5-4 x Even More News - Abortion Rights

The hosts join Katy Stoll and Cody Johnston from Even More News, to talk about what the Supreme Court's decision to hear a Mississippi abortion ban case means.

Another crossover episode with our friends from Even More News

0:00:03.2 Peter: Welcome to 5-4. It's me, Peter, apologies to any Leon fans out there that I'm kicking it off this week, and that's because this week's episode is a special one for two reasons, First Rhiannon joined us from Amman Jordan, she was traveling, but podcasting is more important than visiting your family on the other side of the globe, so Rhiannon managed to carve out some time and prioritize us, and the second special thing is that this is another crossover episode with our friends at Even More News. We are talking about the future of reproductive rights, specifically the fact that the Supreme Court has agreed to hear a case about Mississippi's, New super restrictive abortion law that case could basically overturn Roe v. Wade, as we know it. So Katy and Cody at Even More News had us on to discuss it. I hope you enjoy.

0:01:02.7 Katy Stoll: Hello, and welcome back to Even More News the first and only news podcast, my name. You guessed it. It's Katy Stoll.

0:01:13.0 Cody Johnston: I was gonna guess that.

0:01:14.1 Katy Stoll: You were?

0:01:14.9 Cody Johnston: Yeah.

0:01:15.2 Katy Stoll: I knew it. That's why I said you specifically guessed it.

0:01:17.9 Cody Johnston: It's still right me specifically being Cody Johnston is my name. Hello? Hi.

0:01:21.5 Katy Stoll: Hello. Hi. Today, we are extremely thrilled to be joined again by Peter and Rhiannon of Five Four Pod hi guys.

0:01:32.6 Peter: Hey.

0:01:33.2 Rhiannon: Hello. Hi.

0:01:34.8 Katy Stoll: Hi. Hi, I think last time I introduced it as 5-4 pod, and this time I said, Five Four, what's the official consensus, 'cause I've heard it referred to in a bunch of different ways.

0:01:46.0 Peter: We have never firmly established what it is.

0:01:49.7 Katy Stoll: Cool.

0:01:49.7 Peter: And I plan to never do it, yeah. It's whatever you want it to be...

0:01:53.0 Rhiannon: Vibes only we just go by vibes. Whatever you're feeling.

0:01:55.5 Katy Stoll: Yeah. I love that, I love that vibe energy. Last time you were here, I had a minor anxiety spiral afterwards of like, "Oh no, did I say the name of the show wrong," so I just felt like I would lead with it today and just get everything out in the open...

0:02:10.6 Rhiannon: You're doing great, Katy.

0:02:12.5 Cody Johnston: It's Five, Four vibes today, apparently.

0:02:15.5 Katy Stoll: Before we dig in, I just have got to stop and wish everybody a very Happy Pride Month, it's pride month yay.

0:02:24.5 Peter: Yeah it's the month.

0:02:25.3 Rhiannon: Hell yeah.

0:02:25.7 Katy Stoll: It's the month of pride. I think that everybody knows where we stand as individuals, but as a small business, I feel it's very important that we express our solidarity at this moment in time.

0:02:39.8 Rhiannon: That sweet, sweet corporate solidarity we love that.

0:02:43.5 Katy Stoll: Yes.

0:02:43.7 Cody Johnston: Our logo for this episode will be rainbow colored, and that is it.

0:02:47.7 Rhiannon: Thank you for your service.


0:02:51.8 Katy Stoll: Okay, so as most of our listeners know as well as our guests, 'cause I mentioned this right before we started recording, I have been out of town for the past month dealing with family stuff, and I'm getting my bearings together still, which is why... Which is part of the reason why I am thrilled at the timing of this episode, I would have been thrilled anyway, because I think you guys are awesome, but I'm very grateful to have you guys here today and to talk to us about the Mississippi abortion ban that is making its way to Supreme Court and could potentially decide that all state laws that ban pre-viability abortions are unconstitutional, and what that means for abortion rights everywhere. At least here in the States. So thank you guys so much for joining us. This is a really big and important topic and your insight is very valuable.

0:03:48.7 Peter: Yeah, absolutely. And we're glad to be here. I'm gonna jump right in. Cutting off my female co-hosts on the abortion issue right off the bat.

