April 14, 2023 • 46 mins
Showtime's The Circus' Mark McKinnon explains the details many people miss about the MAGA base of the Republican Party. The Washington Post's Caroline Kitchener details the horrifying aftermath of pregnant women's lives in a post-Dobbs world. Plus, Yale Law Professor Scott Shapiro outlines what happens next after a rogue TX judge tried to nationally ban medical abortions.
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Speaker 1 (00:00):
Hi, I'm Molly John Fast and this is Fast Politics,
where we discussed the top political headlines with some of
today's best minds, and national security secrets are being leaked
in video game chat rooms. We have an intriguing show
today the Washington Post. Caroline Kitchener talks to us about
the horrifying reality of post role America. Then we'll talk
(00:24):
to Yale law professor Scott Shapiro about all of the
legal fuckery with the Supreme Court. But first showtimes the circuses.
Mark McKinnon, Welcome to Fast Politics. Mark Well, glad to
be on the discard. We're delighted to have you. I
(00:45):
feel like this week was I mean, I don't understand
what Republicans ever get sick of losing? Apparently not. They
just clawing their weight to the bottom. I'm not sure
we've reached you. You have spent your whole life, or
not your whole life, but some of your life working
in Republican politics. Did you watch what happened in Tennessee?
(01:10):
Would the two Justin's removed for several days in abject horror?
I mean, did you see how this would just completely
bite them? Of course? And it's funny Molly, because this
is in the category of great minds thinking alike. In
the middle of all that, I've said, oh, man, I'm
going to write a column about how the Republicans are
(01:30):
now that they've cut the car the cars running over
them between guns and Tennessee and Kentucky and abortion and Trump.
And I pitched that to our favorite friend, David's friend,
and he said, well, sorry, buddy, Molly just wrote that. So,
I mean, it's shocking to me to watch the arc
of the Republican Party since the days of compassionate Conservatism
(01:54):
and how it has gone from the Tea Party to
MAGA to It's something that I don't wreck ignize at all.
And to your point, ultimately, everything that's being done it's
just appealing to a smaller and smaller and smaller base
of a diminishing demographic. So whatever short term games they're getting,
(02:14):
which aren't a lot, it's a long term disaster for
the Republican So I was thinking about this because I
had coffee with a guy called John de la Volpi.
I think, does all the polling on millennials right? Exactly?
Does all this polling on millennials and you'll be surprised
to hear that millennials are not that interested in Donald
(02:38):
Trump's belief that the election was stolen from him, and
in fact, they are quite interested in climate and other
real things. And I want to talk to you because
you were involved in Republican politics around the time when
Republicans still offered voters something and I wondered, if you
were in charge now, if you had to sort of
(03:00):
do a post mortem on these smoking emperors that will
be the Republican Party when Trump is done with it,
what would you offer. Well, you almost have to start
from scratch. I mean, there was a post mortem done
in twenty twelve which sort of laid out a battle
plan for Republicans to grow the party. And that means addition.
That means adding voters, not subtracting voters, and that means
(03:24):
appealing to the de LA vote voters, to a whole
cross section of voters who are growing not diminishing as
the MAGA voters are, which is a highly white and
old demographics. So yeah, I mean across the board you
just look at. First of all, I was drawn to
the Republican Party in George Bush because of the appeal
(03:44):
of the idea of compassionate conservatism. There's nothing compassionate left,
So I mean much less is driving away Republicans like me,
much less not attracting independence or even some conservative Democrats
like George W. Bush did or others. So it's just
in a death spot. And you know, the worst thing
that can happen to the Republican Party is Donald Trump.
And I mean think about this. He's first of all,
(04:07):
twice impeached, and he lost the twenty twenty election, not
just the presidency. He lost the presidency, he lost the House,
he lost the Senate. That hasn't happened in a hundred years.
Grover Cleveland was the last person to manage that. And
now he's once indicted. But it's very possible that by
this time next year, I'd say even probable, that he'll
(04:29):
be running as a four time indicted, twice impeached and
once lost the House, the Senate, and the presidency. That's
a heck of a load to try and carry across
the finish line. And it's a dream scenario for Democrats
because I like Biden and I think he was the
right guy for the right moment. I don't like him
running for reelection, but Donald Trump may be the only
(04:50):
guy that Biden could be. So I just want to
ask you, I mean again, not to get into the
nuances of the campaigns yet, and especially not on the
Democratic side, because while Trump is running, I agree, well,
Trump is running. Well, the only game in town is Trump,
I wondered. I had read something about this idea that
(05:10):
the more attention Trump gets, the worse he does in
this sort of general population, and I think that's how
the Biden administration is playing it too. Sure. I mean,
it's the old maxim that we used to say, don't
catch a falling knife. Let it fall, let him catch it.
It's his knife. And yes, there's no appeal to a
guy who's being indicted to that's not going to expand
(05:34):
his voters. I mean, he was short eleven million, right
according to everybody but him, And if you're short eleven
million in twenty twenty, you got to have eleven million
plus in twenty twenty four. And all that's happening right
now is not going to appeal to one single voter
of those eleven million, I assure here, But here's my question.
(05:54):
Why can't Republicans explain to us the machinations here? Like
why is no one. I mean, is it just because
they didn't get a blowout in these last elections that
they've decided to continue down this road of Trump is
um or do you think it's because the base really
controls a party or do you think it's some third
option the base controls the party. I mean, thirty percent
(06:16):
is not a majority, but it's a lot of voters,
and that's enough voters to control the primaries. And every
time that somebody stands up and takes a shot at
Donald Trump, they face the wrath of the MAGA faithful.
And that's, like I said, twenty five to thirty percent
of that Republican base and that's enough. That's enough to
cause a lot of pain. And that's why you see
(06:37):
everybody just laying down. And they're damned if they do
and damned if they don't. But I've said for a
long time that the only option for a resilient or
any future at all in terms of winning the presidency
and majorities in this country where Republicans is to take
Trump off the windshield and put them in the rear
view of mirror. And until then they're going to get
that thirty percent of the MAGA voters or control those primaries.
(07:00):
And as I've watched this, what happens is it's just
sort of, for lack of a better chart, where maybe
it is the right term, it's just dumbing down everything completely,
so that in these primaries increasingly you have these sort
of purity tests. You have to say the election was stolen,
you have to agree with all this Trump stuff, which
just takes you out of consideration for general election voters.
(07:22):
And it's just getting worse and worse. But the appeal
is not going up, it's going down. And so if
you're somebody running in a Republican primary, I mean, Arizona
is a good example. This sheriff now is going to
run in the Republican where for the Senate, and King's
going to out carry Lake. Carry Lake. And by the way,
Carry Lake is my favorite example because for anybody who
(07:43):
watched that election last cycle, she had all the candidate
skills that you would want as someone who does campaigns
or works with candidates. She's just a great communicator, fast, smart,
and should have won that election going away. And yet
she goes into a room full of potential voters Republicans,
(08:04):
and she says something along the lines of who here
supported John McCain, and a bunch of people raise their hands.
She said, get out, and it's like, are you kidding me?
You're telling John McCain voters to go to hell? Well
guess what they're going to tell you to go to hell?
And you are not going to be in the United
States Senate. So that's the klin of thing. And so
(08:24):
she's going to have to out sheriff the sheriff now
and it just keeps spiraling downward and down. But that's
what DeSantis is trying to do with Trump right now. Yeah,
he is, and he was supposed to be the Golden Boy,
and he hasn't had a lot of luck the last
month or so. And it's a good example of what
happens when you take him on. I mean, he did
so lightly, man. I think Chris Prittie is the only
(08:46):
guy who's really taken a two by four to him.
But Christie's not even in the ratio. I mean, I
just am curious, though. Do you think that running to
the right of Donald Trump on policy would be hard
pressed to even name a Trump policy makes any sense. No,
you're not going to get to the right of Trump.
(09:07):
That's just not going to work. And I think the
only way to do it is just do what Christie's
doing and just go ahead and take the two by
four to Trump with the expectation, which I think is
a realistic one and a practical one and a probable
one that one indictment rough to the brutal three wow
four unsurvival. At some point that's just going to be
(09:30):
too much and it's going to break his back at
some point. It's like if you ever read the book
or some of the movie The Man Who Would Be King.
But I mean the sort of whole notion of it
is as soon as they see it bleed, you're screwed.
And as soon as people, even the magabase see that
Donald Trump is mortal and he bleeds, they could evaporate overnight.
So this is a very interesting thing that I have
(09:53):
never heard anyone say. And so I want you to
say more about this. Well, I just don't think that
you're gonna outflank Trump on the right. That's just not
going to work, right, And so listen, everybody's afraid of
making the maga faithful mad Well. The thing that people
respond to, I think a Trump responds to is strength, right,
(10:14):
So go up and just get a rock and be
David and thruff it and you're gonna get a lot
of heat immediately from the base. But over time you'll
be seen as the guy who was willing to take
on the king, and as I said, at a certain point,
over time. And it's going to take time. But when
you get sounded with the second and the third and
(10:35):
the fourth indictment and you're the guy that's been slugging
him and suddenly he buckles, you're going to be the
guy standing in the ring. So here's my question for
you with this. Do you think there's a moment where
the Magabasse says this is enough. I just have so
much trouble imagining that one day they're like because I mean,
if you think about it, what happened last Tuesday in
(10:59):
New York was they decided that Alvin Brad was a racist,
which right, of course is the thing they love to say,
and that Trump was a victim, and then they gave
him a lot of money. Yep, yep, that's the playbook.
But I think that what they can't and won't accept
(11:19):
again over time is the notion that Donald Trump would
be a loser. I mean, there's nothing more contrary to
his brand than being a loser. And if again, it's
hard to project that far out, but when you think
of a guy running with three or four indictments over
his head at a certain point, I mean, the polling
is already not good for Trump and it's just going
to get worse. It's not going to take all of
(11:39):
them to leave. But if enough of them look around
and say, well, Jesus, I love this guy Trump, but
he's not going to beat Joe Biden. We got to
get somebody else, Gotta get another horse. And who do
they go to? Then? Well, I mean I would prefer
somebody like Glenn Yuncin. I think young he's the kind
of candidate. He's got a kind of a Reagan sunny,
optimistic approach in sensibility. That's the kind of guy I'd
like to see running. I mean, Tim Scott, I think
(12:03):
is in a lane that I like. And Nicky Haley
to a degree also, I think once you get to
Nicky Haley, you really sound exhausted. I'm trying not to
be too mean here because I know I feel like
the Republican Party dug itself into this ditch. But I
mean they are in this irretractable death ray. They are,
but it's again the prospect of losing maybe the tonic
(12:26):
and nothing happens in politics still does, right, And Tim
Scott is another guy who had disagree with his policies,
but he's a very sunny guy. It is hard to dislike.
And I think he's got generally the right approach in
terms of tone anyway, which is, you know, like fascism.
But I don't know how you go as a Republican
Party from the guy who called all Mexicans a rapist
(12:47):
to the eleventh black Senator. Yeah, it's a stretch for sure.
So my other question is, like, the thing that in
some ways scares me the most about where this Republican
Party is right now is that they seem to have
embraced this urbanism, right this sort of victor orban democracy
is a failed experiment. Let's go for this sort of
(13:09):
populous fascist thing, and that a lot of the sort
of younger thought leaders of the party, they have a
real dark vision for the country. And I mean, how
worried does that make you? Well? Again, I genuineflected at
the altar John mccainon especially on foreign policy. So I mean,
it's just I'm stunned by it. I can't believe it.
(13:31):
And it's it is dystopic too. I mean it's anti
democratic because I antink American, and that's what strikes me
as so profound about it all. It's just like, wait
a minute, these are the guys waiting in the flag
and they're over there supporting autocrats in Bolivia and Hungry
and around the world, and this is their new model
and they like to get it in debates now about saying,
(13:52):
you know, the United States is not even democratic. No,
I mean, we've crossed a scary rubicon. This is why
I wanted to like a sort of question I wanted
to drill down on. And I've asked you this before socially,
but like say you were terrified of where this Republican
Party was headed, and you wanted to I mean, how
(14:14):
would if there were people who were still in charge
of the Republican Party, which it's clearly just Trump driving
the show at this point, what would they do How
would they be able to push back against these autocratic urges? Well?
I think that they would, and I think there's conversation
certainly going on. I mean, people with any sort of
common sense and humanity left in the Republican Party realized
(14:36):
that Trump is unacceptable on any level and that there
has to be an alternative. And that's when you sort
of had some romp movement among donors whoever to start
lining up behind somebody the real alternative approach, whether it's
Juncan or Tim Scott or whoever it might be. They
just say listen. I mean, the problem is that it's
just party politics are so disintegrated. Now there's nobody in
(15:00):
charge of the Republican Party. There's nobody in charge of
the Democratic part they're more in charge because they have
the presidency, but it's not like there's some committee like
there used to be in the fifties or something. We
can kind of control this and say, hey, well the whistle.
This guy's a big problem. But I do think he
saw a lot of people lining up for the Santis
and I don't count to Santas out and by any
need one, I think he's had a rocky few weeks,
(15:23):
but he didn't win Florida by double digits by being
an idiot, at least strategically, so I think there's a
good chance that he'll bounce back as well, so interesting, Mark.
I hope you will come back. We'll kick it hard,
carry on regardless, keep the faith. Caroline Kitchener is a
(15:43):
national political reporter covering abortion at the Washington Post. Welcome
too Fast Politics, Caroline, Thank you so much for alriy.
So you have a really interesting beat. Will you talk
a little bit about what you cover? Where to start?
I don't know. Even just today, there's like three different
(16:04):
big stories gone on. So I cover abortion, which just
means I get to focus on this issue fully. The
stories that I most like to write are the ones
that focus on how these bands and various restrictions impact
the lives of people. So I spend a lot of
time in states where abortion is restricted trying to talk
(16:28):
to people who are trying to get abortions or just
have really direct experience with how these laws are planning out.
So one of the pieces you most recently wrote is
pretty fucking heartbreaking. I can say that because we're not
on cable news. It is this story of Annia Cook
in Myanmar, Florida. Will you tell us a little bit
(16:51):
about this story, because these stories, again are like the
unintended consequences of these abortion bands, or least we thought
they were the unintended consequence of this. Yeah, the story,
it was absolutely heartbreaking. So it's actually the story of
two women, Anya Guok and her friend Shanna Smith Cunningham,
(17:14):
very close friends. They were going through their pregnancies together
three weeks apart, and Anya first her water breaks at
sixteen weeks, which is long before a fetus is viable, right,
seven weeks before viability even the chance exactly. So immediately
realizes that this baby is not going to make it.
(17:36):
And I should say, this is the baby that she
definitely wants. I mean, this is somebody who's had a
lot of miscarriages, who just wants to be a mom
more than anything in the world. These are both women
in their thirties, yes, in their thirties, all black women
in the Fort Motordale area, And so Anya rushes to
the hospital with her husband and the doctor explains that
(17:59):
she experiencing a condition called p prawn that's a pre
viable pre term rupture of the membranes mouthable. Basically, it
means that your water breaks a long time before the
fetis is viable. But he says that she has to
go home. He can't help her because Florida has a
fifteen week abortion law in place, so typically in a
(18:21):
situation like this, a doctor would offer to induce or
perform an abortion on the pregnancy, but because of the law,
they can't. They can make this situation much less horrible
by removing the fetis, right, and that is often what
they do because these situations come with a high risk
(18:43):
of infection, a high risk of hemorrhage, so the standard
of care, according to the American College of Oppetitions and Gynecologists,
the standard of care is to offer that induction or abortion.
But the doctor explains that he can't do that, and
Anya is devastate's and she's terrified. Right, she's sent home
(19:04):
to possibly get an infection or bleed to death. Right.
They give her some antibiotics and the nurse offers to
pray for her. Oh, very helpful, and she goes home. Jesus,
how does an end for these women? While Anya hasn't
just unthinkably traumatizing experience. The next morning, she tries to
(19:25):
go back her life as normal. She goes to get
her hair done, and she delivers the fetus in the
bathroom of the hair salon, and she starts severely hemorrhaging,
and she's rushed to the hospital and over the course
of the day, she loses half of the blood in
her body and she almost dies. But I think one
thing that really stuck out to me about the story
(19:46):
is that it's it's not just one woman that this
happened too. It happened to these two friends within a day.
We One day later, her friend Shane, her water also
breaks at nineteen weeks, and she, also, in the state
of Florida, cannot get the care that she needs. She
can't get an induction, and she can't get a d NC.
(20:06):
But what's different about Shane's situation is that because she
knows what happened to her friend, she keeps going back
to the hospital. She goes back and back and back.
She's like, I can't deliver at home. I can't have
this happen to me. And so finally, on her fourth
trip to the hospital, she is dilated enough that they
keep her and she's able to deliver and she doesn't
(20:27):
have any terrible right but she still has the trauma
for sure, russure of delivering a dead baby or a
dead fetus. This story is so incredibly common, it's like
almost I feel like it's shockingly common. I want to know,
(20:50):
aren't these anti choice Republicans a little bit? I mean,
don't they give a shit at all about these women?
I mean, these are their wives, their children. And I
interviewed the sponsor of the fifteen week abortion band that's
in effect right now in Florida for the story, and
I told her the story and I asked her what
(21:11):
she made of it and how kind of what the
law is supposed to do in these circumstances, because there
is a medical exception, but it's very narrow. It's for
save the life of the mother. And in these situations
when you present with your water breaking, it's not like
you are like, there's no choices. Yeah, but the medical
exception doesn't like it's not clear that that medical exception
(21:33):
kicks in. But she is saying when I interviewed this woman,
she's saying, oh, it should count, that situation should count.
But she actually accused the doctors of sort of playing
politics with people's lives, which is obviously a very serious accusation.
And I spoke with many doctors in Florida for the
story who said, we fear that we will be fined
(21:55):
or go to jail if we do this. So if
that is the reality, if the sponsor really is saying
that they should be allowed, that they need to change
the law and they need to be explicit about the
circumstances and which this is allowed. I mean, that is
so striking to me. I feel like we I mean,
(22:15):
that is the thing that's so shocking to me, that
we are in a situation where there are all these
unintended consequences. But again, this is what happened in the
nineteen seventies. I mean, there was the doctors who drove
the road decision more than I mean, there was a
sense in which this situation was untenable for the medical profession. Ok. Yeah,
(22:40):
I mean the doctors. I spoke with over a dozen
doctors for this story, and they all were just like
they're devastated because they want to provide this care for
their patients, right like they this is their job. Yeah,
they desperately want to be able to take care of
people like aren't here in Cheney, and so when they can't,
(23:02):
when they have to say I'm sorry you had to
go home or just send you to another state, It's
like it is such a difficult thing to grapple with
as a doctor. And and I have had people and
I was reporting this story, I had people say to me,
why don't they just do it? And that's not fair
either because these are people, I mean, they go to jail, yeah,
(23:23):
and so that's not fair to put that on them.
It's also the hospitals too, right, the hospitals are another
liar of this, right, So talk to me about the hospitals,
because that's something that's really interesting is we're seeing the
hospitals refusing to treat right, right. But I mean the
hospitals I think are also kind of caught in a
confusing movind Like what we found in public records request
(23:47):
is that the language of the hospital policy pretty much
directly reflects the language of the law, which is confusing.
Like the medical exception, it's really not clear like what
is covered and what is not covered. So what we
found is that they're sort of putting it on the
doctors to decide and kind of take it into their
(24:07):
own hands because the hospitals are also afraid of being
liable for the stuff. So's to So let me ask
you about what you're seeing at the state level now
with abortion bills, because we have Florida. Florida's the big one,
So talk to me about Florida. Florida has been the
(24:30):
place that has not been as insane about abortion, but
that's about to change. Yeah. I mean, currently, they allow
abortions to kick fifteen weeks of pregnancy, which does allow
the vast majority of abortions to continue. But either today
or tomorrow, the Republican legislature will pass a six week
abortion ban. And it is impossible to overstate the impact
(24:52):
that that's going to have across the entire country. Because
Florida performs more abortions than almost any other state in
the country. It's huge, huge state, and the ban abortion
at six weeks, which is before most people know they're pregnant,
than people are going to be pushed out of that
huge state. And the places where they would go North Carolina,
(25:14):
South Carolina, Illinois. They're already so overwhelmed with everybody else
from the southeast that's been going there, and a lot
of people from the southeast other states have also been
going to Florida. So it's just the ripple of us
of that band are going to be unbelievable. Yeah, no,
I mean, it's just incredible so talk to me about
(25:37):
how that goes down. Now that's a state bill, it's
going to go to the governor. I mean, do you
think link this race to create more and more restrictive
abortion bands? What is driving it? Think the base? I
do have to say it once somewhat surprising to me
that Florida went thus far. I thought we just have
(25:59):
seen again and again and again that voters really care
about protecting abortion rights. We saw it like just last
week or the week before in Wisconsin. It's so clear,
and I really thought that that would be on the
mines of legislators in a place like Florida, but it
doesn't seem to be. So. I do think it's a
(26:21):
matter of the base, probably for desantists, right like he
wants to run for present, needs to win a primary.
But it's I think the big test is there to
be twenty twenty four. So abortion has done really really
well on these ballot initiatives, and I was hoping that
you could talk a little bit about the ballot initiatives
(26:41):
you've seen and how they've performed and what you can
extrapolate from that. Yeah, I mean, I think the biggest
one for me on election night the biggest surprise to me.
It was Kentucky. Yeah, Kentucky. Just voters in Kentucky, conservative
Kentucky came out to support abortion rights, and I think
(27:04):
that that really shocked a lot of people. And together
with Michigan too, I mean, Michigan was able to protect
abortion rights, especially protect them, but Kentucky basically was sort
of the opposite thing. That people were coming out to say.
There was an amendment to say that there were no
explicit protections for abortion in the state constitution, and people
(27:25):
were coming out to say, no, we don't want that,
we don't want that amendment. So now what you see
are just like abortion rights advocates are just scrambling to
do this and in many places as possible. They want
to have these valid initiatives in as many places I
can effectively do them, and I do think it's tough
(27:47):
because you can't do them everywhere successfully. I think at
the same time, because they're sponsor. So right now we're
seeing some of that play out. By the kind of
thick of a summer, we'll know which states are gonna
do this for real. Next came around. So one of
the things I want to ask you is abortion has
this right has been taken away from women less than
(28:09):
a year. Now we're trying to pro choice lawmakers are
trying to figure out how to protect women. I want
to ask you, like, why has the Congress been able
to codify same sex marriage but had such tough time
with row? The great question. I mean, some people have
(28:33):
really questioned why was this not done in the Obama
era when dem felt stronger control. I mean, now there's
just not the votes for it, right, But I think
that for so long we really assumed our gas was
never going to happen, Like even after the Leek, like
people were saying that this was never going to happen.
(28:54):
And I think that it was that really ran so
deep that it was hard to get energy. Kind so denial,
I think, so yeah, yeah, I mean that's what I
think too. But it's just so shocking to me. I mean,
I don't know where we go from here. I mean,
I do think that twenty twenty four is going to
(29:14):
be massive for abortion. I mean, if a Republican gets
in the lighthouse an anti abortion Republican, which I think
that all of them so far have come out backing
some kind of national restriction. What we have seen is
really the power that the FDA has, I mean some
of the agency, the administration actually has an incredible amount
(29:37):
of power to particularly restrict the abortion pill and then
potentially helped Shepherd through a national band. So I think
that abortion rights advocates are going to be working really
hard to make it crystal clear that abortion really is
on the ballot next time around. So crazy, I mean
just and the Fifth Circuit is known to be very conservative.
(29:59):
Oh yeah, known as the most conservative in the country.
Thank you so much for joining us. I hope you'll
come baha, thank you. I would love to. Scott Shapiro
is a professor at Yale Law School. Welcome too, fast Politics,
Scott Shapiro, Oh, thank you so much, Shamali, great to
be here. Talking to you is great because like talking
to every single one of my relatives. I'm sorry, it's like, okay,
(30:25):
talking to my Auntie Esther. Yeah, that's always how I
want to be seen in the world as the same
as Auntie Esther is Auntie Esther ninety no no, no,
no no. She's the best person in the world. And
it said it's a high compliment. I'm good. You know.
She pronounces everything like cancer. Oh yeah, New York accent
thing is brutal. So, Scott Shapiro, I wanted to have
(30:46):
you on to talk because for any number of reasons.
But you're fancy Yale law professor, but you also are
involved in the Yale Cybersecurity Lab, so you have really
a bunch of skills that are you're really an expert
in all the stuff I want to talk about. But first,
before we talk about anything, we have to talk about
(31:10):
the crazy Texas judge, the Trump appointed Texas judge who
decided a federal judge from Armarillo, Texas, who decided that
the FDA approval process isn't good when they approved something
he doesn't like. Yeah, I mean that's the way we
(31:31):
got into this is that you DM me after I
tweeted the originalist case against Tayland. All right, really, this
is a shocking ruling out of Texas. The law is
really really not on the Texas judge as side, and
in fact, it's hard to think of this as anything
(31:54):
other than just like a brute power play to try
to shut down safe and legal abortions in the United States. Yeah,
that's what I wanted to talk to you about. Is
there any legal precedent for something like this at all.
Let me just say one of the biggest problems with
(32:14):
the opinion and the ruling is that it runs a
foul of something that's called the standing doctrine. And the
standing doctrine says not anybody can bring a case in
front of federal court. You have to have what's called
a case or controversy. You have to be personally affected
by it. So the one thing, if women who tried
(32:39):
to terminate their pregnancies using medication a worship got harmed
in some way, that'd be one thing. Then you could say, yes,
they've been personally affected and so therefore they have standing.
But the people who brought this suit, the plaintiffs so
when it brought the suit, are physicians, and they're not
even the physicians of particular women that have taking this drug.
(33:00):
They're worried about fallout from taking the drug, so they
really don't have any they're not personally affected, and under
standing doctrine that has been around for decades, they would
not be allowed to bring a suit, and yet they did,
and it was just affirmed in the Fifth Circuit. Let's
(33:22):
talk about that fifth circuit. So this judge was picked
by the anti abortion group that was bringing lawsuits. It
was jurisdiction chopping. He was picked because in this jurisdiction
there's only one judge, and this judge has been a
(33:42):
very vocal anti choice activist since way before he was
put on the bench. This case now went up to
the Fifth Circuit. The Fifth Circuit is notoriously shitty. Can
you explain why and how? And I know you won't
use the word shitty, but since I'm not awe where
I can use technical terms? Yeah, no, no, no, sure,
(34:03):
I'll try not to use any Latin. So the Fifth
Circuit is a very conservative circuit, and lots of the
rulings that come out of the Fifth Circuit are not
rulings that people they would describe themselves as progressive. They
don't like those decisions. I think people even in the
(34:25):
center recognize that the Fifth Circuit is really somewhat extreme
in their conservative views. I would also just say that
it's also true that the Ninth Circuit in California has
historically been known for its very strong liberal views. So
this is not something that was just invented by Republicans
(34:45):
or the Federal society. But it is true that this
strategy of stocking the federal judiciary with conservatives, and in
particular Trumpist judges has been going full tilt. I mean,
it was one of the main reasons why a lot
of conservatives supported Donald Trump, even though everything about him
(35:08):
is kind of not very conservative, not very conservative, not
very family values. So and we can talk about it,
but I think that this has created an enormous political
problem for the Publican Party because they created a monster
and now it's hard to see how they put it
back in the box. Yeah, so I wanted to ask
(35:29):
you about the I feel like the federal Society has
gotten some bad publicity lately. You've written on this a lot.
One of the interesting things about this pro PUBLICA reporting
about Clarence Thomas and his good friend Harlan Crowe. If
that isn't a superhero villain name, I don't know what
(35:50):
is his good friend Harlan Crowe, is that there is
actually no ethics provision for the Supreme Court, kind of
the cut of judicial ethics. I believe that's the name
that applies to federal judiciure doesn't apply to the Supreme Court, though,
as good law and order people, they do consult the
(36:11):
rules as they say, and I mean, you know, I
mean the thing is, I'm a law professor, are teaching
a law school, and one of the things I tell
students over and ever again, I don't everyone tells us that,
you know, there's one thing to have a conflict of interest,
you know, and that's that's bad. But the second thing
is to it's really important to avoid appearances of conflict
(36:32):
of interest. And Clarence Thomas seems to get into these
bad optics. Is like the king of bad optics. Yeah,
he is, he really is. I call him Justice hot
Dog Guy, oh break because of the hot dog Guy
meme where he's like, how did we get here? Right?
Right exactly? Guy dressed up at a hot dog sued
through the hot dog car trying to get to the
(36:53):
bottom of things. Yeah, we gotta get to about her
who did this? And I think it's just completely laughable
of when Clarence Thomas says, oh, I think the leak
of Dabbs has eroded the legitimacy of the Supreme Court,
as if that hasn't been what he's been doing for
the last several decades. I think it's a huge embarrassment
how he's been behaving but he acts to me like
(37:15):
he which technically he is untouchable. One of the things
that Justice Roberts and I don't want to give Justice
Roberts too much credit, really, I don't. But Justice Roberts
has been very much a person who we've seen behind
the scenes trying desperately to get these trumpy justices to
slow their role, to not change everything right away, to
(37:39):
keep focused on the legitimacy of the court, whatever that means.
But he also has a wife who is a legal recruiter.
I guess I want to be kind of careful, you know,
so lots of times, you know, when you have professionals
and their couples and they are their own people, and
(37:59):
so we we should be kind of careful about not
caring one partner with what the other partner does. Though
I think in the case of Justice Thomas, I think
there are really serious problems with his partner and how
he's behaved visa viright. But you know, in terms of
Justice Roberts, you know, like we you know, our partners
(38:21):
have lives too, and they have lives before Justice Roberts
in this case, you know, was elevated not only to
Supreme Court, but to the to be Chief Justice, So
I would be just kind of careful about not trying
to overcriticize the conservative majority. I think there's plenty plenty, right,
(38:44):
But I'm just saying it speaks to the idea of
why Justice Roberts might not want to go down this road. Oh,
I say, I see what you're saying. I say, I
also just think that, you know, it's called the Roberts Court,
and you know, his legacy is tied up with how
some of these really reckless people his colleagues are behaving, right,
(39:04):
And I think it paints him because I think he's,
you know, a conservative small see who wants you know,
he's got conservative views. But I think he also wants
to maintain the legitimacy legitimacy of the Court, which at
this point I think that ship has sailed. So I
want to ask you, So we have this abortion ruling,
(39:24):
one of the many problems here is that we have
also other rulings that are about mytho prostone, which are
contrary in other circuits. Can you talk about that? Yeah?
Out of Washington State, like within hours, I forgot which
one came first, but one had come out saying that
I think it was in seventeen states that the Democrats
(39:46):
that Democratic attorneys general we're trying to keep access to
abortion medications. And so now we have a situation where
we have dueling injunctions to Washington State saying that least
in seventeen states that access to medication has to be provided,
and the Texas saying that in all fifty states it
(40:09):
can't be. And so this is not great. And so
this is why we have circuit courts that as appellate
courts that try to resolve some of these disagreements. Although
the Fifth Circuit which includes Texas, does not include Washington
State here. So ultimately, if we want to get this resolved,
(40:30):
they'll probably go up to the Supreme Court. So let
me ask you about this. It seems like that you
have all these different judges with different ideas on how
this should go. The Supreme Courts about to go on vacation.
They take their summers very seriously. As somebody who also
takes the summer circuit, I don't want to be I
(40:51):
don't want to be too critical because I am you know,
we do get the summers off, not summers off. We
don't teach during the summers as academics. But yes, spring
Court has been moving really Historically they've moved slowly, but
they've been moving particularly slowly this year and last year too.
Probably some of it's COVID. Probably some of it was
(41:14):
distrust about the leak is slowing things down. Maybe there's
political tensions, institutional tensions there. I don't know, but like, right,
what's going to happen. It's hard to it's hard. It's
hard to know when they'll get around to ruling and
then what they'll rule. It's so hard to say. They
could do it on the shadow docket like they did
(41:36):
with SBA the Texas abortion law. They basically overturned Row
a year before Rowe was overturned. Yeah, basically they could
do that, which is basically not schedule oral arguments and
have hearings and then write an opinion, but basically just
vote on what they wanted to do and then just
deal with it that way. The Supreme Court has become
(41:58):
really quite even more unpredictable, I think in certain ways
institutionally and also just like who knows how they're going
to rule in this case. So that's what I wanted
to ask you about the Supreme Court because West Virginia
had a trans kids sports ban which they kicked up
to the court, and the court refused to hear it
(42:21):
on the docket, but they did. The dissenters were Thomas
and Alito. Let me say the following thing to give
listeners a sense of what's at stake here. So on
the one hand, you know, obviously access to safe and
effective abortion medication is something that one side wants a
(42:46):
lot and the other side does not want. But there's
also a thing going on, which is the standing doctrine.
So the standing doctrine, as I mentioned earlier, is about
like when are you allowed to actually bring a lawsuit?
And the standing doctrine was made more and more severe,
meaning harder and harder for plaintiffs to bring lawsuits in
(43:10):
the eighties and nineties two thousands, because it was a
way of stopping progressives from bringing lawsuits against let's say,
the Reagan administration or environmental activists would bring these lawsuits
to try to stop some agency action that would affect
the environment, and the conservative justices and judges really whittled
(43:34):
down when you were allowed to bring lawsuits. So if
the Supreme Court were to say, yes, we're going to
change standing doctrine. So now people who are really directly
affected by a law it's still challenge it. Then that
opens up the floodgates to all progressive activists who want
to challenge the things that they want to challenge. So
(43:56):
the standing doctrine was a creation in the last several days,
gates out of the conservative movement, and so now they're
being a bit hoisted by their own pitard. This is
super interesting. Thank you so much. I hope you will
come back. I would love to, and I will tell
anti Esta to listen. Molly junk Fast, Jesse Cannon. You
(44:24):
know it was the best when all these people who've
been bought things by Harlan Crowe, we're saying, no, there's
nothing wrong with Clarence Thomas taking vacation, and then another
shoe drops to make them look stupid. No, I'm gonna
go back here and say they were saying that there's
nothing wrong with having Nazi artifacts, and in fact, there
(44:44):
was an article title having Nazi artifacts does not make
you a Nazi. You horrible Internet people forever saying such
bad things about our favorite donor. Again, I ask you,
all right, let's just stop and do a thought experiment.
If a Democratic donor had the standing bull death mask
(45:07):
and cocktail napkins, personally, I would just not simp for
the guy with Hitler's cocktail napkins. But that is a
choice that all of us need to make. Anyway, Today
we learn Harlan Crowe, but Justice, Clarence Thomas's houses, numerous
(45:28):
houses that maybe Clarence Thomas couldn't sell, or maybe we
don't even know. It looks like fuckery to me, and
for that that is our moment of fuckery. That's it
for this episode of Fast Politics. Tune in every Monday, Wednesday,
and Friday to hear the best minds in politics makes
sense of all this chaos. If you enjoyed what you've heard,
(45:51):
please send it to a friend and keep the conversation going.
And again, thanks for listening.
Hi, I'm Molly John Fast and this is Fast Politics,
where we discussed the top political headlines with some of
today's best minds, and national security secrets are being leaked
in video game chat rooms. We have an intriguing show
today the Washington Post. Caroline Kitchener talks to us about
the horrifying reality of post role America. Then we'll talk
(00:24):
to Yale law professor Scott Shapiro about all of the
legal fuckery with the Supreme Court. But first showtimes the circuses.
Mark McKinnon, Welcome to Fast Politics. Mark Well, glad to
be on the discard. We're delighted to have you. I
(00:45):
feel like this week was I mean, I don't understand
what Republicans ever get sick of losing? Apparently not. They
just clawing their weight to the bottom. I'm not sure
we've reached you. You have spent your whole life, or
not your whole life, but some of your life working
in Republican politics. Did you watch what happened in Tennessee?
(01:10):
Would the two Justin's removed for several days in abject horror?
I mean, did you see how this would just completely
bite them? Of course? And it's funny Molly, because this
is in the category of great minds thinking alike. In
the middle of all that, I've said, oh, man, I'm
going to write a column about how the Republicans are
(01:30):
now that they've cut the car the cars running over
them between guns and Tennessee and Kentucky and abortion and Trump.
And I pitched that to our favorite friend, David's friend,
and he said, well, sorry, buddy, Molly just wrote that. So,
I mean, it's shocking to me to watch the arc
of the Republican Party since the days of compassionate Conservatism
(01:54):
and how it has gone from the Tea Party to
MAGA to It's something that I don't wreck ignize at all.
And to your point, ultimately, everything that's being done it's
just appealing to a smaller and smaller and smaller base
of a diminishing demographic. So whatever short term games they're getting,
(02:14):
which aren't a lot, it's a long term disaster for
the Republican So I was thinking about this because I
had coffee with a guy called John de la Volpi.
I think, does all the polling on millennials right? Exactly?
Does all this polling on millennials and you'll be surprised
to hear that millennials are not that interested in Donald
(02:38):
Trump's belief that the election was stolen from him, and
in fact, they are quite interested in climate and other
real things. And I want to talk to you because
you were involved in Republican politics around the time when
Republicans still offered voters something and I wondered, if you
were in charge now, if you had to sort of
(03:00):
do a post mortem on these smoking emperors that will
be the Republican Party when Trump is done with it,
what would you offer. Well, you almost have to start
from scratch. I mean, there was a post mortem done
in twenty twelve which sort of laid out a battle
plan for Republicans to grow the party. And that means addition.
That means adding voters, not subtracting voters, and that means
(03:24):
appealing to the de LA vote voters, to a whole
cross section of voters who are growing not diminishing as
the MAGA voters are, which is a highly white and
old demographics. So yeah, I mean across the board you
just look at. First of all, I was drawn to
the Republican Party in George Bush because of the appeal
(03:44):
of the idea of compassionate conservatism. There's nothing compassionate left,
So I mean much less is driving away Republicans like me,
much less not attracting independence or even some conservative Democrats
like George W. Bush did or others. So it's just
in a death spot. And you know, the worst thing
that can happen to the Republican Party is Donald Trump.
And I mean think about this. He's first of all,
(04:07):
twice impeached, and he lost the twenty twenty election, not
just the presidency. He lost the presidency, he lost the House,
he lost the Senate. That hasn't happened in a hundred years.
Grover Cleveland was the last person to manage that. And
now he's once indicted. But it's very possible that by
this time next year, I'd say even probable, that he'll
(04:29):
be running as a four time indicted, twice impeached and
once lost the House, the Senate, and the presidency. That's
a heck of a load to try and carry across
the finish line. And it's a dream scenario for Democrats
because I like Biden and I think he was the
right guy for the right moment. I don't like him
running for reelection, but Donald Trump may be the only
(04:50):
guy that Biden could be. So I just want to
ask you, I mean again, not to get into the
nuances of the campaigns yet, and especially not on the
Democratic side, because while Trump is running, I agree, well,
Trump is running. Well, the only game in town is Trump,
I wondered. I had read something about this idea that
(05:10):
the more attention Trump gets, the worse he does in
this sort of general population, and I think that's how
the Biden administration is playing it too. Sure. I mean,
it's the old maxim that we used to say, don't
catch a falling knife. Let it fall, let him catch it.
It's his knife. And yes, there's no appeal to a
guy who's being indicted to that's not going to expand
(05:34):
his voters. I mean, he was short eleven million, right
according to everybody but him, And if you're short eleven
million in twenty twenty, you got to have eleven million
plus in twenty twenty four. And all that's happening right
now is not going to appeal to one single voter
of those eleven million, I assure here, But here's my question.
(05:54):
Why can't Republicans explain to us the machinations here? Like
why is no one. I mean, is it just because
they didn't get a blowout in these last elections that
they've decided to continue down this road of Trump is
um or do you think it's because the base really
controls a party or do you think it's some third
option the base controls the party. I mean, thirty percent
(06:16):
is not a majority, but it's a lot of voters,
and that's enough voters to control the primaries. And every
time that somebody stands up and takes a shot at
Donald Trump, they face the wrath of the MAGA faithful.
And that's, like I said, twenty five to thirty percent
of that Republican base and that's enough. That's enough to
cause a lot of pain. And that's why you see
(06:37):
everybody just laying down. And they're damned if they do
and damned if they don't. But I've said for a
long time that the only option for a resilient or
any future at all in terms of winning the presidency
and majorities in this country where Republicans is to take
Trump off the windshield and put them in the rear
view of mirror. And until then they're going to get
that thirty percent of the MAGA voters or control those primaries.
(07:00):
And as I've watched this, what happens is it's just
sort of, for lack of a better chart, where maybe
it is the right term, it's just dumbing down everything completely,
so that in these primaries increasingly you have these sort
of purity tests. You have to say the election was stolen,
you have to agree with all this Trump stuff, which
just takes you out of consideration for general election voters.
(07:22):
And it's just getting worse and worse. But the appeal
is not going up, it's going down. And so if
you're somebody running in a Republican primary, I mean, Arizona
is a good example. This sheriff now is going to
run in the Republican where for the Senate, and King's
going to out carry Lake. Carry Lake. And by the way,
Carry Lake is my favorite example because for anybody who
(07:43):
watched that election last cycle, she had all the candidate
skills that you would want as someone who does campaigns
or works with candidates. She's just a great communicator, fast, smart,
and should have won that election going away. And yet
she goes into a room full of potential voters Republicans,
(08:04):
and she says something along the lines of who here
supported John McCain, and a bunch of people raise their hands.
She said, get out, and it's like, are you kidding me?
You're telling John McCain voters to go to hell? Well
guess what they're going to tell you to go to hell?
And you are not going to be in the United
States Senate. So that's the klin of thing. And so
(08:24):
she's going to have to out sheriff the sheriff now
and it just keeps spiraling downward and down. But that's
what DeSantis is trying to do with Trump right now. Yeah,
he is, and he was supposed to be the Golden Boy,
and he hasn't had a lot of luck the last
month or so. And it's a good example of what
happens when you take him on. I mean, he did
so lightly, man. I think Chris Prittie is the only
(08:46):
guy who's really taken a two by four to him.
But Christie's not even in the ratio. I mean, I
just am curious, though. Do you think that running to
the right of Donald Trump on policy would be hard
pressed to even name a Trump policy makes any sense. No,
you're not going to get to the right of Trump.
(09:07):
That's just not going to work. And I think the
only way to do it is just do what Christie's
doing and just go ahead and take the two by
four to Trump with the expectation, which I think is
a realistic one and a practical one and a probable
one that one indictment rough to the brutal three wow
four unsurvival. At some point that's just going to be
(09:30):
too much and it's going to break his back at
some point. It's like if you ever read the book
or some of the movie The Man Who Would Be King.
But I mean the sort of whole notion of it
is as soon as they see it bleed, you're screwed.
And as soon as people, even the magabase see that
Donald Trump is mortal and he bleeds, they could evaporate overnight.
So this is a very interesting thing that I have
(09:53):
never heard anyone say. And so I want you to
say more about this. Well, I just don't think that
you're gonna outflank Trump on the right. That's just not
going to work, right, And so listen, everybody's afraid of
making the maga faithful mad Well. The thing that people
respond to, I think a Trump responds to is strength, right,
(10:14):
So go up and just get a rock and be
David and thruff it and you're gonna get a lot
of heat immediately from the base. But over time you'll
be seen as the guy who was willing to take
on the king, and as I said, at a certain point,
over time. And it's going to take time. But when
you get sounded with the second and the third and
(10:35):
the fourth indictment and you're the guy that's been slugging
him and suddenly he buckles, you're going to be the
guy standing in the ring. So here's my question for
you with this. Do you think there's a moment where
the Magabasse says this is enough. I just have so
much trouble imagining that one day they're like because I mean,
if you think about it, what happened last Tuesday in
(10:59):
New York was they decided that Alvin Brad was a racist,
which right, of course is the thing they love to say,
and that Trump was a victim, and then they gave
him a lot of money. Yep, yep, that's the playbook.
But I think that what they can't and won't accept
(11:19):
again over time is the notion that Donald Trump would
be a loser. I mean, there's nothing more contrary to
his brand than being a loser. And if again, it's
hard to project that far out, but when you think
of a guy running with three or four indictments over
his head at a certain point, I mean, the polling
is already not good for Trump and it's just going
to get worse. It's not going to take all of
(11:39):
them to leave. But if enough of them look around
and say, well, Jesus, I love this guy Trump, but
he's not going to beat Joe Biden. We got to
get somebody else, Gotta get another horse. And who do
they go to? Then? Well, I mean I would prefer
somebody like Glenn Yuncin. I think young he's the kind
of candidate. He's got a kind of a Reagan sunny,
optimistic approach in sensibility. That's the kind of guy I'd
like to see running. I mean, Tim Scott, I think
(12:03):
is in a lane that I like. And Nicky Haley
to a degree also, I think once you get to
Nicky Haley, you really sound exhausted. I'm trying not to
be too mean here because I know I feel like
the Republican Party dug itself into this ditch. But I
mean they are in this irretractable death ray. They are,
but it's again the prospect of losing maybe the tonic
(12:26):
and nothing happens in politics still does, right, And Tim
Scott is another guy who had disagree with his policies,
but he's a very sunny guy. It is hard to dislike.
And I think he's got generally the right approach in
terms of tone anyway, which is, you know, like fascism.
But I don't know how you go as a Republican
Party from the guy who called all Mexicans a rapist
(12:47):
to the eleventh black Senator. Yeah, it's a stretch for sure.
So my other question is, like, the thing that in
some ways scares me the most about where this Republican
Party is right now is that they seem to have
embraced this urbanism, right this sort of victor orban democracy
is a failed experiment. Let's go for this sort of
(13:09):
populous fascist thing, and that a lot of the sort
of younger thought leaders of the party, they have a
real dark vision for the country. And I mean, how
worried does that make you? Well? Again, I genuineflected at
the altar John mccainon especially on foreign policy. So I mean,
it's just I'm stunned by it. I can't believe it.
(13:31):
And it's it is dystopic too. I mean it's anti
democratic because I antink American, and that's what strikes me
as so profound about it all. It's just like, wait
a minute, these are the guys waiting in the flag
and they're over there supporting autocrats in Bolivia and Hungry
and around the world, and this is their new model
and they like to get it in debates now about saying,
(13:52):
you know, the United States is not even democratic. No,
I mean, we've crossed a scary rubicon. This is why
I wanted to like a sort of question I wanted
to drill down on. And I've asked you this before socially,
but like say you were terrified of where this Republican
Party was headed, and you wanted to I mean, how
(14:14):
would if there were people who were still in charge
of the Republican Party, which it's clearly just Trump driving
the show at this point, what would they do How
would they be able to push back against these autocratic urges? Well?
I think that they would, and I think there's conversation
certainly going on. I mean, people with any sort of
common sense and humanity left in the Republican Party realized
(14:36):
that Trump is unacceptable on any level and that there
has to be an alternative. And that's when you sort
of had some romp movement among donors whoever to start
lining up behind somebody the real alternative approach, whether it's
Juncan or Tim Scott or whoever it might be. They
just say listen. I mean, the problem is that it's
just party politics are so disintegrated. Now there's nobody in
(15:00):
charge of the Republican Party. There's nobody in charge of
the Democratic part they're more in charge because they have
the presidency, but it's not like there's some committee like
there used to be in the fifties or something. We
can kind of control this and say, hey, well the whistle.
This guy's a big problem. But I do think he
saw a lot of people lining up for the Santis
and I don't count to Santas out and by any
need one, I think he's had a rocky few weeks,
(15:23):
but he didn't win Florida by double digits by being
an idiot, at least strategically, so I think there's a
good chance that he'll bounce back as well, so interesting, Mark.
I hope you will come back. We'll kick it hard,
carry on regardless, keep the faith. Caroline Kitchener is a
(15:43):
national political reporter covering abortion at the Washington Post. Welcome
too Fast Politics, Caroline, Thank you so much for alriy.
So you have a really interesting beat. Will you talk
a little bit about what you cover? Where to start?
I don't know. Even just today, there's like three different
(16:04):
big stories gone on. So I cover abortion, which just
means I get to focus on this issue fully. The
stories that I most like to write are the ones
that focus on how these bands and various restrictions impact
the lives of people. So I spend a lot of
time in states where abortion is restricted trying to talk
(16:28):
to people who are trying to get abortions or just
have really direct experience with how these laws are planning out.
So one of the pieces you most recently wrote is
pretty fucking heartbreaking. I can say that because we're not
on cable news. It is this story of Annia Cook
in Myanmar, Florida. Will you tell us a little bit
(16:51):
about this story, because these stories, again are like the
unintended consequences of these abortion bands, or least we thought
they were the unintended consequence of this. Yeah, the story,
it was absolutely heartbreaking. So it's actually the story of
two women, Anya Guok and her friend Shanna Smith Cunningham,
(17:14):
very close friends. They were going through their pregnancies together
three weeks apart, and Anya first her water breaks at
sixteen weeks, which is long before a fetus is viable, right,
seven weeks before viability even the chance exactly. So immediately
realizes that this baby is not going to make it.
(17:36):
And I should say, this is the baby that she
definitely wants. I mean, this is somebody who's had a
lot of miscarriages, who just wants to be a mom
more than anything in the world. These are both women
in their thirties, yes, in their thirties, all black women
in the Fort Motordale area, And so Anya rushes to
the hospital with her husband and the doctor explains that
(17:59):
she experiencing a condition called p prawn that's a pre
viable pre term rupture of the membranes mouthable. Basically, it
means that your water breaks a long time before the
fetis is viable. But he says that she has to
go home. He can't help her because Florida has a
fifteen week abortion law in place, so typically in a
(18:21):
situation like this, a doctor would offer to induce or
perform an abortion on the pregnancy, but because of the law,
they can't. They can make this situation much less horrible
by removing the fetis, right, and that is often what
they do because these situations come with a high risk
(18:43):
of infection, a high risk of hemorrhage, so the standard
of care, according to the American College of Oppetitions and Gynecologists,
the standard of care is to offer that induction or abortion.
But the doctor explains that he can't do that, and
Anya is devastate's and she's terrified. Right, she's sent home
(19:04):
to possibly get an infection or bleed to death. Right.
They give her some antibiotics and the nurse offers to
pray for her. Oh, very helpful, and she goes home. Jesus,
how does an end for these women? While Anya hasn't
just unthinkably traumatizing experience. The next morning, she tries to
(19:25):
go back her life as normal. She goes to get
her hair done, and she delivers the fetus in the
bathroom of the hair salon, and she starts severely hemorrhaging,
and she's rushed to the hospital and over the course
of the day, she loses half of the blood in
her body and she almost dies. But I think one
thing that really stuck out to me about the story
(19:46):
is that it's it's not just one woman that this
happened too. It happened to these two friends within a day.
We One day later, her friend Shane, her water also
breaks at nineteen weeks, and she, also, in the state
of Florida, cannot get the care that she needs. She
can't get an induction, and she can't get a d NC.
(20:06):
But what's different about Shane's situation is that because she
knows what happened to her friend, she keeps going back
to the hospital. She goes back and back and back.
She's like, I can't deliver at home. I can't have
this happen to me. And so finally, on her fourth
trip to the hospital, she is dilated enough that they
keep her and she's able to deliver and she doesn't
(20:27):
have any terrible right but she still has the trauma
for sure, russure of delivering a dead baby or a
dead fetus. This story is so incredibly common, it's like
almost I feel like it's shockingly common. I want to know,
(20:50):
aren't these anti choice Republicans a little bit? I mean,
don't they give a shit at all about these women?
I mean, these are their wives, their children. And I
interviewed the sponsor of the fifteen week abortion band that's
in effect right now in Florida for the story, and
I told her the story and I asked her what
(21:11):
she made of it and how kind of what the
law is supposed to do in these circumstances, because there
is a medical exception, but it's very narrow. It's for
save the life of the mother. And in these situations
when you present with your water breaking, it's not like
you are like, there's no choices. Yeah, but the medical
exception doesn't like it's not clear that that medical exception
(21:33):
kicks in. But she is saying when I interviewed this woman,
she's saying, oh, it should count, that situation should count.
But she actually accused the doctors of sort of playing
politics with people's lives, which is obviously a very serious accusation.
And I spoke with many doctors in Florida for the
story who said, we fear that we will be fined
(21:55):
or go to jail if we do this. So if
that is the reality, if the sponsor really is saying
that they should be allowed, that they need to change
the law and they need to be explicit about the
circumstances and which this is allowed. I mean, that is
so striking to me. I feel like we I mean,
(22:15):
that is the thing that's so shocking to me, that
we are in a situation where there are all these
unintended consequences. But again, this is what happened in the
nineteen seventies. I mean, there was the doctors who drove
the road decision more than I mean, there was a
sense in which this situation was untenable for the medical profession. Ok. Yeah,
(22:40):
I mean the doctors. I spoke with over a dozen
doctors for this story, and they all were just like
they're devastated because they want to provide this care for
their patients, right like they this is their job. Yeah,
they desperately want to be able to take care of
people like aren't here in Cheney, and so when they can't,
(23:02):
when they have to say I'm sorry you had to
go home or just send you to another state, It's
like it is such a difficult thing to grapple with
as a doctor. And and I have had people and
I was reporting this story, I had people say to me,
why don't they just do it? And that's not fair
either because these are people, I mean, they go to jail, yeah,
(23:23):
and so that's not fair to put that on them.
It's also the hospitals too, right, the hospitals are another
liar of this, right, So talk to me about the hospitals,
because that's something that's really interesting is we're seeing the
hospitals refusing to treat right, right. But I mean the
hospitals I think are also kind of caught in a
confusing movind Like what we found in public records request
(23:47):
is that the language of the hospital policy pretty much
directly reflects the language of the law, which is confusing.
Like the medical exception, it's really not clear like what
is covered and what is not covered. So what we
found is that they're sort of putting it on the
doctors to decide and kind of take it into their
(24:07):
own hands because the hospitals are also afraid of being
liable for the stuff. So's to So let me ask
you about what you're seeing at the state level now
with abortion bills, because we have Florida. Florida's the big one,
So talk to me about Florida. Florida has been the
(24:30):
place that has not been as insane about abortion, but
that's about to change. Yeah. I mean, currently, they allow
abortions to kick fifteen weeks of pregnancy, which does allow
the vast majority of abortions to continue. But either today
or tomorrow, the Republican legislature will pass a six week
abortion ban. And it is impossible to overstate the impact
(24:52):
that that's going to have across the entire country. Because
Florida performs more abortions than almost any other state in
the country. It's huge, huge state, and the ban abortion
at six weeks, which is before most people know they're pregnant,
than people are going to be pushed out of that
huge state. And the places where they would go North Carolina,
(25:14):
South Carolina, Illinois. They're already so overwhelmed with everybody else
from the southeast that's been going there, and a lot
of people from the southeast other states have also been
going to Florida. So it's just the ripple of us
of that band are going to be unbelievable. Yeah, no,
I mean, it's just incredible so talk to me about
(25:37):
how that goes down. Now that's a state bill, it's
going to go to the governor. I mean, do you
think link this race to create more and more restrictive
abortion bands? What is driving it? Think the base? I
do have to say it once somewhat surprising to me
that Florida went thus far. I thought we just have
(25:59):
seen again and again and again that voters really care
about protecting abortion rights. We saw it like just last
week or the week before in Wisconsin. It's so clear,
and I really thought that that would be on the
mines of legislators in a place like Florida, but it
doesn't seem to be. So. I do think it's a
(26:21):
matter of the base, probably for desantists, right like he
wants to run for present, needs to win a primary.
But it's I think the big test is there to
be twenty twenty four. So abortion has done really really
well on these ballot initiatives, and I was hoping that
you could talk a little bit about the ballot initiatives
(26:41):
you've seen and how they've performed and what you can
extrapolate from that. Yeah, I mean, I think the biggest
one for me on election night the biggest surprise to me.
It was Kentucky. Yeah, Kentucky. Just voters in Kentucky, conservative
Kentucky came out to support abortion rights, and I think
(27:04):
that that really shocked a lot of people. And together
with Michigan too, I mean, Michigan was able to protect
abortion rights, especially protect them, but Kentucky basically was sort
of the opposite thing. That people were coming out to say.
There was an amendment to say that there were no
explicit protections for abortion in the state constitution, and people
(27:25):
were coming out to say, no, we don't want that,
we don't want that amendment. So now what you see
are just like abortion rights advocates are just scrambling to
do this and in many places as possible. They want
to have these valid initiatives in as many places I
can effectively do them, and I do think it's tough
(27:47):
because you can't do them everywhere successfully. I think at
the same time, because they're sponsor. So right now we're
seeing some of that play out. By the kind of
thick of a summer, we'll know which states are gonna
do this for real. Next came around. So one of
the things I want to ask you is abortion has
this right has been taken away from women less than
(28:09):
a year. Now we're trying to pro choice lawmakers are
trying to figure out how to protect women. I want
to ask you, like, why has the Congress been able
to codify same sex marriage but had such tough time
with row? The great question. I mean, some people have
(28:33):
really questioned why was this not done in the Obama
era when dem felt stronger control. I mean, now there's
just not the votes for it, right, But I think
that for so long we really assumed our gas was
never going to happen, Like even after the Leek, like
people were saying that this was never going to happen.
(28:54):
And I think that it was that really ran so
deep that it was hard to get energy. Kind so denial,
I think, so yeah, yeah, I mean that's what I
think too. But it's just so shocking to me. I mean,
I don't know where we go from here. I mean,
I do think that twenty twenty four is going to
(29:14):
be massive for abortion. I mean, if a Republican gets
in the lighthouse an anti abortion Republican, which I think
that all of them so far have come out backing
some kind of national restriction. What we have seen is
really the power that the FDA has, I mean some
of the agency, the administration actually has an incredible amount
(29:37):
of power to particularly restrict the abortion pill and then
potentially helped Shepherd through a national band. So I think
that abortion rights advocates are going to be working really
hard to make it crystal clear that abortion really is
on the ballot next time around. So crazy, I mean
just and the Fifth Circuit is known to be very conservative.
(29:59):
Oh yeah, known as the most conservative in the country.
Thank you so much for joining us. I hope you'll
come baha, thank you. I would love to. Scott Shapiro
is a professor at Yale Law School. Welcome too, fast Politics,
Scott Shapiro, Oh, thank you so much, Shamali, great to
be here. Talking to you is great because like talking
to every single one of my relatives. I'm sorry, it's like, okay,
(30:25):
talking to my Auntie Esther. Yeah, that's always how I
want to be seen in the world as the same
as Auntie Esther is Auntie Esther ninety no no, no,
no no. She's the best person in the world. And
it said it's a high compliment. I'm good. You know.
She pronounces everything like cancer. Oh yeah, New York accent
thing is brutal. So, Scott Shapiro, I wanted to have
(30:46):
you on to talk because for any number of reasons.
But you're fancy Yale law professor, but you also are
involved in the Yale Cybersecurity Lab, so you have really
a bunch of skills that are you're really an expert
in all the stuff I want to talk about. But first,
before we talk about anything, we have to talk about
(31:10):
the crazy Texas judge, the Trump appointed Texas judge who
decided a federal judge from Armarillo, Texas, who decided that
the FDA approval process isn't good when they approved something
he doesn't like. Yeah, I mean that's the way we
(31:31):
got into this is that you DM me after I
tweeted the originalist case against Tayland. All right, really, this
is a shocking ruling out of Texas. The law is
really really not on the Texas judge as side, and
in fact, it's hard to think of this as anything
(31:54):
other than just like a brute power play to try
to shut down safe and legal abortions in the United States. Yeah,
that's what I wanted to talk to you about. Is
there any legal precedent for something like this at all.
Let me just say one of the biggest problems with
(32:14):
the opinion and the ruling is that it runs a
foul of something that's called the standing doctrine. And the
standing doctrine says not anybody can bring a case in
front of federal court. You have to have what's called
a case or controversy. You have to be personally affected
by it. So the one thing, if women who tried
(32:39):
to terminate their pregnancies using medication a worship got harmed
in some way, that'd be one thing. Then you could say, yes,
they've been personally affected and so therefore they have standing.
But the people who brought this suit, the plaintiffs so
when it brought the suit, are physicians, and they're not
even the physicians of particular women that have taking this drug.
(33:00):
They're worried about fallout from taking the drug, so they
really don't have any they're not personally affected, and under
standing doctrine that has been around for decades, they would
not be allowed to bring a suit, and yet they did,
and it was just affirmed in the Fifth Circuit. Let's
(33:22):
talk about that fifth circuit. So this judge was picked
by the anti abortion group that was bringing lawsuits. It
was jurisdiction chopping. He was picked because in this jurisdiction
there's only one judge, and this judge has been a
(33:42):
very vocal anti choice activist since way before he was
put on the bench. This case now went up to
the Fifth Circuit. The Fifth Circuit is notoriously shitty. Can
you explain why and how? And I know you won't
use the word shitty, but since I'm not awe where
I can use technical terms? Yeah, no, no, no, sure,
(34:03):
I'll try not to use any Latin. So the Fifth
Circuit is a very conservative circuit, and lots of the
rulings that come out of the Fifth Circuit are not
rulings that people they would describe themselves as progressive. They
don't like those decisions. I think people even in the
(34:25):
center recognize that the Fifth Circuit is really somewhat extreme
in their conservative views. I would also just say that
it's also true that the Ninth Circuit in California has
historically been known for its very strong liberal views. So
this is not something that was just invented by Republicans
(34:45):
or the Federal society. But it is true that this
strategy of stocking the federal judiciary with conservatives, and in
particular Trumpist judges has been going full tilt. I mean,
it was one of the main reasons why a lot
of conservatives supported Donald Trump, even though everything about him
(35:08):
is kind of not very conservative, not very conservative, not
very family values. So and we can talk about it,
but I think that this has created an enormous political
problem for the Publican Party because they created a monster
and now it's hard to see how they put it
back in the box. Yeah, so I wanted to ask
(35:29):
you about the I feel like the federal Society has
gotten some bad publicity lately. You've written on this a lot.
One of the interesting things about this pro PUBLICA reporting
about Clarence Thomas and his good friend Harlan Crowe. If
that isn't a superhero villain name, I don't know what
(35:50):
is his good friend Harlan Crowe, is that there is
actually no ethics provision for the Supreme Court, kind of
the cut of judicial ethics. I believe that's the name
that applies to federal judiciure doesn't apply to the Supreme Court, though,
as good law and order people, they do consult the
(36:11):
rules as they say, and I mean, you know, I
mean the thing is, I'm a law professor, are teaching
a law school, and one of the things I tell
students over and ever again, I don't everyone tells us that,
you know, there's one thing to have a conflict of interest,
you know, and that's that's bad. But the second thing
is to it's really important to avoid appearances of conflict
(36:32):
of interest. And Clarence Thomas seems to get into these
bad optics. Is like the king of bad optics. Yeah,
he is, he really is. I call him Justice hot
Dog Guy, oh break because of the hot dog Guy
meme where he's like, how did we get here? Right?
Right exactly? Guy dressed up at a hot dog sued
through the hot dog car trying to get to the
(36:53):
bottom of things. Yeah, we gotta get to about her
who did this? And I think it's just completely laughable
of when Clarence Thomas says, oh, I think the leak
of Dabbs has eroded the legitimacy of the Supreme Court,
as if that hasn't been what he's been doing for
the last several decades. I think it's a huge embarrassment
how he's been behaving but he acts to me like
(37:15):
he which technically he is untouchable. One of the things
that Justice Roberts and I don't want to give Justice
Roberts too much credit, really, I don't. But Justice Roberts
has been very much a person who we've seen behind
the scenes trying desperately to get these trumpy justices to
slow their role, to not change everything right away, to
(37:39):
keep focused on the legitimacy of the court, whatever that means.
But he also has a wife who is a legal recruiter.
I guess I want to be kind of careful, you know,
so lots of times, you know, when you have professionals
and their couples and they are their own people, and
(37:59):
so we we should be kind of careful about not
caring one partner with what the other partner does. Though
I think in the case of Justice Thomas, I think
there are really serious problems with his partner and how
he's behaved visa viright. But you know, in terms of
Justice Roberts, you know, like we you know, our partners
(38:21):
have lives too, and they have lives before Justice Roberts
in this case, you know, was elevated not only to
Supreme Court, but to the to be Chief Justice, So
I would be just kind of careful about not trying
to overcriticize the conservative majority. I think there's plenty plenty, right,
(38:44):
But I'm just saying it speaks to the idea of
why Justice Roberts might not want to go down this road. Oh,
I say, I see what you're saying. I say, I
also just think that, you know, it's called the Roberts Court,
and you know, his legacy is tied up with how
some of these really reckless people his colleagues are behaving, right,
(39:04):
And I think it paints him because I think he's,
you know, a conservative small see who wants you know,
he's got conservative views. But I think he also wants
to maintain the legitimacy legitimacy of the Court, which at
this point I think that ship has sailed. So I
want to ask you, So we have this abortion ruling,
(39:24):
one of the many problems here is that we have
also other rulings that are about mytho prostone, which are
contrary in other circuits. Can you talk about that? Yeah?
Out of Washington State, like within hours, I forgot which
one came first, but one had come out saying that
I think it was in seventeen states that the Democrats
(39:46):
that Democratic attorneys general we're trying to keep access to
abortion medications. And so now we have a situation where
we have dueling injunctions to Washington State saying that least
in seventeen states that access to medication has to be provided,
and the Texas saying that in all fifty states it
(40:09):
can't be. And so this is not great. And so
this is why we have circuit courts that as appellate
courts that try to resolve some of these disagreements. Although
the Fifth Circuit which includes Texas, does not include Washington
State here. So ultimately, if we want to get this resolved,
(40:30):
they'll probably go up to the Supreme Court. So let
me ask you about this. It seems like that you
have all these different judges with different ideas on how
this should go. The Supreme Courts about to go on vacation.
They take their summers very seriously. As somebody who also
takes the summer circuit, I don't want to be I
(40:51):
don't want to be too critical because I am you know,
we do get the summers off, not summers off. We
don't teach during the summers as academics. But yes, spring
Court has been moving really Historically they've moved slowly, but
they've been moving particularly slowly this year and last year too.
Probably some of it's COVID. Probably some of it was
(41:14):
distrust about the leak is slowing things down. Maybe there's
political tensions, institutional tensions there. I don't know, but like, right,
what's going to happen. It's hard to it's hard. It's
hard to know when they'll get around to ruling and
then what they'll rule. It's so hard to say. They
could do it on the shadow docket like they did
(41:36):
with SBA the Texas abortion law. They basically overturned Row
a year before Rowe was overturned. Yeah, basically they could
do that, which is basically not schedule oral arguments and
have hearings and then write an opinion, but basically just
vote on what they wanted to do and then just
deal with it that way. The Supreme Court has become
(41:58):
really quite even more unpredictable, I think in certain ways
institutionally and also just like who knows how they're going
to rule in this case. So that's what I wanted
to ask you about the Supreme Court because West Virginia
had a trans kids sports ban which they kicked up
to the court, and the court refused to hear it
(42:21):
on the docket, but they did. The dissenters were Thomas
and Alito. Let me say the following thing to give
listeners a sense of what's at stake here. So on
the one hand, you know, obviously access to safe and
effective abortion medication is something that one side wants a
(42:46):
lot and the other side does not want. But there's
also a thing going on, which is the standing doctrine.
So the standing doctrine, as I mentioned earlier, is about
like when are you allowed to actually bring a lawsuit?
And the standing doctrine was made more and more severe,
meaning harder and harder for plaintiffs to bring lawsuits in
(43:10):
the eighties and nineties two thousands, because it was a
way of stopping progressives from bringing lawsuits against let's say,
the Reagan administration or environmental activists would bring these lawsuits
to try to stop some agency action that would affect
the environment, and the conservative justices and judges really whittled
(43:34):
down when you were allowed to bring lawsuits. So if
the Supreme Court were to say, yes, we're going to
change standing doctrine. So now people who are really directly
affected by a law it's still challenge it. Then that
opens up the floodgates to all progressive activists who want
to challenge the things that they want to challenge. So
(43:56):
the standing doctrine was a creation in the last several days,
gates out of the conservative movement, and so now they're
being a bit hoisted by their own pitard. This is
super interesting. Thank you so much. I hope you will
come back. I would love to, and I will tell
anti Esta to listen. Molly junk Fast, Jesse Cannon. You
(44:24):
know it was the best when all these people who've
been bought things by Harlan Crowe, we're saying, no, there's
nothing wrong with Clarence Thomas taking vacation, and then another
shoe drops to make them look stupid. No, I'm gonna
go back here and say they were saying that there's
nothing wrong with having Nazi artifacts, and in fact, there
(44:44):
was an article title having Nazi artifacts does not make
you a Nazi. You horrible Internet people forever saying such
bad things about our favorite donor. Again, I ask you,
all right, let's just stop and do a thought experiment.
If a Democratic donor had the standing bull death mask
(45:07):
and cocktail napkins, personally, I would just not simp for
the guy with Hitler's cocktail napkins. But that is a
choice that all of us need to make. Anyway, Today
we learn Harlan Crowe, but Justice, Clarence Thomas's houses, numerous
(45:28):
houses that maybe Clarence Thomas couldn't sell, or maybe we
don't even know. It looks like fuckery to me, and
for that that is our moment of fuckery. That's it
for this episode of Fast Politics. Tune in every Monday, Wednesday,
and Friday to hear the best minds in politics makes
sense of all this chaos. If you enjoyed what you've heard,
(45:51):
please send it to a friend and keep the conversation going.
And again, thanks for listening.
Host
Molly Jong-Fast
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