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.
For more information, check out Well...Adjusting: https://podcasts.apple.com/us/podcast/well-adjusting/id1649386566
Follow Us on Social:
Twitter: @rePROsFightBack
Instagram: @reprosfb
Facebook: rePROs Fight Back
Bluesky: @reprosfightback.bsky.social
Buy rePROs Merch: Bonfire store
Email us: jennie@reprosfightback.com
Rate and Review on Apple Podcast
Thanks for listening & keep fighting back!
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jennie (00:03):
Welcome to rePROs Fight Back, a podcast on all things
related to sexual andreproductive health rights and
justice.
Hi, rePROs.
How's everybody doing?
I'm your host, Jennie Wetter,and my 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 andlooking forward 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 wasborn and 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
(01:33):
was struck down.
It hasn't been in effect since2023, where abortion providers
were able tostart resuming providing servicesafter a judge issued a ruling. But now the state supreme court has completely struck it down which is amazing. I am so happy for my friends and family in Wisconsin who now have access to abortion and don’t have to worry about this zombie law coming back. So, that is super exciting.
What a great way to kick off mylong weekend.
(02:05):
I'm trying not to think aboutall the other things that are
happening.
The reconciliation bill isstill moving 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
Planned Parenthood, but theSenate passed their version of
(02:27):
the bill, and it is stillcontinuing to move forward.
The House has to take actionnow.
Again, recording on July 2nd,so things 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
deal with it.
But yeah, still moving forward.
But I am focusing on the bigwin out of Wisconsin.
(02:50):
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
the kitties when all of thefireworks are scaring them.
So I'm really looking forwardto a very, very chill weekend.
(03:11):
So those are the vibes I'mcarrying right now.
I'm really just leaning intothe happy bits and not worrying
about the stressful stuff that Ican think about when I start
working again next week.
Yeah.
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.
(03:34):
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 Geidner with Law Dork on.
We are going to be talkingabout some of the important
cases related to sexualreproductive health and rights
from this past Supreme Courtterm.
I've been promising y'all thatwe have a wrap-up episode
(03:54):
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 interviewwith Chris.
Hi, Chris.
Thank you so much for beinghere today.
Chris (04:10):
Hello.
Jennie (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?
Chris (04:22):
Yes, I am Chris Geidner, I run Law Dork, and my pronouns
are he/ him.
Jennie (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 and reproductive health
and rights, but it feels like weshould maybe just...
what are your overall thoughtson this term?
Like I said, it felt reallychaotic.
Chris (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 itsdocket.
There's how they decide it,sort of the legal ruling, and
(05:28):
that's sort of what we generallythink about 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.
Jennie (05:53):
Okay, let's talk about one of the ones that, you know,
speaking of timing, like Iwasn't quite ready for Skrmetti
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 withthis today.
What was the Skrmetti case andwhat happened?
Chris (06:12):
Yeah, I mean, Skrmetti was the challenge to Tennessee's
ban on gender-affirming medicalcare 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, butthe case 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 didthat, there were no
(08:25):
classifications on the law as heand the majority were
considering it, that the courtrecognized as getting heightened
scrutiny.
And that's when the courts lookat laws that classify people.
Basically they say, you know,all laws classify like that.
(08:47):
That's what laws do.
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 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 thiscase, there's sort of a middle
group called intermediatescrutiny, 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 that.
And so basically what thatmeans is that sometimes it'll be
allowed but that generallywe're still going to look at
that suspiciously but becauseJohn Roberts said there was none
(10:18):
of those classifications here,we just used rational basis
which is that lowest level thebasically it gets through level
and you just have to prove thatthere's a legitimate reason.
And as bad as theclassification decision from
(10:39):
Roberts was, what he actuallydid in the next part, I think,
was in some ways even 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 knewthere was 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 have been noway to get into the debate
(13:24):
beyond saying debate is enoughwithout acknowledging how faulty
the logic of the first part ofhis 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
was to basically nothing.
(13:45):
And therefore, not only are thelaws allowed, not only does
that mean that virtually all ofthe other states would be
allowed, but you also sort ofhad this even the things we
didn't decide are gettingskeptical look about them,
(14:09):
because since they decided thatthe Tennessee law was not a
transgender statusclassification, they didn't
resolve one of the questionsthat was before them, which was
what level of scrutiny of thosethree levels that I talked about
do laws and classificationsbased on transgender status yet.
(14:34):
So they didn't even resolvethat question.
But obviously, with the waythat they were talking about it,
it was hard to imagine thatthey would 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 Roberts'
(15:42):
bullshit.
He said...
I'm not quite sure how you saythis isn't a classification
based on transgender status.
Now, he said, ultimately, Idon't need to make that decision
because I'm going to assume itis a classification based on
(16:03):
transgender status.
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, which is
(16:27):
really interesting because whatthat means is that all five of
those justices who did join it,so all of the other Republican
appointees, are held accountablefor that and should be.
So that includes Barrett, whohas been trying to sort of play
this, I'm a thinker, I'm goingto look at these cases
(16:50):
objectively and reach anindependent conclusion in each
case.
Like, if you were willing to goalong with a rationale that
even Judge Sam Alito callsout, Justice Sam Alito called
out, you really need to thinkabout what you've done.
Like, it's sort of like, Imean, I'm a pretty...
(17:13):
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.
But if I, Chris Geidner, thinkthat you're being loud in the
(17:36):
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.
Jennie (17:51):
The thought that the debate is enough...
like, that's terrifying.
And how big that could get.
Chris (17:58):
It's astounding to me.
Yeah, it's really bad.
Jennie (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.
Chris (18:23):
Yeah.
So, I mean, now, the good, bad,and evil of that is that that
is now going to be that EqualProtection 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 closingout this 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 likewhy shadow docket decisions are
(19:10):
so 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 meansnow is, 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 beaddressing it.
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
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 explaining to JusticeBarrett how her lack of
(20:41):
education on this issue needs tobe corrected.
And we've got that time andthen there will be oral
arguments like this was justgranted now.
They've already granted somecases, so it probably won't be
till November or December.
The Skrmetti 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 monthsafter we know how the arguments
went to deal with that prepare,look at 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 asimportant at times as getting
quick resolution, like obviouslythe birthright citizenship,
because they said it's going, aclearly unconstitutional
executive order is going to gointo effect in part on July
26th.
Like, that needs to be resolvedand get back to the court
(21:50):
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.
Jennie (22:49):
Okay, that's a lot on Skrmetti.
That was a big case, hugeimplications.
The other big one that is goingto have big implications for
sexual and reproductive health,but also for so many other
things is the Medina.
Chris (23:05):
Medina. Yeah. Before we do that, just since we're not
going to go a lot into it, Ijust want to like some strands
in between Skrmetti and today'sgrants.
Jennie (23:17):
Yeah.
Chris (23:17):
It's important to know that in between there, we had a
couple of things that happenedthat I wrote about it a lot of
work and you can look at andread, but you had Mahmoud v.
Taylor, which was this decisionover LGBTQ+ inclusive textbooks
in Maryland, Montgomery Countyclassrooms, where Justice Alito
(23:42):
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
to anything in the curriculum,they basically have a right to
(24:03):
get notice of that and a rightto opt their children out of it,
which is absolutely insane,absolutely counter to the
court's precedence in theseareas.
This was a free exercise case,and the court, Justice Sotomayor
(24:25):
and her dissent here, reallylaid out how the quote "chaos"
that this was going to unleashfor school districts.
The only sort of opt-outs thatschools have had previously are
generally like self-containedlessons like essentially sex ed
class is the big one and her herpoint was like: how do you do
(24:49):
that when it's like a book?
That like these books were noteven like a chapter in a lesson
plan, they were books thatwould be on the shelves
available to be picked out bystudents.
And if the students chose thesebooks there were like lesson
(25:11):
plans for the day that would goalong with it like when you have
like read-along time where theteacher like reads a book and
the kids talk about it.
It's utterly unhinged and butit was sort of based in this
Free Exercise right.
Then on Monday, the court,which in Skrmetti, the case was
(25:35):
labeled US v.
Skrmetti, if you notice thesethings.
And that's because the casethat they actually took up was
the case that the Biden JusticeDepartment asked the justices to
take up, not the two cases thatthe individual plaintiffs, the
(25:56):
trans kids and parents anddoctors had brought in Tennessee
and Kentucky.
And the reason for that wasthat the Justice Department just
asked those two equalprotection questions about sex
classification and transgenderstatus.
The individual plaintiffs alsoasked a third question about
(26:19):
parental rights under the dueprocess.
There's a line of cases thathave to do with a parent's right
to control the upbringing of their child.
Now, on Monday, literally threedays, the next business day, as
the Justice Department isregularly saying these days in
(26:39):
cases when they say that they'rebeing overwhelmed by court
decisions, the next businessday, less than 24 hours after
the court issued this bigparental rights ruling on
Mahmoud, they denied the certpotential.
of the individual plaintiffs inthe Kentucky and Tennessee
(27:00):
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 Law Dork 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...
Montana, you would probablyknow, I forget, the abortion,
(28:13):
the parental consent
Jennie (28:16):
Yeah, I think that's Montana.
Chris (28:17):
The Montana Supreme Court, I think it was-
Yes.
-had struck down a parental consent there under
abortion law, under MontanaConstitution.
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 MontanaSupreme Court 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 agood vehicle 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 thecherry on top because we didn't
(29:47):
get a statement like that fromone of the Democratic appointees
on Monday when it came to thesame issue, when it came to
parents caring abouttheir trans kids.
Jennie (30:01):
That was really great to hear that progression because I
think with all of the thingshappening, I took notice of all
of them, but having that linedrawn was...
Chris (30:13):
Yeah, that was literally over six days.
That was over seven days.
I mean, from Friday toThursday, that's what happened.
We had five different trans andor parental rights cases that
basically the way they came outwas...
wholly based on whether it wason the left side of the ledger
(30:40):
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.
Jennie (30:52):
Okay.
Medina.
Chris (30:54):
So, yeah, with that, Medina.
So...
Medina was this case thatreally shouldn'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 doingwas sort 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 Parenthoodprovided to patients who needed
them.
And that's like part one.
Then the providers and patientssued because under the Medicaid
(32:05):
Act, there's a provision thatsays that it was known, I guess
we should say.
I mean, it technically stillis, but where we're going
essentially means that it'sworthless.
There's a provision that wasreferred to as the any qualified
provider provision.
And what that provision said ispretty self-explanatory from
(32:28):
the words that are used todescribe it.
It says that under Medicaid,you are allowed to choose, have
any qualified provider provideyou with the needed medical care
that you have.
And essentially, that was aprovision intended so that the
state couldn't just pick aprovider, so that they couldn't
(32:51):
pick and choose who they wantedto provide services to
essentially create like a winnowto either sort of corruption or
provide only bad services toMedicaid patients.
Those were sort of the twoconcerns animating it.
And sort of essentially whatSouth Carolina did was right in
(33:17):
that wheelhouse because that wasthe provider that they wanted.
And a lot of the reasons, ifyou like actually dig into the
case, the reason why thesepeople said these the client,
the plaintiffs in the suit,like, said that they wanted this
is that they specificallywanted to go to Planned
Parenthood because that waswhere they didn't feel judged
(33:39):
for their conditions, that waswhere they felt safest getting
medical care, that was wherethey felt they could ask the
questions that they needed toask.
So, like, it truly was right inthe wheelhouse of: why this had
been created then?
The next phase in this casecomes with, well, what do you do
(34:00):
if you have this law?
It's not being followed in yourview and the state is trying to
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
(34:26):
violating your rights.
And the traditional lawsuitthat you hear about 1983 actions
that like, is what you'rethinking about generally is like
prison inmates, when violencehappens in prisons, when prison
inmates are abused, when there'swrongdoing in prisons.
(34:46):
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
a law that evolves out of theReconstruction era and has a
very broad interpretive purposeof affecting anybody's rights.
(35:10):
And they were looking atsituations, and now, like, you
have to take it to one level ofgenerality to, like, think that
I'm talking about today's case,but it's not that difficult.
They were looking at situationswhere state and local officials
had an ideological oppositionto the basic treatment that
(35:37):
people were wanting to get toimplement their legal rights
under federal laws, but stateand local officials 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.
(36:01):
We are going to create a rareinstance where we are going to
say that individuals can haulstate officials into federal
court.
That was obviously in theReconstruction era.
That was Southern governors whowere denying rights to newly
(36:24):
freed slaves.
That is Southern governors whodidn't want these freedmen to
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.
(36:45):
The law does not even say itonly applies to race.
It applies to all people whoare being, having their rights
violated.
And they brought this lawsuitand it went up and essentially
we go through the courts and theconservatives have tried to
(37:08):
pull back the right of people tosue under 1983 for a while now.
And this took it even further.
And you got this opinion fromGorsuch, Justice Gorsuch.
It was, again, another 6-3decision.
(37:28):
And he essentially said,instead of looking, I mean, you
look at these conservatives whoeverything else is about history
and tradition, but when it cameto this case, Justice Gorsuch
literally turned to a 2023decision and the court's
(37:53):
analysis of a nursing statuteand said, well, look, the
nursing statute actually saysthe word "right" several times
in the statute.
And that's why we said thatthat is the type of statute that
creates a right.
(38:13):
And we have said that you canonly bring a lawsuit under 1983
for a statute as opposed to aconstitutional violation when
there is clear rights-creatinglanguage in the statute.
Now, contra that, at oralargument, Justice Kagan was
(38:40):
talking with the lawyer for thestate who was trying to defend
this argument.
And she, like, I mean, JusticeKagan doesn't get flustered.
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.
(39:03):
Like, what?
It's an awareness of theability to obtain a provider of
your 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
(39:25):
were saying, oh, no, we don'twant a magic words test.
But that's essentially what hedid, that the language is that
this nursing statute provided,quote, the only reliable
yardstick against which tomeasure whether spending power
legislation confers a privatelyenforceable right.
(39:48):
And so, essentially, they cut awhole chunk out of 1983
litigation, which- this is likea win-win for conservatives
because they always want to cutdown 1983 legislation and this
let them do so in a case wherethey were giving a win to the
(40:10):
defund Planned Parenthoodmovement.
Jennie (40:12):
Yeah, and I think that's a really important point that
it is bigger than just PlannedParenthood because I think a lot
of the coverage has reallyfocused on the Planned
Parenthood part.
And one, it could also be otherproviders that could be
targeted.
It is going to endup being so much bigger, right?
Chris (40:30):
Well, and 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 thefederal government.
And so, the spending clause isone of the only ways, because we
(40:53):
have 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, becausethe federal government gives out
so much money to states thatthey can attach conditions to
(41:14):
it.
And so the question here iswhen the spending clause is the
mode that Congress has used tocreate a state obligation, when
can that statute create theability for an individual to sue
(41:37):
under 1983 if they aren't- ifthe state says, 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.
(42:20):
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
(42:41):
in rights-based litigation, butthat essentially, if you don't
have the White House in yourcamp, there is no way of dealing
with states that don't want toenforce this spending clause.
Jennie (42:58):
Okay.
Again...
Chris (42:59):
And in addition to that, sort of part two of that was,
that's even further removed fromthis 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 the first20 years of his time on the
(43:21):
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 they'reconcurrences.
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 eralegislation, 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 sharperpart of 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 thereconciliation amendments 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.
(45:16):
Until Justice Sotomayor cameon, 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 isvery comfortable, very quickly
saying, what are you talkingabout?
And she wrote a very harshdissent that was good.
(45:45):
She said, because his opinionis not 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
historical account he wroteoffers reflects the level of
depth, nuance, or context neededto support the wholesale
(46:09):
reappraisal he is envisioning.
I mean, she basically said,what are you, she later said,
more caution, parentheses, andmore research, end parentheses,
may be warranted before ourlongstanding precedents in this
area can be seriouslyscrutinized or attacked.
(46:31):
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
[where] she went back and lookedat like what actually was going
on then (46:46):
what were people talking about then?
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
(47:06):
era of watching Justice Thomas'solo dissents where she is very
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
(47:30):
you're wrong.
Your history is wrong.
Your alleged reliance onhistory and tradition is wrong.
And I'm going to call it outwhen you do so.
And she'll go outside ofhistory and tradition and she'll
say, no, why are we evenlooking at history here?
(47:52):
Let's look at what's actuallyhappening.
Let's look at the reason whythey passed these amendments.
Let's look at the reason whythe forward look purpose of
these statutes.
She's also given someincredible dissents in labor
law, which I think is reallyinteresting, and I've been
watching closely.
(48:13):
And I just, I think that it'svery good that we have someone
who knows that she's going to beon the bench for most likely
for much longer than the twoother Democratic appointees with
her.
And she is very comfortablesort of laying out her own
(48:35):
position.
But it's not that she sees itas as like,
I'm writing for myself because nobody else understands me, which is what sort of what some of Thomas' dissents were. She is writing from the start as a (48:43):
everybody else should be thinking about this. And I think it is only one step removed from when we would get those Ginsburg dissents saying, or sometimes concurrences or judgements saying
(49:15):
Congress should act or like theLedbetter 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.
Jackson doesn't need to do thatbecause she is, she's laying
(49:38):
forth a public vision that is,is the, the way that we that she
believes we should be lookingat at The Constitution, the law,
our democracy, our republic, Ithink it is that big.
You look at her solo dissent inthe nationwide injunctions case
(50:00):
on Friday is a perfect exampleof that.
Jennie (50:03):
Okay, Chris, I want to be respectful of your time.
So, don't want to keep goingtoo long.
But maybe we want to do a realquick hit on Braidwood since it
was PrEP was at the center ofthat.
Chris (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.
(50:56):
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, theygot one 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 thatled to the PrEP and
contraceptive coverage beingincluded.
He also would have struck downtwo other boards.
(51:42):
And then when it went up to theFifth Circuit, the Fifth
Circuit said, well, he's wrongon these two other boards, but
he's right on the PreventiveCare 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 in2010, they were like, oh, we
don't need a new task force forthis.
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 SupremeCourt.
It's blown up because it isthis whole 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 disagreewith the 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 isvested on under the HHS
secretary, which is the way thatanything under any agency
ultimately is determined.
(55:21):
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'sACIP [Advisory Committee on Immunization Practices],
and that's the one where RFKJr.
(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 Mitchell
(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.
(56:50):
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 atLaw Dork is that a big win is
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
(58:00):
and the HHS memo thatapparently was issued on January
31st and said they had toimplement it that day were
arbitrary and capricious and hevacated those memos and sent
them back to OPM and HHS to tryagain.
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 therewas info 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.
Jennie (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.
Chris (59:26):
Thank you.
Jennie (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
holiday weekend.
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 Jennie,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
@reprosfb on Instagram.
If you love our podcast andwant to make sure more people
find it, take the time to rateand review 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.
(01:00:32):
Thanks all!
Welcome to rePROs Fight Back, a podcast on all things
related to sexual andreproductive health rights and
justice.
Hi, rePROs.
How's everybody doing?
I'm your host, Jennie Wetter,and my 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 andlooking forward 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 wasborn and 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
(01:33):
was struck down.
It hasn't been in effect since2023, where abortion providers
were able tostart resuming providing servicesafter a judge issued a ruling. But now the state supreme court has completely struck it down which is amazing. I am so happy for my friends and family in Wisconsin who now have access to abortion and don’t have to worry about this zombie law coming back. So, that is super exciting.
What a great way to kick off mylong weekend.
(02:05):
I'm trying not to think aboutall the other things that are
happening.
The reconciliation bill isstill moving 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
Planned Parenthood, but theSenate passed their version of
(02:27):
the bill, and it is stillcontinuing to move forward.
The House has to take actionnow.
Again, recording on July 2nd,so things 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
deal with it.
But yeah, still moving forward.
But I am focusing on the bigwin out of Wisconsin.
(02:50):
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
the kitties when all of thefireworks are scaring them.
So I'm really looking forwardto a very, very chill weekend.
(03:11):
So those are the vibes I'mcarrying right now.
I'm really just leaning intothe happy bits and not worrying
about the stressful stuff that Ican think about when I start
working again next week.
Yeah.
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.
(03:34):
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 Geidner with Law Dork on.
We are going to be talkingabout some of the important
cases related to sexualreproductive health and rights
from this past Supreme Courtterm.
I've been promising y'all thatwe have a wrap-up episode
(03:54):
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 interviewwith Chris.
Hi, Chris.
Thank you so much for beinghere today.
Chris (04:10):
Hello.
Jennie (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?
Chris (04:22):
Yes, I am Chris Geidner, I run Law Dork, and my pronouns
are he/ him.
Jennie (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 and reproductive health
and rights, but it feels like weshould maybe just...
what are your overall thoughtson this term?
Like I said, it felt reallychaotic.
Chris (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 itsdocket.
There's how they decide it,sort of the legal ruling, and
(05:28):
that's sort of what we generallythink about 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.
Jennie (05:53):
Okay, let's talk about one of the ones that, you know,
speaking of timing, like Iwasn't quite ready for Skrmetti
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 withthis today.
What was the Skrmetti case andwhat happened?
Chris (06:12):
Yeah, I mean, Skrmetti was the challenge to Tennessee's
ban on gender-affirming medicalcare 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, butthe case 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 didthat, there were no
(08:25):
classifications on the law as heand the majority were
considering it, that the courtrecognized as getting heightened
scrutiny.
And that's when the courts lookat laws that classify people.
Basically they say, you know,all laws classify like that.
(08:47):
That's what laws do.
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 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 thiscase, there's sort of a middle
group called intermediatescrutiny, 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 that.
And so basically what thatmeans is that sometimes it'll be
allowed but that generallywe're still going to look at
that suspiciously but becauseJohn Roberts said there was none
(10:18):
of those classifications here,we just used rational basis
which is that lowest level thebasically it gets through level
and you just have to prove thatthere's a legitimate reason.
And as bad as theclassification decision from
(10:39):
Roberts was, what he actuallydid in the next part, I think,
was in some ways even 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 knewthere was 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 have been noway to get into the debate
(13:24):
beyond saying debate is enoughwithout acknowledging how faulty
the logic of the first part ofhis 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
was to basically nothing.
(13:45):
And therefore, not only are thelaws allowed, not only does
that mean that virtually all ofthe other states would be
allowed, but you also sort ofhad this even the things we
didn't decide are gettingskeptical look about them,
(14:09):
because since they decided thatthe Tennessee law was not a
transgender statusclassification, they didn't
resolve one of the questionsthat was before them, which was
what level of scrutiny of thosethree levels that I talked about
do laws and classificationsbased on transgender status yet.
(14:34):
So they didn't even resolvethat question.
But obviously, with the waythat they were talking about it,
it was hard to imagine thatthey would 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 Roberts'
(15:42):
bullshit.
He said...
I'm not quite sure how you saythis isn't a classification
based on transgender status.
Now, he said, ultimately, Idon't need to make that decision
because I'm going to assume itis a classification based on
(16:03):
transgender status.
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, which is
(16:27):
really interesting because whatthat means is that all five of
those justices who did join it,so all of the other Republican
appointees, are held accountablefor that and should be.
So that includes Barrett, whohas been trying to sort of play
this, I'm a thinker, I'm goingto look at these cases
(16:50):
objectively and reach anindependent conclusion in each
case.
Like, if you were willing to goalong with a rationale that
even Judge Sam Alito callsout, Justice Sam Alito called
out, you really need to thinkabout what you've done.
Like, it's sort of like, Imean, I'm a pretty...
(17:13):
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.
But if I, Chris Geidner, thinkthat you're being loud in the
(17:36):
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.
Jennie (17:51):
The thought that the debate is enough...
like, that's terrifying.
And how big that could get.
Chris (17:58):
It's astounding to me.
Yeah, it's really bad.
Jennie (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.
Chris (18:23):
Yeah.
So, I mean, now, the good, bad,and evil of that is that that
is now going to be that EqualProtection 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 closingout this 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 likewhy shadow docket decisions are
(19:10):
so 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 meansnow is, 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 beaddressing it.
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
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 explaining to JusticeBarrett how her lack of
(20:41):
education on this issue needs tobe corrected.
And we've got that time andthen there will be oral
arguments like this was justgranted now.
They've already granted somecases, so it probably won't be
till November or December.
The Skrmetti 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 monthsafter we know how the arguments
went to deal with that prepare,look at 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 asimportant at times as getting
quick resolution, like obviouslythe birthright citizenship,
because they said it's going, aclearly unconstitutional
executive order is going to gointo effect in part on July
26th.
Like, that needs to be resolvedand get back to the court
(21:50):
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.
Jennie (22:49):
Okay, that's a lot on Skrmetti.
That was a big case, hugeimplications.
The other big one that is goingto have big implications for
sexual and reproductive health,but also for so many other
things is the Medina.
Chris (23:05):
Medina. Yeah. Before we do that, just since we're not
going to go a lot into it, Ijust want to like some strands
in between Skrmetti and today'sgrants.
Jennie (23:17):
Yeah.
Chris (23:17):
It's important to know that in between there, we had a
couple of things that happenedthat I wrote about it a lot of
work and you can look at andread, but you had Mahmoud v.
Taylor, which was this decisionover LGBTQ+ inclusive textbooks
in Maryland, Montgomery Countyclassrooms, where Justice Alito
(23:42):
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
to anything in the curriculum,they basically have a right to
(24:03):
get notice of that and a rightto opt their children out of it,
which is absolutely insane,absolutely counter to the
court's precedence in theseareas.
This was a free exercise case,and the court, Justice Sotomayor
(24:25):
and her dissent here, reallylaid out how the quote "chaos"
that this was going to unleashfor school districts.
The only sort of opt-outs thatschools have had previously are
generally like self-containedlessons like essentially sex ed
class is the big one and her herpoint was like: how do you do
(24:49):
that when it's like a book?
That like these books were noteven like a chapter in a lesson
plan, they were books thatwould be on the shelves
available to be picked out bystudents.
And if the students chose thesebooks there were like lesson
(25:11):
plans for the day that would goalong with it like when you have
like read-along time where theteacher like reads a book and
the kids talk about it.
It's utterly unhinged and butit was sort of based in this
Free Exercise right.
Then on Monday, the court,which in Skrmetti, the case was
(25:35):
labeled US v.
Skrmetti, if you notice thesethings.
And that's because the casethat they actually took up was
the case that the Biden JusticeDepartment asked the justices to
take up, not the two cases thatthe individual plaintiffs, the
(25:56):
trans kids and parents anddoctors had brought in Tennessee
and Kentucky.
And the reason for that wasthat the Justice Department just
asked those two equalprotection questions about sex
classification and transgenderstatus.
The individual plaintiffs alsoasked a third question about
(26:19):
parental rights under the dueprocess.
There's a line of cases thathave to do with a parent's right
to control the upbringing of their child.
Now, on Monday, literally threedays, the next business day, as
the Justice Department isregularly saying these days in
(26:39):
cases when they say that they'rebeing overwhelmed by court
decisions, the next businessday, less than 24 hours after
the court issued this bigparental rights ruling on
Mahmoud, they denied the certpotential.
of the individual plaintiffs inthe Kentucky and Tennessee
(27:00):
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 Law Dork 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...
Montana, you would probablyknow, I forget, the abortion,
(28:13):
the parental consent
Jennie (28:16):
Yeah, I think that's Montana.
Chris (28:17):
The Montana Supreme Court, I think it was-
Yes.
-had struck down a parental consent there under
abortion law, under MontanaConstitution.
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 MontanaSupreme Court 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 agood vehicle 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 thecherry on top because we didn't
(29:47):
get a statement like that fromone of the Democratic appointees
on Monday when it came to thesame issue, when it came to
parents caring abouttheir trans kids.
Jennie (30:01):
That was really great to hear that progression because I
think with all of the thingshappening, I took notice of all
of them, but having that linedrawn was...
Chris (30:13):
Yeah, that was literally over six days.
That was over seven days.
I mean, from Friday toThursday, that's what happened.
We had five different trans andor parental rights cases that
basically the way they came outwas...
wholly based on whether it wason the left side of the ledger
(30:40):
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.
Jennie (30:52):
Okay.
Medina.
Chris (30:54):
So, yeah, with that, Medina.
So...
Medina was this case thatreally shouldn'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 doingwas sort 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 Parenthoodprovided to patients who needed
them.
And that's like part one.
Then the providers and patientssued because under the Medicaid
(32:05):
Act, there's a provision thatsays that it was known, I guess
we should say.
I mean, it technically stillis, but where we're going
essentially means that it'sworthless.
There's a provision that wasreferred to as the any qualified
provider provision.
And what that provision said ispretty self-explanatory from
(32:28):
the words that are used todescribe it.
It says that under Medicaid,you are allowed to choose, have
any qualified provider provideyou with the needed medical care
that you have.
And essentially, that was aprovision intended so that the
state couldn't just pick aprovider, so that they couldn't
(32:51):
pick and choose who they wantedto provide services to
essentially create like a winnowto either sort of corruption or
provide only bad services toMedicaid patients.
Those were sort of the twoconcerns animating it.
And sort of essentially whatSouth Carolina did was right in
(33:17):
that wheelhouse because that wasthe provider that they wanted.
And a lot of the reasons, ifyou like actually dig into the
case, the reason why thesepeople said these the client,
the plaintiffs in the suit,like, said that they wanted this
is that they specificallywanted to go to Planned
Parenthood because that waswhere they didn't feel judged
(33:39):
for their conditions, that waswhere they felt safest getting
medical care, that was wherethey felt they could ask the
questions that they needed toask.
So, like, it truly was right inthe wheelhouse of: why this had
been created then?
The next phase in this casecomes with, well, what do you do
(34:00):
if you have this law?
It's not being followed in yourview and the state is trying to
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
(34:26):
violating your rights.
And the traditional lawsuitthat you hear about 1983 actions
that like, is what you'rethinking about generally is like
prison inmates, when violencehappens in prisons, when prison
inmates are abused, when there'swrongdoing in prisons.
(34:46):
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
a law that evolves out of theReconstruction era and has a
very broad interpretive purposeof affecting anybody's rights.
(35:10):
And they were looking atsituations, and now, like, you
have to take it to one level ofgenerality to, like, think that
I'm talking about today's case,but it's not that difficult.
They were looking at situationswhere state and local officials
had an ideological oppositionto the basic treatment that
(35:37):
people were wanting to get toimplement their legal rights
under federal laws, but stateand local officials 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.
(36:01):
We are going to create a rareinstance where we are going to
say that individuals can haulstate officials into federal
court.
That was obviously in theReconstruction era.
That was Southern governors whowere denying rights to newly
(36:24):
freed slaves.
That is Southern governors whodidn't want these freedmen to
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.
(36:45):
The law does not even say itonly applies to race.
It applies to all people whoare being, having their rights
violated.
And they brought this lawsuitand it went up and essentially
we go through the courts and theconservatives have tried to
(37:08):
pull back the right of people tosue under 1983 for a while now.
And this took it even further.
And you got this opinion fromGorsuch, Justice Gorsuch.
It was, again, another 6-3decision.
(37:28):
And he essentially said,instead of looking, I mean, you
look at these conservatives whoeverything else is about history
and tradition, but when it cameto this case, Justice Gorsuch
literally turned to a 2023decision and the court's
(37:53):
analysis of a nursing statuteand said, well, look, the
nursing statute actually saysthe word "right" several times
in the statute.
And that's why we said thatthat is the type of statute that
creates a right.
(38:13):
And we have said that you canonly bring a lawsuit under 1983
for a statute as opposed to aconstitutional violation when
there is clear rights-creatinglanguage in the statute.
Now, contra that, at oralargument, Justice Kagan was
(38:40):
talking with the lawyer for thestate who was trying to defend
this argument.
And she, like, I mean, JusticeKagan doesn't get flustered.
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.
(39:03):
Like, what?
It's an awareness of theability to obtain a provider of
your 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
(39:25):
were saying, oh, no, we don'twant a magic words test.
But that's essentially what hedid, that the language is that
this nursing statute provided,quote, the only reliable
yardstick against which tomeasure whether spending power
legislation confers a privatelyenforceable right.
(39:48):
And so, essentially, they cut awhole chunk out of 1983
litigation, which- this is likea win-win for conservatives
because they always want to cutdown 1983 legislation and this
let them do so in a case wherethey were giving a win to the
(40:10):
defund Planned Parenthoodmovement.
Jennie (40:12):
Yeah, and I think that's a really important point that
it is bigger than just PlannedParenthood because I think a lot
of the coverage has reallyfocused on the Planned
Parenthood part.
And one, it could also be otherproviders that could be
targeted.
It is going to endup being so much bigger, right?
Chris (40:30):
Well, and 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 thefederal government.
And so, the spending clause isone of the only ways, because we
(40:53):
have 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, becausethe federal government gives out
so much money to states thatthey can attach conditions to
(41:14):
it.
And so the question here iswhen the spending clause is the
mode that Congress has used tocreate a state obligation, when
can that statute create theability for an individual to sue
(41:37):
under 1983 if they aren't- ifthe state says, 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.
(42:20):
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
(42:41):
in rights-based litigation, butthat essentially, if you don't
have the White House in yourcamp, there is no way of dealing
with states that don't want toenforce this spending clause.
Jennie (42:58):
Okay.
Again...
Chris (42:59):
And in addition to that, sort of part two of that was,
that's even further removed fromthis 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 the first20 years of his time on the
(43:21):
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 they'reconcurrences.
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 eralegislation, 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 sharperpart of 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 thereconciliation amendments 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.
(45:16):
Until Justice Sotomayor cameon, 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 isvery comfortable, very quickly
saying, what are you talkingabout?
And she wrote a very harshdissent that was good.
(45:45):
She said, because his opinionis not 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
historical account he wroteoffers reflects the level of
depth, nuance, or context neededto support the wholesale
(46:09):
reappraisal he is envisioning.
I mean, she basically said,what are you, she later said,
more caution, parentheses, andmore research, end parentheses,
may be warranted before ourlongstanding precedents in this
area can be seriouslyscrutinized or attacked.
(46:31):
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
[where] she went back and lookedat like what actually was going
on then (46:46):
what were people talking about then?
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
(47:06):
era of watching Justice Thomas'solo dissents where she is very
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
(47:30):
you're wrong.
Your history is wrong.
Your alleged reliance onhistory and tradition is wrong.
And I'm going to call it outwhen you do so.
And she'll go outside ofhistory and tradition and she'll
say, no, why are we evenlooking at history here?
(47:52):
Let's look at what's actuallyhappening.
Let's look at the reason whythey passed these amendments.
Let's look at the reason whythe forward look purpose of
these statutes.
She's also given someincredible dissents in labor
law, which I think is reallyinteresting, and I've been
watching closely.
(48:13):
And I just, I think that it'svery good that we have someone
who knows that she's going to beon the bench for most likely
for much longer than the twoother Democratic appointees with
her.
And she is very comfortablesort of laying out her own
(48:35):
position.
But it's not that she sees itas as like,
I'm writing for myself because nobody else understands me, which is what sort of what some of Thomas' dissents were. She is writing from the start as a (48:43):
everybody else should be thinking about this. And I think it is only one step removed from when we would get those Ginsburg dissents saying, or sometimes concurrences or judgements saying
(49:15):
Congress should act or like theLedbetter 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.
Jackson doesn't need to do thatbecause she is, she's laying
(49:38):
forth a public vision that is,is the, the way that we that she
believes we should be lookingat at The Constitution, the law,
our democracy, our republic, Ithink it is that big.
You look at her solo dissent inthe nationwide injunctions case
(50:00):
on Friday is a perfect exampleof that.
Jennie (50:03):
Okay, Chris, I want to be respectful of your time.
So, don't want to keep goingtoo long.
But maybe we want to do a realquick hit on Braidwood since it
was PrEP was at the center ofthat.
Chris (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.
(50:56):
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, theygot one 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 thatled to the PrEP and
contraceptive coverage beingincluded.
He also would have struck downtwo other boards.
(51:42):
And then when it went up to theFifth Circuit, the Fifth
Circuit said, well, he's wrongon these two other boards, but
he's right on the PreventiveCare 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 in2010, they were like, oh, we
don't need a new task force forthis.
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 SupremeCourt.
It's blown up because it isthis whole 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 disagreewith the 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 isvested on under the HHS
secretary, which is the way thatanything under any agency
ultimately is determined.
(55:21):
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'sACIP [Advisory Committee on Immunization Practices],
and that's the one where RFKJr.
(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 Mitchell
(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.
(56:50):
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 atLaw Dork is that a big win is
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
(58:00):
and the HHS memo thatapparently was issued on January
31st and said they had toimplement it that day were
arbitrary and capricious and hevacated those memos and sent
them back to OPM and HHS to tryagain.
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 therewas info 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.
Jennie (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.
Chris (59:26):
Thank you.
Jennie (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
holiday weekend.
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 Jennie,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
@reprosfb on Instagram.
If you love our podcast andwant to make sure more people
find it, take the time to rateand review 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.
(01:00:32):
Thanks all!
Popular Podcasts
NFL Daily with Gregg Rosenthal
Gregg Rosenthal and a rotating crew of elite NFL Media co-hosts, including Patrick Claybon, Colleen Wolfe, Steve Wyche, Nick Shook and Jourdan Rodrigue of The Athletic get you caught up daily on all the NFL news and analysis you need to be smarter and funnier than your friends.
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com