July 8, 2025 • 61 mins
From Skrmetti to Medina to Mahmoud, the Supreme Court has been busy issuing devastating rulings on cases that carry profound implications for LGBTQI+ health and rights and reproductive health and rights. Chris Geidner, author of Law Dork, sits down to talk with us about these recent cases out of the Supreme Court, and what these rulings mean for our rights and wellbeing.
United States v. Skrmetti was a challenge of Tennessee’s Senate Bill 1, which prohibits gender-affirming care for transgender minors. By a 6-3 ruling, the Supreme Court ultimately upheld the state’s ban on gender- affirming care for transgender minors. Medina v. Planned Parenthood of South Atlantic was another case heard this term—in fact, it was a culmination of decades of attacks to Planned Parenthood and other providers, specifically targeting efforts to kick these providers out of Medicaid. In another devastating 6-3 ruling, the Supreme Court sided against reproductive health care.
Mahmoud v. Taylor was a case related to LGBTQI+ inclusive textbooks in Maryland. If parents had a religious objection to anything in the curriculum, they fought to exempt their children from the lesson. By a 6-3 ruling, the Court ruled in favor of the Maryland parents. Lastly, Kennedy v. Braidwood Management Inc. upheld a key Affordable Care Act provision requiring health insurance companies to cover certain care cost-free, but also allows the secretary of the Department of Health and Human Services –Robert F. Kennedy Jr.—more autonomy to reshape the provision.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:03):
Welcome to Repros Fight Back, a podcast on all
things related to sexual andreproductive health rights and
justice.
Hi, Reap Bros.
How's everybody doing?
I'm your host, Jenny Wetter, andmy pronouns are she, her.
So y'all, I'm recording this alittle earlier than usual.
I'm recording it on Wednesday,July 2nd, because I took the
(00:24):
rest of the week off, and I amvery excited to have a really
quiet, chill, long weekend.
I think I might have talkedabout this before, but I'm sure,
you know, I don't expect y'allto remember all the little
things, but when I get stressed,I have some stomach issues that
start to flare up and this weekhas been one of those weeks
where my stomach has been veryunhappy.
(00:46):
So I decided to go ahead andtake some extra time and just
try to unwind and de-stress andjust de-stress.
So I'm very excited and lookingforward to the weekend.
But that means there was reallygood news today, Wednesday, July
2nd.
The Wisconsin Supreme Courtstruck down the state's near
total abortion ban, which isamazing.
(01:09):
Again, as a Wisconsin I was bornand raised there.
I lived there until I moved outto D.C.
for grad school.
This is very exciting for me.
I'm so happy to see this godown.
The law was passed in 1849,which was a year after Wisconsin
became a state.
So this has been terrible, andit went in place right after Roe
(01:34):
was struck down.
It hasn't been in effect since2023, where abortion providers
were able to Thank you so muchfor joining us.
(02:02):
What a great way to kick off mylong weekend.
I'm trying not to think aboutall the other things that are
happening.
The reconciliation bill is stillmoving forward.
It still has provisions todefund Planned Parenthood in it.
We have an interview coming upthat's going to be talking about
some of those things.
We've already talked about whyit would be terrible to defund
(02:23):
Planned Parenthood, but theSenate passed their version of
the bill, and it is stillcontinuing to move forward.
The House has to take actionnow.
Again, recording on July 2nd, sothings could have changed
between now and when y'all arehearing this on Tuesday.
I really would be great to seethis bill die and not have to
(02:44):
deal with it.
But yeah, still moving forward.
But I am focusing on the big winout of Wisconsin.
I'm focusing on having a reallylong weekend with no real plans
other than to do some reading,maybe go outside if it's not
terribly hot and gross, and thenbe home at night to hang with
(03:04):
the kitties when all of thefireworks are scaring them.
So I'm really looking forward toa very, very chill weekend.
So those are the vibes I'mcarrying right now.
I'm really just leaning into thehappy bits and not worrying
about the stressful stuff that Ican think about when I start
working again next week.
Yeah.
(03:24):
That's my plan at the moment.
I'm sure that will notcompletely hold, but that is my
plan.
But I am very excited abouttoday's interview.
So let's go to that because I'msure it's going to be a longer
one because there is so much totalk about.
I am so, so excited to haveChris Geithner with Lawdork on.
We are going to be talking aboutsome of the important cases
(03:47):
related to sexual reproductivehealth and rights from this past
Supreme Court term.
I've been promising y'all thatwe have a wrap-up episode
coming, so So it is finallyhere.
I am very excited to talk toChris about all of the things
that happened at the SupremeCourt related to sexual
reproductive health and rights.
So let's go to my interview withChris.
(04:08):
Hi, Chris.
Thank you so much for being heretoday.
SPEAKER_01 (04:10):
Hello.
SPEAKER_00 (04:11):
I'm so excited to talk to you about...
the chaos that was this SupremeCourt term, but before we get
started, do you want to take asecond and introduce yourself
and include your pronouns?
SPEAKER_01 (04:22):
Yes, I am Chris Geidner, I run Lawdork, and my
pronouns are he, him.
SPEAKER_00 (04:28):
Okay, before we get into like any specifics, because
we're going to talk about, Imean, only a handful of the
cases, the ones that related tosexual reproductive health and
rights, but it feels like weshould maybe just...
What are your overall thoughtson this term?
Like I said, it felt reallychaotic.
SPEAKER_01 (04:44):
Yeah.
I mean, it was, and a lot ofthat was their own doing, the
conservatives and theirmajority, because they,
especially with the six votes,they really do have control of
both what cases they want totake and what how they want the
(05:07):
fallout to play, because there'ssort of like three main aspects
of any Supreme Court case.
It's deciding to hear it, whichthe court has virtually complete
control over its docket.
There's how they decide it, sortof the legal ruling, and that's
(05:28):
sort of what we generally thinkabout what the Supreme Court
does.
But then also importantly, it'slike how they act actually
functionally resolve the case,like what they say the next
steps are.
And I think on all three frontsthis term, we got good examples
(05:49):
of the bad chaos that you'retalking about.
SPEAKER_00 (05:53):
Okay, let's talk about one of the ones that, you
know, speaking of timing, like Iwasn't quite ready for Scrum
Eddie to come out.
Like I assumed it would be oneof the last ones.
So all of a sudden it likepopped up and I was like, oh, oh
my God, I have to deal with thistoday.
What was the Scrimetti case andwhat happened?
SPEAKER_01 (06:12):
Yeah, I mean, Scrimetti was the challenge to
Tennessee's ban ongender-affirming medical care
for transgender minors.
And although, ironically, thatbasic description, which has
been in thousands of newsarticles, is not actually what
the law is, according to JohnRoberts, who wrote the majority
(06:33):
opinion.
And what happened is that JohnRoberts told us that it is not a
law that classifies based onsex, even though the law
classifies based on sex on theface of the law.
And it's not a law thatclassifies based on transgender
status, even though if you asked100 people in Tennessee,
(06:57):
regardless of whether theysupported, opposed, or don't
know about how they feel aboutthe bill, all of them would say
it was a about transgender kids.
And despite that, John Robertstold us it was a law about age
classifications because it waslimited to under 18 and medical
(07:19):
use because it was abouttreatment for gender dysphoria.
Now, the fact that the onlypeople diagnosed with gender
dysphoria are trans people wassort of irrelevant to John
Roberts' consideration, which Ithink ultimately the sort of
long arc of history will be thereason why this decision will be
(07:41):
seen as just not a legaldecision.
We can get into it more, but thecase that he based it on was
this 1970s case about pregnancydiscrimination that everybody
agrees was a bad decision, but Iwould argue that applying it
(08:02):
here was...
not even bad faith.
It was just like, it was thesort of thing that if a law
student had proposed this in apaper like five years ago, a
teacher would have flunked them.
There's no coherence to theargument.
And so, but because he did that,there were no classifications on
(08:27):
the law as he and the majoritywere considering it, that the
court recognized as gettingheightened scrutiny.
And that's when the courts lookat laws that classify people.
Basically they say, You know,all laws classify like that.
That's what laws do.
(08:48):
And most of the times we don'treally care about that because
laws have to classify like who'scovered by a law and who
doesn't.
But when laws classify in a waythat we think is merits
additional scrutiny because itis traditionally not something
(09:10):
good when governments classifypeople that way.
We give extra scrutiny and theprimary one is race gets strict
scrutiny, which means that it'sgenerally going to be struck
down.
The legal test is you have toprove that there's a compelling
state interest in thatclassification and that it is as
(09:33):
narrowly tailored as it can beto catch that.
But then, specific to this case,there's sort of a middle group
called intermediate scrutiny,and that's what sex
classifications traditionallyhave gotten.
And in order to classify peoplebased on sex, what the courts
have said is that you have toshow that there's an important
(09:57):
interest and that theclassification, the law, is
substantially related to thatand so basically what that means
is that sometimes it'll beallowed but that generally we're
still going to look at thatsuspiciously and but because
John Roberts said there was noneof those classifications here we
(10:21):
just used rational basis whichis that lowest level the
basically it gets through leveland you just have to prove that
there's a legitimate reason andAnd as bad as the classification
decision from Roberts was, whathe actually did in the next
(10:43):
part, I think, was in some wayseven worse.
Because what he decided was, ifyou've been following this issue
of gender affirming care,like...
There has been this veryintentional effort from the
right to create a debate, topull out a few outlier cases,
(11:04):
get those people in front oflegislatures, get them talking
about it, create this debatearound detransitioners, which is
like handful of people, asopposed to the thousands of
children who are trans, whichstill in the scope of the world
is basically no children.
(11:25):
and what john roberts did issaid we don't even under a
rational basis we don't evenneed to get into that debate and
decide if they were right allthat we need to do is say that
tennessee lawmakers saw thatthere was a debate and wanted to
(11:50):
restrict because they knew therewas this debate.
And he literally said that thatwas enough.
And I think that that isstriking for how much it waters
down the little bit of teeththat Rational Basis had and It
also shows how utterlyunjustified his decision not to
(12:15):
find any classification herewas.
Because the very discussionsthat he was talking about, the
debate that he was using torationalize his rational basis
approval, was all based ontransgender people.
It was all based on transgenderstatus.
(12:36):
It was all based on sex-basedclassifications.
He almost had to just say thedebate was enough because if he
even started quoting thearguments if he even had to get
into the arguments it would havemade that first part of his
ruling look utterly insanebecause every lawmaker talking
(13:00):
about it every witness talkingabout it every advocate for or
against it was going to besaying what are you doing to
transgender kids or theselefties are trying to
indoctrinate and tell kidsthey're transgender.
Like there would literally havebeen no way to get into the
(13:23):
debate beyond saying debate isenough without acknowledging how
faulty the logic of the firstpart of his decision was.
But he did that.
And because of that, you had noclassification that got more
scrutiny.
And he watered down what thatrational basis could scrutiny
(13:43):
was to basically nothing.
And therefore, not only are thelaws allowed, not only does that
mean that virtually all of theother states would be allowed,
but you also sort of had thiseven the things we didn't decide
are getting skeptical look aboutthem, because since they decided
(14:12):
that the Tennessee law was not atransgender status
classification, they didn'tresolve one of the questions
that was before them, which waswhat level of scrutiny of those
three levels that I talked aboutdo laws and classifications
(14:32):
based on transgender status yet.
So they didn't even resolve thatquestion.
But obviously, with the way thatthey were talking about it, it
was hard to imagine that theywould give it heightened
scrutiny.
And also, Justice Barrett,joined by Justice Thomas, wrote
a concurring opinion saying thatif and when we do reach that
(14:56):
question, I think it's clearlygoing to be a rational basis.
And interestingly, JusticeAlito, so you had the three
Democratic appointees dissented,led by Justice Sotomayor in a
powerful dissent, basicallysaying a lot of what I've just
told you.
Justice Alito, I think, was insome ways the most interesting
(15:20):
opinion.
I really question what's goingon with him.
And, like, dare I say I'mdefending Justice Alito, and
this will be the first time inthe history of Chris Geidner
that I've said somethingpositive about Justice Alito.
But he kind of called out thesecond part of Robert's
(15:42):
bullshit.
He said...
I'm not quite sure how you saythis is into classification
based on transgender status.
Now, he said, ultimately, Idon't need to...
make that decision because I'mgoing to assume it is a
classification based ontransgender status.
(16:04):
And I'm going to say thattransgender status gets rational
basis review.
And I think the law would passunder rational basis review.
But I think it was reallyinteresting that Alito did not
give them that out.
So, like, technically thatdecision was 5-4.
(16:26):
which is really interestingbecause what that means is that
All five of those justices whodid join it, so all of the other
Republican appointees, are heldaccountable for that and should
be.
So that includes Barrett, whohas been trying to sort of play
(16:47):
this, I'm a thinker, I'm goingto look at these cases
objectively and reach anindependent conclusion in each
case.
Like, if you were willing to goalong with a rationale that even
Judge Sam Alito calls JusticeSam Alito called out, you really
need to think about what you'vedone.
(17:09):
Like, it's sort of like, I mean,I'm a pretty...
not just outspoken, but loudperson.
And one of the things that Iused to say in law school to
people in the library was like,I would go up to them and be
like, so you're being a littleloud and I don't really care.
(17:32):
But if I, Chris Geidner, thinkthat you're being loud in the
library, think what everybodyelse is thinking.
And it's sort of that logic.
Like if Justice Sam Alito issaying that your legal reasoning
is poor, go back to the drawingboard.
SPEAKER_00 (17:51):
The thought that the debate is enough is...
Like, that's terrifying.
And how big that could get.
SPEAKER_01 (17:58):
It's astounding to me.
Yeah, it's really bad.
SPEAKER_00 (18:03):
Yeah.
Well, and I also was justthinking what really struck me
on that day when the decisioncame down, it was also the day
we found out about the cut inservices for 988, getting rid of
the LGBTQ extra services.
And now just today, did I seethey're picking up trans people
in sports?
Like, this is not the end.
SPEAKER_01 (18:23):
Yeah.
So, I mean, now Now, the good,bad, and evil of that is that
that is now going to be thatequal protection question.
It's going to be next toimpossible to avoid the question
there.
And I haven't had time to lookover what they actually granted
(18:47):
in because it's coming soclosely after.
I'm still working on closing outthis term.
And like the reality is thatwe're going to now have full
briefing, unlike the shadowdocket questions.
Like, I mean, this is like infor all the bad that this will
be.
Like when we talk about like whyshadow docket decisions are so
(19:11):
dangerous, these emergencyapplications that the Trump
administration keeps taking upquickly.
This shows like a good exampleof why those are so bad.
And like, so what this means nowis, is that we now know that
they're going to be hearingthat, like, even if you assume
(19:31):
the worst case scenario, which Ikind of think you need to in
light of the not even subtlesignals that we've gotten from
the court, some of the otherones of which I've written about
and we can talk about, the factthat they've now granted it,
it's July 3rd, we...
have all summer to be addressingit.
The parties are going to bebriefing the merits of these
(19:55):
cases out of Idaho and WestVirginia.
The Amici, which is friend ofthe court briefs, all of the
organizations and individualswho have history, like you think
about the issues that JusticeBarrett asked about and wrote
about, whether there's a historyof discrimination against trans
(20:16):
people.
I think we're going to begetting some some really uh
fulsome historians briefs thatare going to to explain i mean
i'm sure the merits briefs willas well but i expect we're going
to get some some prettyextensive historians briefs in
this case uh explaining tojustice barrett how her lack of
(20:41):
education on this issue needs tobe corrected and we've got that
time and then there will be oralarguments like this was just
granted now.
They've already granted somecases, so it probably won't be
till November or December.
The Scrametti case was grantedaround now last year, and it was
heard the first week ofDecember, which is the third
(21:04):
sitting of the term because thejustices start in October.
So it'll probably be lateNovember or December.
And then we'll have months afterwe know how the arguments went
to deal with that prepare, lookat what needs to be done to
protect people.
And so the decision willprobably be in June of next
(21:27):
year.
And I do think that As importantat times as getting quick
resolution, like obviously thebirthright citizenship, because
they said it's going, a clearlyunconstitutional executive order
is going to go into effect inpart on July 26th.
(21:48):
Like that needs to be resolvedand get back to the court
quickly.
But in a situation like this,where a lawsuit has been ongoing
for five years now, four yearsnow, I think that it's really
good that we're now going tohave a year to talk about these
issues, to make the best case tothe court, to make the case to
(22:10):
the public, to prepare transpeople for what protections they
need for themselves, whatprotections state and local
governments in areas where theycan provide them in addition to
any federal equal protection, sothat that can all happen in a
(22:31):
more methodical way than, forexample, a January 20th
executive order from thepresident that purports to do
unconstitutional things at thestroke of a pen that then need
to go into immediate litigation.
SPEAKER_00 (22:49):
Okay, that's a lot on Scrimetti.
That was a big case, hugeimplications.
The other big one that is goingto have...
big implications for sexualreproductive health, but also
for so many other things is theMedina.
Medina.
Yeah.
SPEAKER_01 (23:05):
Before we do that, just since we're not going to go
a lot into it, I just want tolike some strands in between
Scrametti and today's grants.
Yeah.
It's important to know that inbetween there, we had a couple
of things that happened that Iwrote about it a lot of work and
you can look at and read, butYou had Mahmood versus Taylor,
(23:30):
which was this decision overLGBTQ plus inclusive textbooks
in Maryland, Montgomery Countyclassrooms, where Justice Alito
was not showing his moreenlightened self.
And they essentially, I mean,not essentially, they said that
there is a, that parents, ifthey have a religious objection
(23:55):
to anything in In thecurriculum, they basically have
a right to get notice of thatand a right to opt their
children out of it, which isabsolutely insane, absolutely
counter to the court'sprecedence in these areas.
(24:16):
This was a free exercise case,and the court, Justice Sotomayor
and her dissent here, reallylaid out how the quote chaos
that this was going to unleashfor school districts the only
sort of opt-outs that schoolshave had previously are
(24:39):
generally like self-containedlessons like essentially sex ed
class is the big one and her herpoint was like how do you do
that when it's like a book thatlike these books were not even
like a chapter you in a lessonplan they were books that would
(25:02):
be on the shelves available tobe picked out by students and if
the students chose these booksthere were like lesson plans for
the day that would go along withit like when you have like
read-along time where theteacher like reads a book and
the kids talk about it it'sutterly unhinged and but it was
(25:24):
sort of based in this freeexercise right.
Then on Monday, the court, whichin Scrimetti, the case was
labeled US versus Scrimetti, ifyou notice these things.
And that's because the case thatthey actually took up was the
(25:44):
case that the Biden JusticeDepartment asked the justices to
take up, not the two cases thatthe individual plaintiffs, the
trans kids and parents anddoctors had brought in Tennessee
and Kentucky.
And the reason for that was thatthe Justice Department just
(26:07):
asked those two equal protectionquestions about sex
classification and transgenderstatus.
The individual plaintiffs alsoasked a third question about
parental rights under the dueprocess.
There's a line of cases thathave to do with a parent's right
to Now, on Monday, literallythree days, the next business
(26:34):
day, as the Justice Departmentis regularly saying these days
in cases when they say thatthey're being overwhelmed by
court decisions, the nextbusiness day, less than 24 hours
after the court issued this bigparental rights ruling on
Mahmoud, they denied the certpotential.
(26:56):
of the individual plaintiffs inthe Kentucky and Tennessee
cases, which meant they weren'tgoing to take up that parental
rights question when it came totrans kids.
And the way that I wrote aboutit at LawDark was like the
message from the court waspretty clear.
It was, if you have LGBTQrelated concerns, anti-LGBTQ
(27:23):
concerns, the court is going tolisten to them and find a way to
protect them if you have actualconcerns for LGBTQ people, your
children, the court is justgoing to ignore that and not
even take up that case.
And so that happens.
And then on Thursday, the courtsays, but we are going to take
(27:46):
up this case where LGBTQ kids,where trans kids won below, and
the state is asking for anappeal.
And we're going to hear thesesports ban cases.
And then just Just to put acherry on top, there was a case
out of...
(28:06):
Montana, you would probablyknow, I forget, the abortion,
the parental consent case.
SPEAKER_00 (28:16):
Yeah, I think that's
SPEAKER_01 (28:17):
Montana.
The Montana Supreme Court, Ithink it was, had struck down a
parental consent there underabortion law, under Montana
Constitution.
And the state wanted to takethat up and ask the Supreme
Court to review it.
Or no, no, The challengers,whoever wanted to take it up and
(28:41):
said, wanted a parental rightscase there saying, no, no,
parental rights when it comes toabortion are really important
and you shouldn't be able tohave this exemption to allow
minors to get an abortionwithout their parental consent.
And the court did deny that.
So they let that Montana SupremeCourt ruling in effect.
(29:03):
But Alito and Thomas wrote astatement there basically
saying, this is a really poorvehicle because it had been
argued below only as a Montanaconstitutional case.
They hadn't been talking aboutthe federal constitution and
parental rights.
So we don't think this is a goodvehicle to resolve this
(29:25):
question.
And they specifically said,basically, you should not take
anything out of this about themerits of that claim that
there's an argument that is tobe made that there's a parental
right to be informed before yourchild can get an abortion, which
I think is really the cherry ontop because we didn't get a
(29:48):
statement like that from one ofthe Democratic appointees on
Monday when it came to the sameissue when it came to parents
caring about their trans kids.
SPEAKER_00 (30:01):
That was really great to hear that progression
because I think With all of thethings happening, I took notice
of all of them, but having thatline drawn was...
SPEAKER_01 (30:13):
Yeah, that was literally over six days.
That was over seven days.
I mean, from Friday to Thursday,that's what happened.
We had five different trans andor parental rights cases that
basically the way they came outwas...
(30:33):
wholly based on whether it wason the left side of the ledger
or the right side of the ledger.
And the one case that didn'tcome out that way, two of the
most conservative justices wroteto say, don't take it as a bad
sign for the right.
SPEAKER_00 (30:52):
Okay.
Medina.
So
SPEAKER_01 (30:54):
yeah, with that, Medina.
So...
Medina was this case that reallyshouldn't have been the case
that it became.
It was essentially just one ofthese ongoing efforts to defund
(31:15):
Planned Parenthood.
And what that involved doing wassort of a two-step thing.
It was saying that we're goingto the South Carolina was going
to not fund Planned Parenthood.
They essentially said it wasbecause of their abortion
(31:37):
provision and because eventhough the state funding
wouldn't go to abortions, moneyis fungible.
So they were indirectlysupporting the abortion services
that Planned Parenthood providedto patients who needed them.
And that's like part one.
(31:57):
Then the providers and patientssued because under the Medicaid
Act, there's a provision thatsays that it was known, I guess
we should say.
I mean, it technically still is,but where we're going
essentially means that it'sworthless.
(32:18):
There's a provision that wasreferred to as the any qualified
provider provision.
And what that provision said ispretty self-explanatory.
from the words that are used todescribe it.
It says that under Medicaid, youare allowed to choose, have any
qualified provider provide youwith the needed medical care
(32:40):
that you have.
And essentially, that was aprovision intended so that the
state couldn't just pick aprovider, so that they couldn't
pick and choose who they wantedto provide services to
essentially create like a winnowto either sort of corruption or
(33:02):
provide only bad services toMedicaid patients.
Those were sort of the twoconcerns animating it.
And sort of essentially whatSouth Carolina did was right in
that wheelhouse because that wasthe provider that they wanted.
And a lot of the reasons, if youlike actually dig into the case,
(33:26):
the reason why these people saidthese the client the plaintiffs
in the suit like said that theywanted this is that they
specifically wanted to go toPlanned Parenthood because that
was where they didn't feeljudged for their conditions that
was where they felt safestgetting medical care that was
where they felt they could askthe questions that they needed
(33:47):
to ask so like it truly wasright in the wheelhouse of why
this had been created then Thenext phase in this case comes
with, well, what do you do ifyou have this law?
It's not being followed in yourview and the state is trying to
(34:11):
cut funding.
So they sued under 1983, whichis a federal law that is used
for basically when you sue the astate or local official for
violating your rights.
And the traditional lawsuit thatyou hear about 1983 actions that
(34:34):
like, is what you're thinkingabout generally is like prison
inmates, when violence happensin prisons, when prison inmates
are abused, when there'swrongdoing in prisons.
But the truth is that this islike a key civil rights law that
this came out of the CivilRights Act of 1871, that this is
(34:58):
a law that evolves out of theReconstruction era and has a
very broad interpretive purposeof affecting anybody's rights.
And they were looking atsituations, and now, like, you
have to take it to one level ofgenerality to, like, think that
(35:21):
I'm talking about today's case,but But it's not that difficult.
They were looking at situationswhere state and local officials
had an ideological opposition tothe basic treatment that people
were wanting to get to implementtheir legal rights under federal
(35:46):
laws, but state and localofficials did not want to
respect that.
And the federal governmentcreated a law that said, no,
you're not allowed to do that,state and local officials.
We are going to create a rareinstance where we are going to
(36:08):
say that individuals can haulstate officials into federal
court.
That was obviously in theReconstruction era.
That was Southern governors whowere denying rights to newly
freed slaves.
That is Southern governors whodidn't want these freedmen to
(36:30):
become parts of society.
But like that level ofgenerality that I just took out
that one little fact, whichimportant to note, is not in the
law.
The law does not say it onlyapplies to black people.
The law does not even say itonly applies to race.
It applies to all people who arebeing, having their rights
(36:53):
violated.
And they brought this lawsuitand it went up and essentially
we go through the courts and theconservatives have tried to pull
back the right of people to sueunder 1983 for a while now.
(37:19):
And this took it even further.
And you got this opinion fromGorsuch, Justice Gorsuch.
It was, again, another 6-3decision.
And he essentially said, insteadof looking, I mean, you look at
these conservatives whoeverything else is about history
(37:40):
and tradition, but But when itcame to this case, Justice
Gorsuch literally turned to a2023 decision and the court's
analysis of a nursing statuteand said, well, look, the
nursing statute actually saysthe word right several times in
(38:05):
the statute.
And that's why we said that thatis the type of statute that
creates a right.
And we have said that you canonly bring a lawsuit under 1983
for a statute as opposed to aconstitutional violation when
(38:27):
there is clear rights-creatinglanguage in the statute.
Now, Contra that, at oralargument, Justice Kagan was
talking with the lawyer for thestate who was trying to defend
this argument.
And she, like, I mean, JusticeKagan doesn't get flustered.
(38:49):
So, like, it was kind of someacting.
Like, she knew what she wasdoing.
She knew what she was saying.
But, like, at one point, she'stalking to the lawyer and she
goes...
You can't even describe thiswithout calling it a right.
Like, what?
It's an awareness of the abilityto obtain a provider of your
(39:10):
choice?
Like, it's a right.
Like, that's what it is.
But Gorsuch said no, since thestatute itself didn't use that
language, that specific word,which like at arguments, they
were saying, oh, no, we don'twant a magic words test.
But that's essentially what hedid, that the language is that
(39:34):
this nursing statute provided,quote, the only reliable
yardstick against which tomeasure whether spending power
legislation confers a privatelyenforceable right.
And so, essentially, they cut awhole chunk out of 1983
(39:55):
litigation, which basically Thisis like a win-win for
conservatives because theyalways want to cut down 1983
legislation and this let them doso in a case where they were
giving a win to the defundPlanned Parenthood movement.
SPEAKER_00 (40:12):
Yeah, and I think that's a really important point
that it is bigger than justPlanned Parenthood because I
think a lot of the coverage hasreally focused on the Planned
Parenthood part.
And one, it could also be otherproviders that could be
targeted.
It is going to end Well, and
SPEAKER_01 (40:30):
not just providers.
This essentially said thatwhenever you use the spending
clause, which is the broad way,that's essentially how...
I mean, because remember, 1983is only about state and local
actors.
It's not about suing the federalgovernment.
And so...
The spending clause is one ofthe only ways, because we have
(40:53):
this great system of dualsovereignty where states retain
their own rights.
Basically, the spending clauseis one of the only ways that the
federal government can make thestates do things unless you pass
a new amendment, because thefederal government gives out so
much money to states that theycan attach conditions to it.
(41:14):
And so the question here is whenthe spending clause is the mode
that Congress has used to createa state obligation, when can
that statute create the abilityfor an individual to sue under
(41:37):
1983 if they aren't if the statesays, no, we're not doing that.
And the limit to that is thisFINRA, this, I don't even,
that's not, FINRA is a separatething, the Federal Nursing
Healthcare Act, that basicallyyou literally have to have the
(42:00):
word right, right, right,patient, client, whatever the
individual language is,throughout the statute in order
to do that.
Otherwise, what Gorsuchliterally said.
Otherwise, the only way ofaddressing state noncompliance
is the federal governmentpulling funds.
(42:21):
And so if you don't have anexecutive that is interested,
and this would apply to bothsides, if you don't have a, but
of course, it willdisproportionately affect
Democratic left side litigationbecause they're more interested
in rights-based litigation, butthat essentially, if you don't
(42:47):
have the White House in yourcamp, there is no way of dealing
with states that don't want toenforce this spending clause.
SPEAKER_00 (42:58):
Okay.
Again,
SPEAKER_01 (42:59):
And in addition to that, sort of part two of that
was, that's even further removedfrom this case is there's always
one of the most common things tohappen in the U.S.
Supreme Court today is JusticeClarence Thomas writing.
Justice Clarence Thomas, for thefirst 20 years of his time on
(43:21):
the court, wrote solo dissents.
We all knew Clarence Thomaswould regularly write solo
dissents, talking aboutsomething crazy about how he
thought the law should beinterpreted.
Unfortunately, now thereconcurrences.
When they're not the majorityopinion, they're concurrences
because they are, he agrees withthe ruling because it's the
(43:44):
conservatives winning, but he'llwrite a concurring opinion
explaining how the court couldgo even further and how he
wishes it would.
And this time, it was to saythat he thinks the court is
looking at 1983 litigation writlarge wrong.
(44:04):
And remember when we talkedabout the fact that, like, this
was a civil rights era,legislation, reconstruction, he
essentially was like, we need togo back to that and re-look at
this and consider how narrowlythis should be interpreted.
That led to an even sharper partof her dissent from Justice
(44:28):
Jackson, who was like, Whoa,buddy.
And I thought that this was areally interesting reality that
is a really strong, powerful,good thing about having Jackson
on the bench.
For a long time, literally,since he took over, because he
took over Justice Marshall'sseat, since Justice Thomas took
(44:53):
the bench, he very much has feltfree to declare how civil rights
statutes and the reconciliationamendments should be looked at.
And bluntly, a lot of whitejustices were like, we'll let
him do that.
He didn't have the majority.
He was often writing forhimself.
But like, nobody was like, no,you're wrong, Justice Thomas.
(45:17):
Until Justice Sotomayor came on,she started saying some of it.
There were occasional thingswhere Breyer or Ginsburg would
be like, what's he doing here?
But now, Justice Jackson is verycomfortable, very quickly
saying, what are you talkingabout?
(45:37):
And she wrote a very harshdissent that was good.
She said, because his opinion isnot tethered to the specific
facts or arguments presented inthis case, an extensive response
is not necessary here.
But it is worth pausing brieflyto think about whether the
(46:00):
historical account he wroteoffers reflects the level of
depth, nuance, or context neededto support the wholesale
reappraisal he is envisioning.
I mean, she basically said, whatare you, she later said, more
caution, parentheses, and moreresearch, end parentheses, may
(46:23):
be warranted before ourlongstanding precedents in this
area can be seriouslyscrutinized or attacked.
That's some good stuff.
And in between there, she did.
She didn't go on at length, butshe put like a page or two of,
she went back and looked at likewhat actually was going on then.
(46:47):
What were people talking aboutthen?
What was the broader contextintended there?
I think, and this is somethingthat I've talked about
elsewhere, I think that JusticeJackson is getting very
comfortable and ironicallyperhaps from growing up in an
era of watching Justice Thomas'solo dissents where she is very
(47:15):
comfortable giving a solodissent.
If Sotomayor wants to join,she's happy.
If Kagan wants to join as well,come on board.
But she is very comfortableissuing a solo dissent to say no
you're wrong.
Your history is wrong.
(47:35):
Your alleged reliance on historyand tradition is wrong.
And I'm going to call it outwhen you do so.
And she'll go outside of historyand tradition and she'll say,
no, why are we even looking athistory here?
Let's look at what's actuallyhappening.
Let's look at the reason whythey passed these amendments.
(47:58):
Let's look at the reason why theforward look purpose of these
statutes.
She's also given some incredibledissents in labor law, which I
think is really interesting, andI've been watching closely.
And I just, I think that it'svery good that we have someone
(48:20):
who knows that she's going to beon the bench for Most likely for
much longer than the two otherDemocratic appointees with her.
And she is very comfortable sortof laying out her own position.
But it's not that she sees it asas like, Yeah, absolutely.
(49:13):
of the court today, but Congressshould act or like the Ledbetter
decision.
I'm thinking of the VotingRights Act dissent in Shelby
County that essentially sayinglike, look outside, look at
what's happening, act public,act Congress.
(49:34):
Jackson doesn't need to do thatbecause she is, she's laying
forth a public vision that is,is the, the way that we that she
believes we should be looking atat The Constitution, the law,
our democracy, our republic, Ithink it is that big.
(49:55):
You look at her solo dissent inthe nationwide injunctions case
on Friday is a perfect exampleof that.
SPEAKER_00 (50:03):
Okay, Chris, I want to be respectful of your time.
So don't want to keep going toolong.
But maybe we want to do a realquick hit on Braidwood since it
was prep was at the center ofthat.
SPEAKER_01 (50:14):
Yeah, Braidwood was the case that started as a
right-wing vehicle case.
It was brought by JonathanMitchell, the former SG of
Texas, Solicitor General ofTexas, who had been behind SB8,
Texas' vigilante enforcementabortion ban.
(50:35):
He brought this case on behalfof these far-right religious
employers who didn't want tocover prep or contraceptive care
as they need to do according tothe Affordable Care Act, the
preventive care requirements inthe Affordable Care Act.
(50:57):
And they, of course, filed thisin the Northern District of
Texas, got their Reed O'Connor,one of the two single division
judges who are far, far, farright.
Reed O'Connor, sort of, they gotone of these...
you got too much of a goodthing.
Reed O'Connor sort ofincidentally blew up the case by
(51:21):
not just banning PrEP andcontraceptive care, but striking
down the entire preventive caretask force panel that was behind
the recommendations that led tothe PrEP and contraceptive
coverage being included.
He also would have struck downtwo other boards and Then when
(51:44):
it went up to the Fifth Circuit,the Fifth Circuit said, well,
he's wrong on these two otherboards, but he's right on the
Preventive Care Task Force.
And the irony of the PreventiveCare Task Force is it was a
Reagan-era creation thatbasically is what it sounds
like.
It was a bunch of experts whorecommend what they think we
(52:06):
need for preventive care.
When the ACA was passed in 2010,they were like, oh, we don't
need a new task force for this.
There's one that exists.
So we'll use theirrecommendations to create this
ban on cost sharing thatessentially said any
recommendations from this taskforce, you can't have a copay or
(52:29):
other cost sharing under yourinsurance plans.
It gets up to the Supreme Court.
It's blown up because it is thiswhole task force.
It's cancer screenings.
It's mental health carescreenings for kids.
It's like hundreds ofrecommendations since 2010 that
would have been impacted.
(52:50):
The Biden administration wasopposed to it.
There were these other,everybody outside was opposed to
it.
Then the Trump administrationtakes over.
And this is a case where theydidn't change sides, even though
it was a far right caseinitially.
They didn't switch sides.
They didn't say we disagree withthe Biden administration.
(53:12):
They might have argued it alittle differently but we get to
the ruling and essentially thethe ruling was this task force
is just like any other taskforce the justices at argument
made it clear where this wascoming out they were like what
are you talking about do youreally think that like buried in
(53:33):
the ACA was the creation of anindependent agency that has no
other power than this one lineitem of recommendations that the
HHS secretary ultimately canreject.
It was all hinged on thislanguage in the appointment of
(53:57):
these people that they'resupposed to be like, I forget
the exact language, but it wasessentially like, removed from
politics as possible.
That was all that it's like, Ido, the quote is as possible.
And Like...
you had like Jonathan Mitchellup there arguing essentially
(54:18):
that like that meant that theywere this insulated agency that
was couldn't be removed andneeds to be it's this it gets
into this whole complicated areaof law about the appointments
clause which would mean that ifJonathan Mitchell was right the
(54:39):
members of this preventativecare task force would need to be
appointed by the president andconfirmed by the Senate as
opposed to being like apart-time twice a year meeting
that are like appointed itwasn't even generally appointed
by the HHS secretary it was bylike one of the subdivisions of
(55:00):
HHS and where we get in theruling is ultimately an
agreement that these areinferior officers which like duh
and their authority is is vestedon under the HHS secretary,
which is the way that anythingunder any agency ultimately is
(55:21):
determined.
Now, that's the win.
The complication is best seenwhen you look at one of the
other two panels that providesthe recommendations that are
covered under the PreventiveCare Task Force that you might
have read some stuff about.
It's ACIP, and that's the onewhere RFK Jr.
(55:43):
kicked off all of the boardmembers and then replaced like
half of them with vaccineskeptics.
Essentially, after Braidwood,RFK Jr.
is free to fire the entirePreventive Care Task Force and
replace them with whoever hewants.
So we could see some,essentially, Jonathan Mitchells
(56:06):
being appointed to thePreventive Care Task Force who
then do try to cut PrEPcoverage.
And who knows what else thatthings that RFK Jr.
has decided aren't actuallythings, even though science says
they are, and cut them.
(56:28):
And that will lead to thenlawsuits over the authorization
for those appointments, the APAlawsuits, Administrative
Procedure Act lawsuits overwhether the decisions to remove
certain care were reasoned tobe.
or whether their removal wasarbitrary and capricious.
So there's a whole new line ofcases that could come.
(56:51):
But with so much of the Trumpadministration and this moment,
the thing that I like to talkabout and that I'm going to be
writing about this Sunday atLawdork is that a big win is
possible.
slowing down, stopping anyindividual movement and forcing
(57:15):
them back to the drawing board.
There was a district courtruling on Wednesday night,
Thursday morning from Judge JohnBates, a George W.
Bush appointee in DC, who saidusing that APA under the
Administrative Procedure Actsaid that if you remember back
(57:38):
at the end of January, whenthere was that like mass order
to delete any website that was apublic-facing website that had
the word transgender on it.
He issued a ruling overnight,Wednesday to Thursday, that said
that wasn't the OPM memodemanding those website removals
(58:01):
and the HHS memo that apparentlywas issued on January 31st and
said they had to implement itthat day were arbitrary and
capricious and he vacated thosememos and sent them back to OPM
and HHS to try again.
And What that means, it'sanother just like Braidwood that
(58:24):
like sent back to the drawingboard.
And all of those websites thatwere removed because of the OPM
or HHS memo within HHS have tobe put back up for now.
And that's at least a temporarywin.
I mean, one, it's a proceduralwin.
It is a legal win.
(58:45):
But more importantly, it putsthe info back up and online.
So that people can, if there wasinfo that wasn't downloaded
before it was taken on the 31st,they can download it.
Outside organizations candownload it.
And in this case, this wasbrought by Doctors for America.
(59:06):
We can literally live to fightanother day.
SPEAKER_00 (59:08):
Yeah, that was great news when I saw that last night.
And I totally agree with thedelay and trying to just gum up
the works as much as possible isthe way forward.
Well, Chris, thank you so muchfor being here.
As always, it was an absolutepleasure to talk to you.
And just thank you.
SPEAKER_01 (59:26):
Thank you.
SPEAKER_00 (59:28):
Okay, y'all, I hope you enjoyed my interview with
Chris.
I mean, it feels kind of weirdto say enjoyed when we were
mostly talking about terrible,terrible things, but it's always
wonderful to get to talk to himabout all the things that are
going on at the Supreme Court.
I always enjoy having aconversation with him, so I'm so
grateful that he was able tocome on and talk to me about
what happened this term.
(59:49):
So with that, I hopeeverybody...
Had a wonderful long holidayweekend.
Since you're hearing this afterthe weekend, I hope I had a
wonderful long holiday weekend.
And I will see everybody nextweek.
If you have any questions,comments or topics you would
like us to cover, always feelfree to shoot me an email.
You can reach me at Jenny,J-E-N-N-I-E at
(01:00:09):
reprosfightback.com or you canfind us on social media.
We're at Repros Fight Back onFacebook and Twitter or Repros
FB on Instagram.
If you love our podcast and wantto make sure more people find
it, take the time to rate andreview us on your favorite
podcast platform.
Or if you want to make sure tosupport the podcast, you can
also donate on our website atreprosfightback.com Thanks all!
Welcome to Repros Fight Back, a podcast on all
things related to sexual andreproductive health rights and
justice.
Hi, Reap Bros.
How's everybody doing?
I'm your host, Jenny Wetter, andmy pronouns are she, her.
So y'all, I'm recording this alittle earlier than usual.
I'm recording it on Wednesday,July 2nd, because I took the
(00:24):
rest of the week off, and I amvery excited to have a really
quiet, chill, long weekend.
I think I might have talkedabout this before, but I'm sure,
you know, I don't expect y'allto remember all the little
things, but when I get stressed,I have some stomach issues that
start to flare up and this weekhas been one of those weeks
where my stomach has been veryunhappy.
(00:46):
So I decided to go ahead andtake some extra time and just
try to unwind and de-stress andjust de-stress.
So I'm very excited and lookingforward to the weekend.
But that means there was reallygood news today, Wednesday, July
2nd.
The Wisconsin Supreme Courtstruck down the state's near
total abortion ban, which isamazing.
(01:09):
Again, as a Wisconsin I was bornand raised there.
I lived there until I moved outto D.C.
for grad school.
This is very exciting for me.
I'm so happy to see this godown.
The law was passed in 1849,which was a year after Wisconsin
became a state.
So this has been terrible, andit went in place right after Roe
(01:34):
was struck down.
It hasn't been in effect since2023, where abortion providers
were able to Thank you so muchfor joining us.
(02:02):
What a great way to kick off mylong weekend.
I'm trying not to think aboutall the other things that are
happening.
The reconciliation bill is stillmoving forward.
It still has provisions todefund Planned Parenthood in it.
We have an interview coming upthat's going to be talking about
some of those things.
We've already talked about whyit would be terrible to defund
(02:23):
Planned Parenthood, but theSenate passed their version of
the bill, and it is stillcontinuing to move forward.
The House has to take actionnow.
Again, recording on July 2nd, sothings could have changed
between now and when y'all arehearing this on Tuesday.
I really would be great to seethis bill die and not have to
(02:44):
deal with it.
But yeah, still moving forward.
But I am focusing on the big winout of Wisconsin.
I'm focusing on having a reallylong weekend with no real plans
other than to do some reading,maybe go outside if it's not
terribly hot and gross, and thenbe home at night to hang with
(03:04):
the kitties when all of thefireworks are scaring them.
So I'm really looking forward toa very, very chill weekend.
So those are the vibes I'mcarrying right now.
I'm really just leaning into thehappy bits and not worrying
about the stressful stuff that Ican think about when I start
working again next week.
Yeah.
(03:24):
That's my plan at the moment.
I'm sure that will notcompletely hold, but that is my
plan.
But I am very excited abouttoday's interview.
So let's go to that because I'msure it's going to be a longer
one because there is so much totalk about.
I am so, so excited to haveChris Geithner with Lawdork on.
We are going to be talking aboutsome of the important cases
(03:47):
related to sexual reproductivehealth and rights from this past
Supreme Court term.
I've been promising y'all thatwe have a wrap-up episode
coming, so So it is finallyhere.
I am very excited to talk toChris about all of the things
that happened at the SupremeCourt related to sexual
reproductive health and rights.
So let's go to my interview withChris.
(04:08):
Hi, Chris.
Thank you so much for being heretoday.
SPEAKER_01 (04:10):
Hello.
SPEAKER_00 (04:11):
I'm so excited to talk to you about...
the chaos that was this SupremeCourt term, but before we get
started, do you want to take asecond and introduce yourself
and include your pronouns?
SPEAKER_01 (04:22):
Yes, I am Chris Geidner, I run Lawdork, and my
pronouns are he, him.
SPEAKER_00 (04:28):
Okay, before we get into like any specifics, because
we're going to talk about, Imean, only a handful of the
cases, the ones that related tosexual reproductive health and
rights, but it feels like weshould maybe just...
What are your overall thoughtson this term?
Like I said, it felt reallychaotic.
SPEAKER_01 (04:44):
Yeah.
I mean, it was, and a lot ofthat was their own doing, the
conservatives and theirmajority, because they,
especially with the six votes,they really do have control of
both what cases they want totake and what how they want the
(05:07):
fallout to play, because there'ssort of like three main aspects
of any Supreme Court case.
It's deciding to hear it, whichthe court has virtually complete
control over its docket.
There's how they decide it, sortof the legal ruling, and that's
(05:28):
sort of what we generally thinkabout what the Supreme Court
does.
But then also importantly, it'slike how they act actually
functionally resolve the case,like what they say the next
steps are.
And I think on all three frontsthis term, we got good examples
(05:49):
of the bad chaos that you'retalking about.
SPEAKER_00 (05:53):
Okay, let's talk about one of the ones that, you
know, speaking of timing, like Iwasn't quite ready for Scrum
Eddie to come out.
Like I assumed it would be oneof the last ones.
So all of a sudden it likepopped up and I was like, oh, oh
my God, I have to deal with thistoday.
What was the Scrimetti case andwhat happened?
SPEAKER_01 (06:12):
Yeah, I mean, Scrimetti was the challenge to
Tennessee's ban ongender-affirming medical care
for transgender minors.
And although, ironically, thatbasic description, which has
been in thousands of newsarticles, is not actually what
the law is, according to JohnRoberts, who wrote the majority
(06:33):
opinion.
And what happened is that JohnRoberts told us that it is not a
law that classifies based onsex, even though the law
classifies based on sex on theface of the law.
And it's not a law thatclassifies based on transgender
status, even though if you asked100 people in Tennessee,
(06:57):
regardless of whether theysupported, opposed, or don't
know about how they feel aboutthe bill, all of them would say
it was a about transgender kids.
And despite that, John Robertstold us it was a law about age
classifications because it waslimited to under 18 and medical
(07:19):
use because it was abouttreatment for gender dysphoria.
Now, the fact that the onlypeople diagnosed with gender
dysphoria are trans people wassort of irrelevant to John
Roberts' consideration, which Ithink ultimately the sort of
long arc of history will be thereason why this decision will be
(07:41):
seen as just not a legaldecision.
We can get into it more, but thecase that he based it on was
this 1970s case about pregnancydiscrimination that everybody
agrees was a bad decision, but Iwould argue that applying it
(08:02):
here was...
not even bad faith.
It was just like, it was thesort of thing that if a law
student had proposed this in apaper like five years ago, a
teacher would have flunked them.
There's no coherence to theargument.
And so, but because he did that,there were no classifications on
(08:27):
the law as he and the majoritywere considering it, that the
court recognized as gettingheightened scrutiny.
And that's when the courts lookat laws that classify people.
Basically they say, You know,all laws classify like that.
That's what laws do.
(08:48):
And most of the times we don'treally care about that because
laws have to classify like who'scovered by a law and who
doesn't.
But when laws classify in a waythat we think is merits
additional scrutiny because itis traditionally not something
(09:10):
good when governments classifypeople that way.
We give extra scrutiny and theprimary one is race gets strict
scrutiny, which means that it'sgenerally going to be struck
down.
The legal test is you have toprove that there's a compelling
state interest in thatclassification and that it is as
(09:33):
narrowly tailored as it can beto catch that.
But then, specific to this case,there's sort of a middle group
called intermediate scrutiny,and that's what sex
classifications traditionallyhave gotten.
And in order to classify peoplebased on sex, what the courts
have said is that you have toshow that there's an important
(09:57):
interest and that theclassification, the law, is
substantially related to thatand so basically what that means
is that sometimes it'll beallowed but that generally we're
still going to look at thatsuspiciously and but because
John Roberts said there was noneof those classifications here we
(10:21):
just used rational basis whichis that lowest level the
basically it gets through leveland you just have to prove that
there's a legitimate reason andAnd as bad as the classification
decision from Roberts was, whathe actually did in the next
(10:43):
part, I think, was in some wayseven worse.
Because what he decided was, ifyou've been following this issue
of gender affirming care,like...
There has been this veryintentional effort from the
right to create a debate, topull out a few outlier cases,
(11:04):
get those people in front oflegislatures, get them talking
about it, create this debatearound detransitioners, which is
like handful of people, asopposed to the thousands of
children who are trans, whichstill in the scope of the world
is basically no children.
(11:25):
and what john roberts did issaid we don't even under a
rational basis we don't evenneed to get into that debate and
decide if they were right allthat we need to do is say that
tennessee lawmakers saw thatthere was a debate and wanted to
(11:50):
restrict because they knew therewas this debate.
And he literally said that thatwas enough.
And I think that that isstriking for how much it waters
down the little bit of teeththat Rational Basis had and It
also shows how utterlyunjustified his decision not to
(12:15):
find any classification herewas.
Because the very discussionsthat he was talking about, the
debate that he was using torationalize his rational basis
approval, was all based ontransgender people.
It was all based on transgenderstatus.
(12:36):
It was all based on sex-basedclassifications.
He almost had to just say thedebate was enough because if he
even started quoting thearguments if he even had to get
into the arguments it would havemade that first part of his
ruling look utterly insanebecause every lawmaker talking
(13:00):
about it every witness talkingabout it every advocate for or
against it was going to besaying what are you doing to
transgender kids or theselefties are trying to
indoctrinate and tell kidsthey're transgender.
Like there would literally havebeen no way to get into the
(13:23):
debate beyond saying debate isenough without acknowledging how
faulty the logic of the firstpart of his decision was.
But he did that.
And because of that, you had noclassification that got more
scrutiny.
And he watered down what thatrational basis could scrutiny
(13:43):
was to basically nothing.
And therefore, not only are thelaws allowed, not only does that
mean that virtually all of theother states would be allowed,
but you also sort of had thiseven the things we didn't decide
are getting skeptical look aboutthem, because since they decided
(14:12):
that the Tennessee law was not atransgender status
classification, they didn'tresolve one of the questions
that was before them, which waswhat level of scrutiny of those
three levels that I talked aboutdo laws and classifications
(14:32):
based on transgender status yet.
So they didn't even resolve thatquestion.
But obviously, with the way thatthey were talking about it, it
was hard to imagine that theywould give it heightened
scrutiny.
And also, Justice Barrett,joined by Justice Thomas, wrote
a concurring opinion saying thatif and when we do reach that
(14:56):
question, I think it's clearlygoing to be a rational basis.
And interestingly, JusticeAlito, so you had the three
Democratic appointees dissented,led by Justice Sotomayor in a
powerful dissent, basicallysaying a lot of what I've just
told you.
Justice Alito, I think, was insome ways the most interesting
(15:20):
opinion.
I really question what's goingon with him.
And, like, dare I say I'mdefending Justice Alito, and
this will be the first time inthe history of Chris Geidner
that I've said somethingpositive about Justice Alito.
But he kind of called out thesecond part of Robert's
(15:42):
bullshit.
He said...
I'm not quite sure how you saythis is into classification
based on transgender status.
Now, he said, ultimately, Idon't need to...
make that decision because I'mgoing to assume it is a
classification based ontransgender status.
(16:04):
And I'm going to say thattransgender status gets rational
basis review.
And I think the law would passunder rational basis review.
But I think it was reallyinteresting that Alito did not
give them that out.
So, like, technically thatdecision was 5-4.
(16:26):
which is really interestingbecause what that means is that
All five of those justices whodid join it, so all of the other
Republican appointees, are heldaccountable for that and should
be.
So that includes Barrett, whohas been trying to sort of play
(16:47):
this, I'm a thinker, I'm goingto look at these cases
objectively and reach anindependent conclusion in each
case.
Like, if you were willing to goalong with a rationale that even
Judge Sam Alito calls JusticeSam Alito called out, you really
need to think about what you'vedone.
(17:09):
Like, it's sort of like, I mean,I'm a pretty...
not just outspoken, but loudperson.
And one of the things that Iused to say in law school to
people in the library was like,I would go up to them and be
like, so you're being a littleloud and I don't really care.
(17:32):
But if I, Chris Geidner, thinkthat you're being loud in the
library, think what everybodyelse is thinking.
And it's sort of that logic.
Like if Justice Sam Alito issaying that your legal reasoning
is poor, go back to the drawingboard.
SPEAKER_00 (17:51):
The thought that the debate is enough is...
Like, that's terrifying.
And how big that could get.
SPEAKER_01 (17:58):
It's astounding to me.
Yeah, it's really bad.
SPEAKER_00 (18:03):
Yeah.
Well, and I also was justthinking what really struck me
on that day when the decisioncame down, it was also the day
we found out about the cut inservices for 988, getting rid of
the LGBTQ extra services.
And now just today, did I seethey're picking up trans people
in sports?
Like, this is not the end.
SPEAKER_01 (18:23):
Yeah.
So, I mean, now Now, the good,bad, and evil of that is that
that is now going to be thatequal protection question.
It's going to be next toimpossible to avoid the question
there.
And I haven't had time to lookover what they actually granted
(18:47):
in because it's coming soclosely after.
I'm still working on closing outthis term.
And like the reality is thatwe're going to now have full
briefing, unlike the shadowdocket questions.
Like, I mean, this is like infor all the bad that this will
be.
Like when we talk about like whyshadow docket decisions are so
(19:11):
dangerous, these emergencyapplications that the Trump
administration keeps taking upquickly.
This shows like a good exampleof why those are so bad.
And like, so what this means nowis, is that we now know that
they're going to be hearingthat, like, even if you assume
(19:31):
the worst case scenario, which Ikind of think you need to in
light of the not even subtlesignals that we've gotten from
the court, some of the otherones of which I've written about
and we can talk about, the factthat they've now granted it,
it's July 3rd, we...
have all summer to be addressingit.
The parties are going to bebriefing the merits of these
(19:55):
cases out of Idaho and WestVirginia.
The Amici, which is friend ofthe court briefs, all of the
organizations and individualswho have history, like you think
about the issues that JusticeBarrett asked about and wrote
about, whether there's a historyof discrimination against trans
(20:16):
people.
I think we're going to begetting some some really uh
fulsome historians briefs thatare going to to explain i mean
i'm sure the merits briefs willas well but i expect we're going
to get some some prettyextensive historians briefs in
this case uh explaining tojustice barrett how her lack of
(20:41):
education on this issue needs tobe corrected and we've got that
time and then there will be oralarguments like this was just
granted now.
They've already granted somecases, so it probably won't be
till November or December.
The Scrametti case was grantedaround now last year, and it was
heard the first week ofDecember, which is the third
(21:04):
sitting of the term because thejustices start in October.
So it'll probably be lateNovember or December.
And then we'll have months afterwe know how the arguments went
to deal with that prepare, lookat what needs to be done to
protect people.
And so the decision willprobably be in June of next
(21:27):
year.
And I do think that As importantat times as getting quick
resolution, like obviously thebirthright citizenship, because
they said it's going, a clearlyunconstitutional executive order
is going to go into effect inpart on July 26th.
(21:48):
Like that needs to be resolvedand get back to the court
quickly.
But in a situation like this,where a lawsuit has been ongoing
for five years now, four yearsnow, I think that it's really
good that we're now going tohave a year to talk about these
issues, to make the best case tothe court, to make the case to
(22:10):
the public, to prepare transpeople for what protections they
need for themselves, whatprotections state and local
governments in areas where theycan provide them in addition to
any federal equal protection, sothat that can all happen in a
(22:31):
more methodical way than, forexample, a January 20th
executive order from thepresident that purports to do
unconstitutional things at thestroke of a pen that then need
to go into immediate litigation.
SPEAKER_00 (22:49):
Okay, that's a lot on Scrimetti.
That was a big case, hugeimplications.
The other big one that is goingto have...
big implications for sexualreproductive health, but also
for so many other things is theMedina.
Medina.
Yeah.
SPEAKER_01 (23:05):
Before we do that, just since we're not going to go
a lot into it, I just want tolike some strands in between
Scrametti and today's grants.
Yeah.
It's important to know that inbetween there, we had a couple
of things that happened that Iwrote about it a lot of work and
you can look at and read, butYou had Mahmood versus Taylor,
(23:30):
which was this decision overLGBTQ plus inclusive textbooks
in Maryland, Montgomery Countyclassrooms, where Justice Alito
was not showing his moreenlightened self.
And they essentially, I mean,not essentially, they said that
there is a, that parents, ifthey have a religious objection
(23:55):
to anything in In thecurriculum, they basically have
a right to get notice of thatand a right to opt their
children out of it, which isabsolutely insane, absolutely
counter to the court'sprecedence in these areas.
(24:16):
This was a free exercise case,and the court, Justice Sotomayor
and her dissent here, reallylaid out how the quote chaos
that this was going to unleashfor school districts the only
sort of opt-outs that schoolshave had previously are
(24:39):
generally like self-containedlessons like essentially sex ed
class is the big one and her herpoint was like how do you do
that when it's like a book thatlike these books were not even
like a chapter you in a lessonplan they were books that would
(25:02):
be on the shelves available tobe picked out by students and if
the students chose these booksthere were like lesson plans for
the day that would go along withit like when you have like
read-along time where theteacher like reads a book and
the kids talk about it it'sutterly unhinged and but it was
(25:24):
sort of based in this freeexercise right.
Then on Monday, the court, whichin Scrimetti, the case was
labeled US versus Scrimetti, ifyou notice these things.
And that's because the case thatthey actually took up was the
(25:44):
case that the Biden JusticeDepartment asked the justices to
take up, not the two cases thatthe individual plaintiffs, the
trans kids and parents anddoctors had brought in Tennessee
and Kentucky.
And the reason for that was thatthe Justice Department just
(26:07):
asked those two equal protectionquestions about sex
classification and transgenderstatus.
The individual plaintiffs alsoasked a third question about
parental rights under the dueprocess.
There's a line of cases thathave to do with a parent's right
to Now, on Monday, literallythree days, the next business
(26:34):
day, as the Justice Departmentis regularly saying these days
in cases when they say thatthey're being overwhelmed by
court decisions, the nextbusiness day, less than 24 hours
after the court issued this bigparental rights ruling on
Mahmoud, they denied the certpotential.
(26:56):
of the individual plaintiffs inthe Kentucky and Tennessee
cases, which meant they weren'tgoing to take up that parental
rights question when it came totrans kids.
And the way that I wrote aboutit at LawDark was like the
message from the court waspretty clear.
It was, if you have LGBTQrelated concerns, anti-LGBTQ
(27:23):
concerns, the court is going tolisten to them and find a way to
protect them if you have actualconcerns for LGBTQ people, your
children, the court is justgoing to ignore that and not
even take up that case.
And so that happens.
And then on Thursday, the courtsays, but we are going to take
(27:46):
up this case where LGBTQ kids,where trans kids won below, and
the state is asking for anappeal.
And we're going to hear thesesports ban cases.
And then just Just to put acherry on top, there was a case
out of...
(28:06):
Montana, you would probablyknow, I forget, the abortion,
the parental consent case.
SPEAKER_00 (28:16):
Yeah, I think that's
SPEAKER_01 (28:17):
Montana.
The Montana Supreme Court, Ithink it was, had struck down a
parental consent there underabortion law, under Montana
Constitution.
And the state wanted to takethat up and ask the Supreme
Court to review it.
Or no, no, The challengers,whoever wanted to take it up and
(28:41):
said, wanted a parental rightscase there saying, no, no,
parental rights when it comes toabortion are really important
and you shouldn't be able tohave this exemption to allow
minors to get an abortionwithout their parental consent.
And the court did deny that.
So they let that Montana SupremeCourt ruling in effect.
(29:03):
But Alito and Thomas wrote astatement there basically
saying, this is a really poorvehicle because it had been
argued below only as a Montanaconstitutional case.
They hadn't been talking aboutthe federal constitution and
parental rights.
So we don't think this is a goodvehicle to resolve this
(29:25):
question.
And they specifically said,basically, you should not take
anything out of this about themerits of that claim that
there's an argument that is tobe made that there's a parental
right to be informed before yourchild can get an abortion, which
I think is really the cherry ontop because we didn't get a
(29:48):
statement like that from one ofthe Democratic appointees on
Monday when it came to the sameissue when it came to parents
caring about their trans kids.
SPEAKER_00 (30:01):
That was really great to hear that progression
because I think With all of thethings happening, I took notice
of all of them, but having thatline drawn was...
SPEAKER_01 (30:13):
Yeah, that was literally over six days.
That was over seven days.
I mean, from Friday to Thursday,that's what happened.
We had five different trans andor parental rights cases that
basically the way they came outwas...
(30:33):
wholly based on whether it wason the left side of the ledger
or the right side of the ledger.
And the one case that didn'tcome out that way, two of the
most conservative justices wroteto say, don't take it as a bad
sign for the right.
SPEAKER_00 (30:52):
Okay.
Medina.
So
SPEAKER_01 (30:54):
yeah, with that, Medina.
So...
Medina was this case that reallyshouldn't have been the case
that it became.
It was essentially just one ofthese ongoing efforts to defund
(31:15):
Planned Parenthood.
And what that involved doing wassort of a two-step thing.
It was saying that we're goingto the South Carolina was going
to not fund Planned Parenthood.
They essentially said it wasbecause of their abortion
(31:37):
provision and because eventhough the state funding
wouldn't go to abortions, moneyis fungible.
So they were indirectlysupporting the abortion services
that Planned Parenthood providedto patients who needed them.
And that's like part one.
(31:57):
Then the providers and patientssued because under the Medicaid
Act, there's a provision thatsays that it was known, I guess
we should say.
I mean, it technically still is,but where we're going
essentially means that it'sworthless.
(32:18):
There's a provision that wasreferred to as the any qualified
provider provision.
And what that provision said ispretty self-explanatory.
from the words that are used todescribe it.
It says that under Medicaid, youare allowed to choose, have any
qualified provider provide youwith the needed medical care
(32:40):
that you have.
And essentially, that was aprovision intended so that the
state couldn't just pick aprovider, so that they couldn't
pick and choose who they wantedto provide services to
essentially create like a winnowto either sort of corruption or
(33:02):
provide only bad services toMedicaid patients.
Those were sort of the twoconcerns animating it.
And sort of essentially whatSouth Carolina did was right in
that wheelhouse because that wasthe provider that they wanted.
And a lot of the reasons, if youlike actually dig into the case,
(33:26):
the reason why these people saidthese the client the plaintiffs
in the suit like said that theywanted this is that they
specifically wanted to go toPlanned Parenthood because that
was where they didn't feeljudged for their conditions that
was where they felt safestgetting medical care that was
where they felt they could askthe questions that they needed
(33:47):
to ask so like it truly wasright in the wheelhouse of why
this had been created then Thenext phase in this case comes
with, well, what do you do ifyou have this law?
It's not being followed in yourview and the state is trying to
(34:11):
cut funding.
So they sued under 1983, whichis a federal law that is used
for basically when you sue the astate or local official for
violating your rights.
And the traditional lawsuit thatyou hear about 1983 actions that
(34:34):
like, is what you're thinkingabout generally is like prison
inmates, when violence happensin prisons, when prison inmates
are abused, when there'swrongdoing in prisons.
But the truth is that this islike a key civil rights law that
this came out of the CivilRights Act of 1871, that this is
(34:58):
a law that evolves out of theReconstruction era and has a
very broad interpretive purposeof affecting anybody's rights.
And they were looking atsituations, and now, like, you
have to take it to one level ofgenerality to, like, think that
(35:21):
I'm talking about today's case,but But it's not that difficult.
They were looking at situationswhere state and local officials
had an ideological opposition tothe basic treatment that people
were wanting to get to implementtheir legal rights under federal
(35:46):
laws, but state and localofficials did not want to
respect that.
And the federal governmentcreated a law that said, no,
you're not allowed to do that,state and local officials.
We are going to create a rareinstance where we are going to
(36:08):
say that individuals can haulstate officials into federal
court.
That was obviously in theReconstruction era.
That was Southern governors whowere denying rights to newly
freed slaves.
That is Southern governors whodidn't want these freedmen to
(36:30):
become parts of society.
But like that level ofgenerality that I just took out
that one little fact, whichimportant to note, is not in the
law.
The law does not say it onlyapplies to black people.
The law does not even say itonly applies to race.
It applies to all people who arebeing, having their rights
(36:53):
violated.
And they brought this lawsuitand it went up and essentially
we go through the courts and theconservatives have tried to pull
back the right of people to sueunder 1983 for a while now.
(37:19):
And this took it even further.
And you got this opinion fromGorsuch, Justice Gorsuch.
It was, again, another 6-3decision.
And he essentially said, insteadof looking, I mean, you look at
these conservatives whoeverything else is about history
(37:40):
and tradition, but But when itcame to this case, Justice
Gorsuch literally turned to a2023 decision and the court's
analysis of a nursing statuteand said, well, look, the
nursing statute actually saysthe word right several times in
(38:05):
the statute.
And that's why we said that thatis the type of statute that
creates a right.
And we have said that you canonly bring a lawsuit under 1983
for a statute as opposed to aconstitutional violation when
(38:27):
there is clear rights-creatinglanguage in the statute.
Now, Contra that, at oralargument, Justice Kagan was
talking with the lawyer for thestate who was trying to defend
this argument.
And she, like, I mean, JusticeKagan doesn't get flustered.
(38:49):
So, like, it was kind of someacting.
Like, she knew what she wasdoing.
She knew what she was saying.
But, like, at one point, she'stalking to the lawyer and she
goes...
You can't even describe thiswithout calling it a right.
Like, what?
It's an awareness of the abilityto obtain a provider of your
(39:10):
choice?
Like, it's a right.
Like, that's what it is.
But Gorsuch said no, since thestatute itself didn't use that
language, that specific word,which like at arguments, they
were saying, oh, no, we don'twant a magic words test.
But that's essentially what hedid, that the language is that
(39:34):
this nursing statute provided,quote, the only reliable
yardstick against which tomeasure whether spending power
legislation confers a privatelyenforceable right.
And so, essentially, they cut awhole chunk out of 1983
(39:55):
litigation, which basically Thisis like a win-win for
conservatives because theyalways want to cut down 1983
legislation and this let them doso in a case where they were
giving a win to the defundPlanned Parenthood movement.
SPEAKER_00 (40:12):
Yeah, and I think that's a really important point
that it is bigger than justPlanned Parenthood because I
think a lot of the coverage hasreally focused on the Planned
Parenthood part.
And one, it could also be otherproviders that could be
targeted.
It is going to end Well, and
SPEAKER_01 (40:30):
not just providers.
This essentially said thatwhenever you use the spending
clause, which is the broad way,that's essentially how...
I mean, because remember, 1983is only about state and local
actors.
It's not about suing the federalgovernment.
And so...
The spending clause is one ofthe only ways, because we have
(40:53):
this great system of dualsovereignty where states retain
their own rights.
Basically, the spending clauseis one of the only ways that the
federal government can make thestates do things unless you pass
a new amendment, because thefederal government gives out so
much money to states that theycan attach conditions to it.
(41:14):
And so the question here is whenthe spending clause is the mode
that Congress has used to createa state obligation, when can
that statute create the abilityfor an individual to sue under
(41:37):
1983 if they aren't if the statesays, no, we're not doing that.
And the limit to that is thisFINRA, this, I don't even,
that's not, FINRA is a separatething, the Federal Nursing
Healthcare Act, that basicallyyou literally have to have the
(42:00):
word right, right, right,patient, client, whatever the
individual language is,throughout the statute in order
to do that.
Otherwise, what Gorsuchliterally said.
Otherwise, the only way ofaddressing state noncompliance
is the federal governmentpulling funds.
(42:21):
And so if you don't have anexecutive that is interested,
and this would apply to bothsides, if you don't have a, but
of course, it willdisproportionately affect
Democratic left side litigationbecause they're more interested
in rights-based litigation, butthat essentially, if you don't
(42:47):
have the White House in yourcamp, there is no way of dealing
with states that don't want toenforce this spending clause.
SPEAKER_00 (42:58):
Okay.
Again,
SPEAKER_01 (42:59):
And in addition to that, sort of part two of that
was, that's even further removedfrom this case is there's always
one of the most common things tohappen in the U.S.
Supreme Court today is JusticeClarence Thomas writing.
Justice Clarence Thomas, for thefirst 20 years of his time on
(43:21):
the court, wrote solo dissents.
We all knew Clarence Thomaswould regularly write solo
dissents, talking aboutsomething crazy about how he
thought the law should beinterpreted.
Unfortunately, now thereconcurrences.
When they're not the majorityopinion, they're concurrences
because they are, he agrees withthe ruling because it's the
(43:44):
conservatives winning, but he'llwrite a concurring opinion
explaining how the court couldgo even further and how he
wishes it would.
And this time, it was to saythat he thinks the court is
looking at 1983 litigation writlarge wrong.
(44:04):
And remember when we talkedabout the fact that, like, this
was a civil rights era,legislation, reconstruction, he
essentially was like, we need togo back to that and re-look at
this and consider how narrowlythis should be interpreted.
That led to an even sharper partof her dissent from Justice
(44:28):
Jackson, who was like, Whoa,buddy.
And I thought that this was areally interesting reality that
is a really strong, powerful,good thing about having Jackson
on the bench.
For a long time, literally,since he took over, because he
took over Justice Marshall'sseat, since Justice Thomas took
(44:53):
the bench, he very much has feltfree to declare how civil rights
statutes and the reconciliationamendments should be looked at.
And bluntly, a lot of whitejustices were like, we'll let
him do that.
He didn't have the majority.
He was often writing forhimself.
But like, nobody was like, no,you're wrong, Justice Thomas.
(45:17):
Until Justice Sotomayor came on,she started saying some of it.
There were occasional thingswhere Breyer or Ginsburg would
be like, what's he doing here?
But now, Justice Jackson is verycomfortable, very quickly
saying, what are you talkingabout?
(45:37):
And she wrote a very harshdissent that was good.
She said, because his opinion isnot tethered to the specific
facts or arguments presented inthis case, an extensive response
is not necessary here.
But it is worth pausing brieflyto think about whether the
(46:00):
historical account he wroteoffers reflects the level of
depth, nuance, or context neededto support the wholesale
reappraisal he is envisioning.
I mean, she basically said, whatare you, she later said, more
caution, parentheses, and moreresearch, end parentheses, may
(46:23):
be warranted before ourlongstanding precedents in this
area can be seriouslyscrutinized or attacked.
That's some good stuff.
And in between there, she did.
She didn't go on at length, butshe put like a page or two of,
she went back and looked at likewhat actually was going on then.
(46:47):
What were people talking aboutthen?
What was the broader contextintended there?
I think, and this is somethingthat I've talked about
elsewhere, I think that JusticeJackson is getting very
comfortable and ironicallyperhaps from growing up in an
era of watching Justice Thomas'solo dissents where she is very
(47:15):
comfortable giving a solodissent.
If Sotomayor wants to join,she's happy.
If Kagan wants to join as well,come on board.
But she is very comfortableissuing a solo dissent to say no
you're wrong.
Your history is wrong.
(47:35):
Your alleged reliance on historyand tradition is wrong.
And I'm going to call it outwhen you do so.
And she'll go outside of historyand tradition and she'll say,
no, why are we even looking athistory here?
Let's look at what's actuallyhappening.
Let's look at the reason whythey passed these amendments.
(47:58):
Let's look at the reason why theforward look purpose of these
statutes.
She's also given some incredibledissents in labor law, which I
think is really interesting, andI've been watching closely.
And I just, I think that it'svery good that we have someone
(48:20):
who knows that she's going to beon the bench for Most likely for
much longer than the two otherDemocratic appointees with her.
And she is very comfortable sortof laying out her own position.
But it's not that she sees it asas like, Yeah, absolutely.
(49:13):
of the court today, but Congressshould act or like the Ledbetter
decision.
I'm thinking of the VotingRights Act dissent in Shelby
County that essentially sayinglike, look outside, look at
what's happening, act public,act Congress.
(49:34):
Jackson doesn't need to do thatbecause she is, she's laying
forth a public vision that is,is the, the way that we that she
believes we should be looking atat The Constitution, the law,
our democracy, our republic, Ithink it is that big.
(49:55):
You look at her solo dissent inthe nationwide injunctions case
on Friday is a perfect exampleof that.
SPEAKER_00 (50:03):
Okay, Chris, I want to be respectful of your time.
So don't want to keep going toolong.
But maybe we want to do a realquick hit on Braidwood since it
was prep was at the center ofthat.
SPEAKER_01 (50:14):
Yeah, Braidwood was the case that started as a
right-wing vehicle case.
It was brought by JonathanMitchell, the former SG of
Texas, Solicitor General ofTexas, who had been behind SB8,
Texas' vigilante enforcementabortion ban.
(50:35):
He brought this case on behalfof these far-right religious
employers who didn't want tocover prep or contraceptive care
as they need to do according tothe Affordable Care Act, the
preventive care requirements inthe Affordable Care Act.
(50:57):
And they, of course, filed thisin the Northern District of
Texas, got their Reed O'Connor,one of the two single division
judges who are far, far, farright.
Reed O'Connor, sort of, they gotone of these...
you got too much of a goodthing.
Reed O'Connor sort ofincidentally blew up the case by
(51:21):
not just banning PrEP andcontraceptive care, but striking
down the entire preventive caretask force panel that was behind
the recommendations that led tothe PrEP and contraceptive
coverage being included.
He also would have struck downtwo other boards and Then when
(51:44):
it went up to the Fifth Circuit,the Fifth Circuit said, well,
he's wrong on these two otherboards, but he's right on the
Preventive Care Task Force.
And the irony of the PreventiveCare Task Force is it was a
Reagan-era creation thatbasically is what it sounds
like.
It was a bunch of experts whorecommend what they think we
(52:06):
need for preventive care.
When the ACA was passed in 2010,they were like, oh, we don't
need a new task force for this.
There's one that exists.
So we'll use theirrecommendations to create this
ban on cost sharing thatessentially said any
recommendations from this taskforce, you can't have a copay or
(52:29):
other cost sharing under yourinsurance plans.
It gets up to the Supreme Court.
It's blown up because it is thiswhole task force.
It's cancer screenings.
It's mental health carescreenings for kids.
It's like hundreds ofrecommendations since 2010 that
would have been impacted.
(52:50):
The Biden administration wasopposed to it.
There were these other,everybody outside was opposed to
it.
Then the Trump administrationtakes over.
And this is a case where theydidn't change sides, even though
it was a far right caseinitially.
They didn't switch sides.
They didn't say we disagree withthe Biden administration.
(53:12):
They might have argued it alittle differently but we get to
the ruling and essentially thethe ruling was this task force
is just like any other taskforce the justices at argument
made it clear where this wascoming out they were like what
are you talking about do youreally think that like buried in
(53:33):
the ACA was the creation of anindependent agency that has no
other power than this one lineitem of recommendations that the
HHS secretary ultimately canreject.
It was all hinged on thislanguage in the appointment of
(53:57):
these people that they'resupposed to be like, I forget
the exact language, but it wasessentially like, removed from
politics as possible.
That was all that it's like, Ido, the quote is as possible.
And Like...
you had like Jonathan Mitchellup there arguing essentially
(54:18):
that like that meant that theywere this insulated agency that
was couldn't be removed andneeds to be it's this it gets
into this whole complicated areaof law about the appointments
clause which would mean that ifJonathan Mitchell was right the
(54:39):
members of this preventativecare task force would need to be
appointed by the president andconfirmed by the Senate as
opposed to being like apart-time twice a year meeting
that are like appointed itwasn't even generally appointed
by the HHS secretary it was bylike one of the subdivisions of
(55:00):
HHS and where we get in theruling is ultimately an
agreement that these areinferior officers which like duh
and their authority is is vestedon under the HHS secretary,
which is the way that anythingunder any agency ultimately is
(55:21):
determined.
Now, that's the win.
The complication is best seenwhen you look at one of the
other two panels that providesthe recommendations that are
covered under the PreventiveCare Task Force that you might
have read some stuff about.
It's ACIP, and that's the onewhere RFK Jr.
(55:43):
kicked off all of the boardmembers and then replaced like
half of them with vaccineskeptics.
Essentially, after Braidwood,RFK Jr.
is free to fire the entirePreventive Care Task Force and
replace them with whoever hewants.
So we could see some,essentially, Jonathan Mitchells
(56:06):
being appointed to thePreventive Care Task Force who
then do try to cut PrEPcoverage.
And who knows what else thatthings that RFK Jr.
has decided aren't actuallythings, even though science says
they are, and cut them.
(56:28):
And that will lead to thenlawsuits over the authorization
for those appointments, the APAlawsuits, Administrative
Procedure Act lawsuits overwhether the decisions to remove
certain care were reasoned tobe.
or whether their removal wasarbitrary and capricious.
So there's a whole new line ofcases that could come.
(56:51):
But with so much of the Trumpadministration and this moment,
the thing that I like to talkabout and that I'm going to be
writing about this Sunday atLawdork is that a big win is
possible.
slowing down, stopping anyindividual movement and forcing
(57:15):
them back to the drawing board.
There was a district courtruling on Wednesday night,
Thursday morning from Judge JohnBates, a George W.
Bush appointee in DC, who saidusing that APA under the
Administrative Procedure Actsaid that if you remember back
(57:38):
at the end of January, whenthere was that like mass order
to delete any website that was apublic-facing website that had
the word transgender on it.
He issued a ruling overnight,Wednesday to Thursday, that said
that wasn't the OPM memodemanding those website removals
(58:01):
and the HHS memo that apparentlywas issued on January 31st and
said they had to implement itthat day were arbitrary and
capricious and he vacated thosememos and sent them back to OPM
and HHS to try again.
And What that means, it'sanother just like Braidwood that
(58:24):
like sent back to the drawingboard.
And all of those websites thatwere removed because of the OPM
or HHS memo within HHS have tobe put back up for now.
And that's at least a temporarywin.
I mean, one, it's a proceduralwin.
It is a legal win.
(58:45):
But more importantly, it putsthe info back up and online.
So that people can, if there wasinfo that wasn't downloaded
before it was taken on the 31st,they can download it.
Outside organizations candownload it.
And in this case, this wasbrought by Doctors for America.
(59:06):
We can literally live to fightanother day.
SPEAKER_00 (59:08):
Yeah, that was great news when I saw that last night.
And I totally agree with thedelay and trying to just gum up
the works as much as possible isthe way forward.
Well, Chris, thank you so muchfor being here.
As always, it was an absolutepleasure to talk to you.
And just thank you.
SPEAKER_01 (59:26):
Thank you.
SPEAKER_00 (59:28):
Okay, y'all, I hope you enjoyed my interview with
Chris.
I mean, it feels kind of weirdto say enjoyed when we were
mostly talking about terrible,terrible things, but it's always
wonderful to get to talk to himabout all the things that are
going on at the Supreme Court.
I always enjoy having aconversation with him, so I'm so
grateful that he was able tocome on and talk to me about
what happened this term.
(59:49):
So with that, I hopeeverybody...
Had a wonderful long holidayweekend.
Since you're hearing this afterthe weekend, I hope I had a
wonderful long holiday weekend.
And I will see everybody nextweek.
If you have any questions,comments or topics you would
like us to cover, always feelfree to shoot me an email.
You can reach me at Jenny,J-E-N-N-I-E at
(01:00:09):
reprosfightback.com or you canfind us on social media.
We're at Repros Fight Back onFacebook and Twitter or Repros
FB on Instagram.
If you love our podcast and wantto make sure more people find
it, take the time to rate andreview us on your favorite
podcast platform.
Or if you want to make sure tosupport the podcast, you can
also donate on our website atreprosfightback.com Thanks all!
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