Preet Bharara:

From CAFE and the Vox Media Podcast Network. This is Stay Tuned In Brief. I’m Preet Bharara. Earlier this month, the Fifth Circuit Court of Appeals ruled that a federal program providing confidential family planning services, including contraception, cannot treat minors in Texas without parental consent. The case involves conflicting federal and state laws pitting federal contraceptive care against state-created parental rights. Joining me to discuss the case is Mary Ziegler, Martin Luther King Jr. professor of Law at UC Davis. She’s an expert in the law and politics of Reproductive Freedom, a preeminent legal historian of the abortion debate, and a prolific author of several books and articles on these issues. Professor, welcome to the show.

Mary Ziegler:

Thanks for having me.

Preet Bharara:

So let’s start at the beginning. There’s a Texas law and then there’s a federal law, Title X. What does the Texas law provide? What does Title X provide? And how are they in conflict with each other?

Mary Ziegler:

Well, Title X is a family planning program, and as part of the Title X program, there are protections to ensure confidentiality for minors. And those are supported by research suggesting that minors won’t always even seek out contraceptive care they’d otherwise like to get if they’re worried that their parents or caregivers or other people will find out about it. Texas’s Law by contrast, and this is Texas’s family code, has provisions requiring that parents be notified. So this case really emerged when a conservative Christian parent, Mr. Deanda took the position that Title X violated his rights under the state provision, and also he also argued his constitutional rights as a parent.

Preet Bharara:

So I guess it’s confusing for a lay person, if he alleges there’s a conflict between a state law and the federal law, and if we remember our constitution and our constitutional law, that federal law is the supreme law of the land and a conflict is resolved in favor of the federal law. What’s the controversy here?

Mary Ziegler:

Well, I think Mr. Deanda was arguing first that there was, I mean, in some ways that there was no conflict, right? That you could interpret Title X as permitting this kind of parental involvement or even required parental involvement. And then if it didn’t, he argued that Title X itself violated the Constitution, right, the Supreme law of the land because he as a parent had a right, he argued, to be able to shape his children’s access to contraception. So this was a sort of unusual kind of case. It’s interesting too, it was brought by Jonathan Mitchell, who’s a famous, now famous attorney who was the architect of Texas SB-8, the Texas Bounty bill. Also the attorney who represented Donald Trump in his case before the Supreme Court on disqualification from the ballot in Colorado. So this isn’t simply just some sort of random case. This is part of a, I think a broader campaign to change the rules governing contraception in the United States.

Preet Bharara:

So explain what is the scope of a parent’s right to monitor and oversee the healthcare of their child. Isn’t that a pretty significant right? And how does it interact with the principles here?

Mary Ziegler:

So generally speaking, parents have rights to what are often thought of as care, custody and control. And the Supreme Court has been clear that these constitutional rights are not absolute. Obviously, there are limits. For example, parents’ rights can be constitutionally terminated, the state can intervene to protect children under certain circumstances using its own what’s called parens patriae power. It’s sort of acting in loco parentis, and parents have the right under some circumstances to direct their children’s medical care, even when the government disagrees with some of the medical decisions that a parent would make. Here, Mr. Deanda was arguing that he had a right under the Constitution and under Texas law to consent to his children receiving this kind of contraceptive care. The Fifth Circuit never actually got to that claim, although Justice Matthew Kaczmarek, who some listeners may be familiar with from the Mifepristone litigation that was argued before the Supreme Court recently, did. So this idea that contraceptive access for minors may be unconstitutional will likely continue to circulate, I think regardless of what happens ultimately in this Deanda case.

Preet Bharara:

What about this principle that appears to have been relied upon related to what you were just talking about where the Fifth Circuit held that there’s no preemption really, because there’s a presumption against preemption of state laws that govern domestic relations. Is that further to the point you were making a second ago?

Mary Ziegler:

Yeah, I mean, so this is, Mr. Deanda, I think, and his lawyer understood that if there was a conflict between federal and state law and there was no constitutional get-out-of-jail free card that Mr. Deanda was going to lose. So his lawyer, Jonathan Mitchell simply said, “Well, it turns out that Title X actually permits these rules requiring parental involvement, even though it doesn’t seem to, even though circuit courts had never held that.” Even very conservative circuit court judges like the late Robert Bork, who was famously nominated the Supreme Court by Ronald Reagan all didn’t think that you could harmonize the federal law and state law in such a way that someone like Mr. Deanda would have a right to intervene when his children seek contraceptive care.

It’s probably also important to note that in this case, Mr.Deanda’s children never actually sought out contraceptive care. There was no sign they were ever going to seek out contraceptive care. So this is like a lot of the cases we’ve been seeing lately, sort of a swing taken by conservatives to see how far they can get in the US Supreme Court, not necessarily a sort of live issue they’re trying to resolve.

Preet Bharara:

So just further to that, how does someone who doesn’t even allege or provide any evidence that any of his children have been implicated in any of this, have sought contraception or been provided contraception or any kind of family planning services, explain to a lay public how a person like that even gets into court based on even the most basic understanding of the concept of standing?

Mary Ziegler:

Yeah, it’s hard to understand. So I mean, the way the Fifth Circuit put it is that Mr. Deanda has this right under Texas law and it’s just sort of floating around, this right, and if this right is being violated hypothetically, even if he isn’t attempting to exercise it and there’s no fear it’s going to be violated, the Fifth Circuit said, the mere attempt to undermine his right was enough to give him standing. That’s not usually how standing works. Usually you need to actually have a real stake in the litigation. You have to have a real injury that you can trace to something that the person you’re suing did. And here, essentially the way the Fifth Circuit put it was, “Well, the federal government is trying to mess with Mr. Deanda’s rights. They’re not succeeding and he doesn’t actually have an injury. But simply the possibility is enough.” And this, again, is sort of part and parcel of something we’ve seen from the fifth Circuit in other cases recently. Essentially, we’ve seen lots of conservative plaintiffs being held to have standing in settings where we wouldn’t expect that to usually be the case.

Preet Bharara:

Mr. Deanda has three children. Would the logic of his argument extend to somebody with no children on the theory that if I’m planning to have a child, this law violates my eventual right to have parental control with respect to his yet unborn children?

Mary Ziegler:

That’s a good question. I mean, I imagine for the Fifth Circuit, if someone…

Preet Bharara:

It might be sufficient.

Mary Ziegler:

Yeah, it may not be, right, I think for the Fifth Circuit, I would strongly guess that if somebody had a pregnant partner or was themselves pregnant, they would probably think that person would have standing. If someone has no pregnancy, no children, that might be too speculative. I think he would need to strike the Fifth Circuit as a parent, which would certainly be the case if there was a fetal life in utero, I would guess, but maybe not if there’s nothing like that. But who knows, right, because I mean, we’ve seen some pretty speculative arguments for standing convince the Fifth Circuit in the past.

Preet Bharara:

But what’s good for the goose is good for the gander. Won’t there be circumstances in which this expansive view of standing and giving almost anyone with any speculative arguable harm to come into court might allow people on issues that are not conservative to come into court? Or will there be a sort of gerrymandering of this doctrine?

Mary Ziegler:

I don’t think so. Generally, if you take a kind of broad view of the history, when the Supreme Court is less conservative, progressive movements tend to favor broader approaches to standing because they want the Supreme Court to have a say in more of the issues of the day. And conversely, in scenarios like today, you have a pretty divergent picture where in lots of major struggles, conservatives are losing in ballot initiatives. They’re losing in elections, and they’re looking to redirect struggles towards federal courts that have been reshaped, of course, by former President Trump.

So now you see essentially conservatives advocating for broad theories of standing and progressives arguing against that precisely because progressives don’t want to be in federal court right now. So this kind of ideological asymmetry tends to steer who’s in favor of broad understandings of standing and who isn’t. I think we saw yesterday in a Supreme Court case involving Mifepristone, a lot of the conservative Supreme Court justices saying some of these conservative theories of standing just don’t hold water, even though of course those justices are conservative. So it’s not clear that the kind of approach taken in Deanda will fly. It may be that the Supreme Court is going to start putting its foot down more on some of these expansive standing arguments.

Preet Bharara:

So do you think the Supreme Court will eventually hear this case from the Fifth Circuit?

Mary Ziegler:

It may well, the court has, I mean, has shown an appetite to get involved in culture war cases. It has two abortion cases before it this term, which is extraordinary. This sort of old way this happened before Dobbs was that the court would maybe take one abortion case once every seven or eight years, six years, maybe. To have two in a term suggests the court is interested in intervening in issues related to this, and Mr. Deanda’s case may strike them as an appealing one for that reason. It also notably doesn’t require the court to wade into the most divisive issues around contraception or abortion, like whether a fetus is a constitutional rights holding person or whether the court should overrule its precedents on rights to birth control. It would allow the court to kind of give wins to conservatives that don’t go that far. So that may be another reason the Deanda case is appealing to some of the justices on the court.

Preet Bharara:

That’s interesting. That makes it more appealing as opposed to less appealing because it wouldn’t be a sweeping?

Mary Ziegler:

Yeah, I mean, we’ve seen some of the justices, for example, Justice Brett Kavanaugh in Dobbs, the decision overruling Roe, essentially saying, “Well, the Constitution is neutral on abortion.” And, “Oh, by the way, the court is not going to be overruling its precedents on contraception or same-sex marriage.” So it seems reasonable to assume that Kavanaugh may be willing to reverse course on those conclusions, but probably not immediately, right? This is probably going to be a longer game to persuade him in many of that. So making progress, if you’re a conservative on an issue like contraception or abortion is going to mean finding some other strategy and like the one in Deanda where you’re looking for example at parental rights, whether those are statutory or constitutional or at the rights of minors as opposed to the kind of full frontal attack on a precedent like the ones granting rights to contraception.

Preet Bharara:

And so if the Supreme Court takes this up, given what you’ve said about Justice Kavanaugh and the others, will the Deanda case be affirmed, do you think?

Mary Ziegler:

I don’t know. I mean, I think it may again come down to standing. So on the one hand, we’ve seen the court embrace expansive theories of standing. There’s a case called 303 Creative in which you had a conservative website designer who was refusing to create custom sites for same-sex marriage. It was pretty clear that that website designer had never been asked to do so, but the court still found she had standing, conversely, recently at oral arguments around Mifepristone, you had some doctors saying, well, in theory if patients take Mifepristone, some of them might end up in our ERs with complications, and then we might have to be forced to treat them and therefore violate our consciences.

And the justices in that case seemed to think those people didn’t have standing. In other words that the harms were too speculative. So I think whether Mr. Deanda would win or lose may again come down to this question of whether this is just a put-up job where he doesn’t really have an injury, or in fact the court is willing to kind of follow him down this trail of inferences to the possibility that he has rights that might be violated.

Preet Bharara:

Could you explain further the concern you’ve expressed previously about the continuing viability of a constitutional right to contraception, notwithstanding what you quoted from Justice Kavanaugh and the Dobbs decision, what’s the level of concern you have and that we all should have about that right?

Mary Ziegler:

Well, I think there’s sort of two levels of concern. The first just involves definitional concerns. So, many conservatives believe that drugs commonly marketed as contraceptives are, in fact, abortive agents. And this includes for many conservatives, IUDs, emergency contraceptives, even the birth control pill. So one possibility I think we need to be alert to is the possibility that without any new laws banning contraception, that you have conservatives simply applying existing bans on abortion to drugs most of us think of as contraceptives, and we’ve seen the Heritage Foundation and other conservative groups that have authored Project 2025, a plan for another future Republican president, likely Donald Trump, to say, for example, the morning after pill is what they call the week after pill and is actually an abortifacient. So that’s a possibility that I think is very real in terms of threats to contraception. There are also, of course, threats in the sense that we’ve seen concerns raised about minors or the safety of contraceptives by conservatives.

I think we’re going to continue to see those arguments pressed and we’re going to continue to see some conservatives say that the logic the Supreme Court used to overturn Roe V. Wade would seemingly apply to the cases the courts decided about rights to contraception too. If our rights derive from tradition as it was understood in 1868, it was pretty much precisely at that moment that for the first time in the United States history, states and the federal government were criminalizing access to contraception, which hadn’t been really much regulated before. So if the court is serious that that’s how we define our rights under the 14th amendment, there’s no reason that we would have a right to contraception either. So while I don’t think that’s an imminent event we should expect at the Supreme Court, I do think a lot of the ingredients are there for that to happen down the road.

Preet Bharara:

I have to ask you the question. You say imminent and you say down the road. Can you put a timeframe on either of those terms?

Mary Ziegler:

Probably not. I mean, I wish I was a psychic instead of a historian because I could retire probably a lot sooner, but it’s hard to say. So the reason I was hedging is one, I don’t know, but two, it depends on who gets elected in 2024. So if Brett Kavanaugh or Amy Coney Barrett continue to be the kind of median or deciding Supreme Court justice, then I think it’s going to depend on, it may be 5 or even 10 years because you’re going to have to give Kavanaugh the opportunity to not look foolish for having said he wasn’t going to do any of these things.

Conversely, if Donald Trump is elected again, and some of the justices, for example, like a Justice John Roberts or Elena Kagan were to retire and be replaced by someone more conservative than Justice Kavanaugh, Justice Kavanaugh would stop mattering in quite the same way, and you could have this sort of outcome happen sooner. So assuming the current composition of the Supreme Court, I would say more like 5 or 10 years at a minimum, but we can’t assume the current composition of the Supreme Court in one direction or another, which is why the 2024 election, one among many reasons, does the 2024 election matters on these issues.

Preet Bharara:

I don’t want to let you go without asking you about a case of great consequence that you’ve already mentioned, and that’s the Mifepristone case that was argued in the Supreme Court last week. A lot of people have suggested based on reading the tea leaves from the oral argument that it’s going to go in the progressive direction. What’s your reaction to the oral arguments and what’s your prediction? Dare I ask again?

Mary Ziegler:

Well, I think here I’m pretty confident I can make a prediction. So the court seemed very skeptical that the plaintiffs in this case had standing. It’s not hard to see why. So the plaintiffs said essentially, “Well, maybe people are going to take Mifepristone, and some of them are going to have complications, and some of them might land in the ER, and some of those might be the ERs where we’re working, and we might be working there then. And it may be that other doctors who don’t have objections to abortion won’t be available to see those patients. So maybe we’ll have to do it and maybe then we’ll suffer an injury.” And the Supreme Court justices looked at this and said two things. One, maybe not, right? This is speculation. There’s no injury you’ve shown. You’re just guessing something could happen. And number two, if your injury is about conscience, as Justice Gorsuch asked, why isn’t the solution that you just go and ask for a conscience-based objection?

Why is the solution that you need to take a drug away from every patient in the United States to protect your own conscience as a doctor? So the justices seemed pretty unsympathetic. I think maybe with the exception of Justices Alito, maybe Thomas, I’m not even confident about him. Again, it’s not going to be some kind of resounding progressive victory. It’s going to be the court saying these people don’t have the right to be in court. We also, interestingly saw both Justices Thomas and Alito signaling that they had a new argument they were interested in down the road that was mentioned in passing in this case, which was the idea that FDA didn’t have the authority to permit Telehealth abortion because of a nineteenth-century law called the Comstock Act that conservatives say makes it a federal crime to mail or receive any abortion-related item.

Justices Thomas and Alito seemed to believe this argument, and they seemed to telegraph that they would be open to hearing about the Comstock Act as a federal ban in the future. So I think this case is going to be a win for the FDA. It’s not likely to be much of a win for the FDA. I think it’s quite likely the Biden administration is going to lose the other abortion case we’re going to hear about in about a month. And it’s likely that we’re going to see, even in this Mifepristone case, the conservative Justices laying out the red carpet for conservative litigants to bring other even more sweeping claims to them in the future.

Preet Bharara:

So the outlook for people who care about reproductive rights is…

Mary Ziegler:

Well, complicated, and I think also contingent. So this is another scenario where, I mean, people often tell you voting matters, and this is a scenario where that’s just unambiguously true. It will matter to who’s on the federal courts, and it will matter even to what cases the federal courts are going to consider. We’ve seen conservatives say, for example, “Well, maybe the Supreme Court doesn’t want to get into this theory about whether the Comstock Act is secretly an abortion ban. So what we need is Donald Trump to be in the White House to force the court to do that, because if Donald Trump just starts going to federal court, having the Justice Department prosecute abortion providers or pharmaceutical companies, that would force the Supreme Court to get involved and weigh in on the Comstock Act.” So again, I think a lot of the answer to this is going to depend on what happens in ballot initiatives in elections, on what happens to the composition of state courts, on what happens to the composition of Congress, and of course on who’s in the White House in the first place.

Preet Bharara:

I think that’s a good note to end on. Your vote counts. Your Vote Matters. Professor Mary Ziegler, thanks so much for being on the show.

Mary Ziegler:

Thanks for having me.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director, is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai, and the CAFE team is Matthew Billy, Nat Weiner, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.