0:04:00.1 Rhiannon: Go ahead go ahead my strongest male ally, Peter, thank you so much.

0:04:05.9 Katy Stoll: Yeah. We defer to you.

0:04:05.9 Cody Johnston: If I could also interrupt everybody real quick...

0:04:10.7 Rhiannon: Absolutely.

0:04:10.8 Cody Johnston: Okay Peter go on.

0:04:10.9 Rhiannon: Yeah, yeah if over the course of this episode, if the guys could just interrupt us and maybe just sort of like mansplain... Maybe female anatomy.

0:04:17.3 Katy Stoll: Yeah.

0:04:17.6 Rhiannon: I think that would be really helpful.

0:04:18.6 Katy Stoll: Yeah, that would be great. Could you tell me where the vulva is?


0:04:21.0 Katy Stoll: Sorry is that too much too soon?

0:04:24.9 Cody Johnston: On the female body.

0:04:26.8 Katy Stoll: You guys look uncomfortable.

0:04:29.5 Peter: It's down there, I'll tell you that.

0:04:30.9 Katy Stoll: It is down there, it is down there.

0:04:33.5 Cody Johnston: It's locatable.

0:04:35.1 Katy Stoll: It's one of the parts. Actually, it's a lot of parts... We call the vulva. Anyway, go ahead boys.

0:04:42.7 Peter: Yeah, no I'll just hop right back into this... Yeah, there's this case that coming out of Mississippi, Dobbs v. Jackson women's health organization, and the Supreme Court just took it, and that means it's coming down next term, but I think to understand it and its place in the law classic Five Four fashion for our fans. I think we first need to walk through 50 years of legal history...

0:05:13.4 Cody Johnston: Yes.

0:05:14.8 Rhiannon: That sounds right, yeah.

0:05:15.5 Peter: And that starts with Roe v. Wade, which is a 1973 case. And what really happened in Roe, high level was that it takes the constitutional right to privacy, which had sort of recently begun to be recognized in other cases, and says that that right includes the decision to have an abortion or not, so in Roe the court adopts like a trimester framework where they make it harder for states to regulate abortion earlier in the pregnancy, they basically make it impossible for states to regulate abortions in the first trimester, possible in very limited circumstances in the second, and then the states have a little more leeway to regulate or ban it in the third and then in 1992, about 20 years later, there's another case called Planned Parenthood v. Casey, conservatives had sort of taken control of the court at this time, and they were trying to overturn Roe v. Wade.

0:06:13.4 Katy Stoll: Yeah.

0:06:13.4 Peter: And instead of that happening, the moderate conservatives on the court sort of formed a coalition to uphold the Roe, but considerably limit it in two ways, the first is that they got rid of the trimester framework, they say that it's outdated, and what really matters is so-called the viability, so they say that the states can regulate abortions after the fetus is viable, and that sort of pushes up the timeline a bit, so states can regulate abortions earlier in the pregnancy than they could under Roe, and the second thing this case does is it creates a new standard which says that you can regulate abortion as long as the regulation doesn't place a "undue burden on the ability of a woman to seek an abortion."

0:06:57.4 Rhiannon: Right.

0:07:00.1 Peter: The standard created in Roe was a lot stricter. So this gives states that want to regulate abortion a lot of leeway and a lot more leeway than they had before, and what ends up happening is that much of the following 30 years of litigation about abortion has been about what exactly an undue burden is. Right? It's a vague term. There's no real clear definition. Conservatives sort of put overturning Roe itself on the back burner a bit, and they started taking this death by a thousand cuts approach where they'd impose all sorts of restrictions on abortion, from parental notification requirements for minors, to mandatory transvaginal ultrasounds, to restrictions on abortion clinics themselves like...

0:07:48.2 Rhiannon: Yeah, yeah.

0:07:48.2 Peter: Things as petty as what basically amount to zoning restrictions, and they'd test these things out in the courts, see what works and just sort of slowly whittle away at abortion rights over time, and the result is that even though abortion is still technically a constitutional right, there are states where material access to abortion services is incredibly scarce, and even if you do have access, the process is incredibly onerous.

0:08:14.1 Rhiannon: Yeah, yeah, that's exactly right. So yeah, like Peter said, you can see this kind of back and forth, slow whittling away at the abortion right over the course of say, the past 30 years or so. So for example, in 2000, there's this case called Stenberg vs. Carhart, also known as Carhart number one, 'cause there's a second case that follows it, but in Stenberg vs. Carhart, the first one, the court, the Supreme Court actually struck down a Nebraska law that banned late-term abortion procedures, including a lot of commonly used procedures that occur in the second trimester regularly in the abortion care context, but then in the second Carhart case, which was just seven years later, the Supreme Court essentially overruled itself when they upheld the federal ban on so-called partial birth abortions, and in that case, Gonzales vs. Carhart, the Supreme Court said that the 2003 partial birth abortion ban Act was facially constitutional. It was just fine. And so by that time, in 2007, Sandra Day O'Connor had retired from the court and Samuel Alito had taken her place, and you know, I just wanna note, while I was thinking about Samuel Alito that Samuel Alito, I think the best way to describe him might be the human embodiment of that taste in your mouth when salt is sitting on your tongue for too long, you know? And...

0:09:51.2 Katy Stoll: I do know and then it gets stuck in your throat.

0:09:56.1 Rhiannon: Yes. Yeah, yeah, yeah, yeah.

0:09:56.2 Peter: Yeah.

0:09:56.4 Rhiannon: That's Sam Alito.

0:09:57.6 Katy Stoll: Yeah, yeah.

0:09:58.0 Rhiannon: [chuckle] So Gonzalez vs. Carhart also known as Carhart number two, was really a sign to the conservative political and legal movements that the Supreme Court was really taking a right turn in its jurisprudence on abortion, they heard two cases on really similar issues, these late-term abortion restrictions, they hear these two cases on the similar issues within a span of a few years, and they come out the other way with a conservative ruling the second time around, and so that brings us to sort of more recent Supreme Court cases about abortion. We see another attempt at a similar kind of flip-flop from Conservatives most recently with a case called Whole Women's Health in 2016, and that was followed by June Medical in 2020. So these two cases are even closer in terms of the factual background, the issues presented to the court, it's even closer, more similar than the two Carhart cases, and so just to emphasize, like Whole Women's Health and June Medical, they are the same case.

0:11:06.0 Rhiannon: It is the same issue. So just to explain a little bit, at issue in Whole Women's Health in 2016 was a Texas law that required that facilities that provided abortions be certified as "Ambulatory surgical centers," meaning they basically had to retrofit their facilities and equipment to meet the standards of a hospital emergency room. Obviously, that was completely unnecessary because abortion procedures are sort of exceedingly safe, the vast majority are conducted on an outpatient basis, all of that. The Texas law in at issue in Whole Women's Health also required that abortion providers have admitting privileges at a hospital within 30 miles of the abortion clinic. Again, that's not only medically unnecessary, but also would have had the real-life consequence of many abortion providers, particularly in rural areas, just having to shut down because they're not that close to a hospital.

0:12:04.8 Katy Stoll: Yeah, I remember this being... This was recent... You've already mentioned that it's recently, but I remember being up in arms about this.

0:12:11.5 Rhiannon: Yeah, yeah, absolutely. It was ridiculous. I actually went to DC and camped out at the Supreme Court and saw oral arguments in Whole Women's Health.

0:12:22.5 Katy Stoll: Wow.

0:12:23.0 Rhiannon: So yeah, this was... It was pretty intense. Definitely.

0:12:26.4 Peter: Rhiannon was doing like waiting for an iPhone but for but for even worse nerds.

0:12:33.0 Cody Johnston: Right.


0:12:36.4 Katy Stoll: It's just like...


0:12:36.5 Rhiannon: I've been... [laughter] I've been exposed as a nerd.

0:12:37.6 Katy Stoll: A sneaker head, but for Supreme Court cases. [laughter]

0:12:42.5 Rhiannon: Right. So, in Whole Woman's Health though, in that case, the liberals won the day, it was a 5-4 decision, and they struck down the Texas law saying that it placed an undue burden on women according to the KC v. Planned Parenthood standard. So, great, swell, that was a good case for reproductive rights, but, like I said, they sort of had this one-two step, and Anthony Kennedy, retired, and we all know that the big toe, Brett Kavanaugh replaced him, and conservatives were like, "Hell, yeah, we get a second bite at the apple, let's do this," right? So, that's how we get the second case, June Medical in 2020, it is almost exactly the same law, but this time, it comes out of the State of Louisiana. So, conservatives thought that having a solid five Justice majority on the court would deliver them the goods that they wanted, if not totally overturning Roe vs. Wade, then at least sort of upholding these really restrictive laws and giving the green light to state lawmakers to kind of go ape shit on reproductive freedom. And Kavanagh, Justice Kavanaugh, does join the conservatives, but this time it's actually in descent because Chief Justice John Roberts actually joins the Liberals in a concurrence because he's at least concerned enough with the appearance of Supreme Court legitimacy and consistency that he kind of says, "No, look, we just decided this damn case four years ago, we can't just do a 180 right now," but you know...

0:14:26.3 Cody Johnston: "We've gotta respect the norms," yeah.

0:14:28.3 Rhiannon: Right, right, [chuckle] "We've gotta respect the norms." [laughter]

0:14:30.8 Peter: That's right. It was like it was just too shameless, I think, for him.

0:14:35.9 Rhiannon: Yeah, yeah.

0:14:36.2 Peter: It was such an obvious political ploy, and he's such an institutionalist that wants the court to be respected that he couldn't in good conscience let them...

0:14:46.8 Cody Johnston: Yeah, it tastes too strongly like the current GOP as opposed to having sprinkles of it.

0:14:51.0 Peter: Right.

0:14:53.1 Cody Johnston: We can't like, yeah.

0:14:53.1 Katy Stoll: Also, the whole conversation over the last five years as Trump has had opportunity after opportunity for whatever reason to add justices to the Supreme Court has been this specific issue.

0:15:13.9 Peter: Yeah.

0:15:14.0 Katy Stoll: One of the abortion rights, it's a linchpin issue right now, and so, yeah, it would have been egregious on so many levels to blatantly [0:15:22.7] ____.

0:15:23.5 Cody Johnston: Yeah, he would have been so transparent.

0:15:25.9 Katy Stoll: They just talked, they just decided, anyway.

0:15:28.5 Cody Johnston: So, a quick query, so you've mentioned that these cases are very, very similar, like it's the same law sort of in different places, and obviously there's this long project going on of like, "Okay, we're gonna try this, we're gonna do this, we're gonna bring... We're gonna make sure this goes to the Supreme Court," and sort of whittle it down, and they have a whole court plan, like they're playing the court for this purpose, among other things, do they even bother changing the language? 'Cause so much of the language is open to interpretation.

0:16:00.0 Katy Stoll: Yeah.

0:16:00.0 Cody Johnston: And it's a long process of just defining it over many years, do they even bother, or is it just like, "We're just gonna try it again?"

0:16:08.0 Peter: It depends on the case, I mean, most of them are just trying to find nuance where no reasonable person could really [chuckle] find nuance.

0:16:15.9 Cody Johnston: Right, right.

0:16:17.1 Katy Stoll: Yeah.

0:16:17.2 Peter: Right. With the Whole Women's Health and June Medical, it was the same basic case and the conservatives were basically taking the position of, "We got it wrong four years ago, but this is the way we should do it now."

0:16:29.9 Cody Johnston: Okay, okay.

0:16:30.6 Peter: So, they weren't trying to pretend that they were adhering to it, they were basically saying, "That was a mistake, we should change the tune."

0:16:38.7 Cody Johnston: Right. Well, I guess 2020, it was 2020, so pretending is over also. [laughter]

0:16:43.6 Peter: Yeah.

0:16:43.8 Cody Johnston: Why bother at this point?

0:16:44.8 Rhiannon: Yeah, that's exactly right. And even though John Roberts sort of keeps up the air of respecting precedent and Supreme Court legitimacy, he's a slippery little fish boy. So, in June Medical, he does a deft little maneuver in his opinion where he says, "Hey, no one has asked us to overrule Planned Parenthood versus Casey, so we can't do that right now, LOL, LOL," right? And this is obviously basically an invitation to conservatives to keep bringing challenges to abortion rights to the court, and like he's saying, "Give us a case that asks us to overrule Planned Parenthood vs. