effect on interstate commerce, almost an incidental effect on interstate commerce has been considered often enough to uphold the statute.

Preet Bharara:

And I’ll give another example in a moment. But here, you can think of all manner of effect on interstate commerce including the insurance markets, the medical markets, hospitalizations. I mean, we already have anecdotal evidence that the mere passage of SB8 in Texas is causing an influx of people who are seeking abortion services in Oklahoma. So that’s not even talking about an effect in interstate commerce based on regulation of something interstate.

Preet Bharara:

That is actually something that is affecting interstate commerce and the provision of health services.

Joyce Vance:

I was a prosecutor in 1995 when the Supreme Court passed Lopez. The Supreme Court reversed a provision federal prosecutors had used to enhance penalties when people who were engaging in criminal conduct in school zones, mostly selling drugs, also were using guns. And this prohibition on firearms in school zones led to enhanced penalties.

Joyce Vance:

Federal prosecutors assumed that that law would pass the scrutiny in the Supreme Court. But the court said no, that despite the rubric that said that these laws were necessary to keep communities free of violence, which had an impact on business and commerce, the court said that that was going too far. And they declined to expand Commerce Clause jurisdiction into this area.

Joyce Vance:

But when we look at the notion of this law here, this law that would guarantee abortion rights to women, I don’t know about you, Preet, but I can think of a lot of other sorts of statutes that have less of an impact on commerce that the court has said are okay. Do you think that that’s fair?

Preet Bharara:

Yeah, absolutely. And we relied on some of them when we engage in federal prosecutions. As people may appreciate, generally, a robbery or a burglary is not something prosecuted by the feds. That’s a local crime. You would think, “Well, how could you be justified in bringing a robbery case federally?” And there is in fact a statute called the Hobbs Act Robbery Statute that I used to bring cases from time to time.

Preet Bharara:

And something as slender as the fact that the target of the robbery was an establishment that was selling beer or alcohol from out of state. Even though it’s incidental and tangential to the core of the crime, that was enough to satisfy the interstate commerce element.

Preet Bharara:

So, generally speaking, with ups and downs, as you’ve described, it’s been considered something that doesn’t have to be super-substantial and gigantic for Congress to have the authority to enact a law based on it.

Joyce Vance:

And for instance in 2005, the Supreme Court in Gonzales v. Raich, the marijuana case, decided that activity that was happening in a very limited basis, intrastate, inside of one state did impact commerce. And on that basis, they upheld federal regulation of purely intrastate marijuana production.

Joyce Vance:

It seems to me that that’s not a bad analogy for this case where purely intrastate restrictions on abortion have obvious impacts on interstate commerce. As you’ve said, sending women to other states and we know that that’s going on. I mean, it’s pretty unbelievable to me that Texas women will come to Alabama now at least for a limited period of time to access abortion, but obviously, their impact on interstate commerce.

Joyce Vance:

I think this statute passes constitutional muster in an objective sense. The problem is it goes up to the same court who’s just made this decision on the Texas statute.

Preet Bharara:

Yeah. And Chris Hayes, among other people, made a clever remark. And Chris Hayes is the MSNBC host. And he tweeted a couple of days ago, “I don’t want to be a Debbie Downer, but yes, Congress can pass a law codifying Roe,” as you and I have said.

Preet Bharara:

And then he goes on to say, “And then watch what a Roberts court does to the Commerce Clause to strike that down.” Sort of sounding the alarm that will the tail wag the dog? And will justices be inclined to engage in overly-restrictive reading of the Commerce Clause when it comes to the issue of abortion services? I guess we’ll have to wait to see.

Preet Bharara:

But maybe not because although there’s I guess a decent chance of this act being passed in the house, the likelihood in the senate seems quite not high. That’s a better way of saying that. That’s a better way of saying low. Quite not high, Joyce?

Joyce Vance:

Well, I think quite not high although 2022 is looming. And the typical wisdom, of course, is that the party that’s in power has losses in the midterm elections. I’m curious as to whether this decision on abortion may change that calculus. Women are more than 50% of the population. Of course, not all women favor abortion rights. But it will be interesting to see what impact this has on the midterm elections, if any.

Preet Bharara:

Well, just further point, another I forgot to mention this issue of where the country is in abortion. But let’s start where the country is in abortion. Majority of people believe that there should be some guaranteed right to an abortion. But if you look at Texas itself, I don’t know how great this poll is, but this is a University of Texas, Texas Tribune poll from March of this year.

Preet Bharara:

And I’m a northeasterner so maybe I have a misperception of what other people’s views are on the country. But according to this poll, in Texas, only 13% of people said abortion should never be permitted. Thirty-one percent said the law should permit abortion only in case of rape, incest or when the woman’s life is in danger.

Preet Bharara:

And then, what is typically been described as a pretty red state, 38% say women should always be able to obtain an abortion as a matter of personal choice. And in the overall split of voters who labeled themselves pro-life versus pro-choice, 40% pro-life, 41% pro-choice. So, this is not necessarily a super-duper popular thing even in Texas.

Joyce Vance:

It’s not. And with demographic shifts in population, this is this issue we’ve discussed in other contexts where the legislature remains in conservative control. Perhaps, that gets institutionalized because of gerrymandering after new districts are drawn following this last sentence.

Joyce Vance:

While the population itself is shifting and the population in Texas is shifting faster than some earlier estimates had suggested it would, it’s interesting because population shifting to be majority, minority doesn’t necessarily mean that all of those people are progressive or liberal. And in Texas, many people who are of Hispanic heritage are Catholic and may not support abortion rights.

Joyce Vance:

Nonetheless, there is I think an underlying issue here that drives the political issues as much as the legal ones as to whether the legislature is representing the views of Texas voters or not.

Preet Bharara:

So that’s Congress. We’ll see what happens. There are other agencies of power in our government including one that you and I both serve, the Department of Justice. And there’s been a lot of talk about, “Well, what can the Department of Justice do?”

Preet Bharara:

And in the last couple of days, Merrick Garland, the attorney general has made some statements. These things have some teeth, Joyce, or no?

Joyce Vance:

So, I’m sympathetic to the position that the attorney general is in because he can’t just create his own authority to take action in Texas. His ability to act is constrained by existing law. Part of the evil genius of the Texas provision is that until people begin to file civil lawsuits against people who have aided and abetted women in obtaining abortion, there’s really nothing for an as applied challenge.

Joyce Vance:

So, Garland, I think has done what he believes is the best thing he can do at this point in time. He’s made a statement generally indicating support for women. He said that he will look aggressively and use his authority aggressively. And then in a statement that I think has drawn ire from a lot of people, he pointed to a statute that he has indicated that he will use where it’s appropriate. And that’s the FACE Act.

Joyce Vance:

The FACE Act is a provision that’s been around for a long time. And it guarantees freedom of access to clinic entrances, whether it’s protesters or people who sometimes will engage in violent efforts to keep women from entering clinics. This is the statute that prosecutors can use. It has criminal provisions. They are relatively modest. A first violation of the statute is a misdemeanor. It becomes a felony for a second violation.

Joyce Vance:

But there’s also a civil provision which would permit the attorney general to seek an injunction. And it doesn’t require actual action. For instance, he could go to court and enjoin a group if he learned that they were going to attempt to block clinic entrances.

Joyce Vance:

So, I understand the folks who have said that this is sort of a toothless tiger because there’s nothing for him to do right now. I do think it’s important that he’s on record saying that this is an area that DOJ has an interest in and will be following carefully to see if their statutory jurisdiction permits them to take action.

Preet Bharara:

Look, he’s announcing a power that already exists that some people may not know exists. So, there is a showing the DOJ has concern. And aside from that, he also said … I mean, this is another one of those things that we always joke, good-natured liaison, our friend Lisa Monaco’s plate, that ever-enlarging plate, to see if there are other actions that can be taken.

Preet Bharara:

Maybe it’s the case that once there’s an enforcement action under this SB8 Law in Texas, that one of the litigants who gets involved is the Department of Justice. We’ll have to wait and see on that.

Joyce Vance:

I think that’s right. And to put sort of a fine point on that, in these situations, there’s often jurisdiction for DOJ to bring some claims and for private litigants to bring other claims. That’s why it matters that we have people like Lisa Monaco and Vanita Gupta at the Justice Department, people who can create partnerships with the civil rights community, and who will be interested in working to protect these rights.

Joyce Vance:

So, I don’t want to minimize what Merrick Garland says here. I think it’s a signal that DOJ will get engaged when and if it can.

Preet Bharara:

Anyway, lots of balls in the air with respect to this, with respect to other things. We’ll be back next Tuesday. Please send us your questions to letters@CAFE.com.

Joyce Vance:

I’m sure you’ll have lots of them this week and we’ll do our best to answer them.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.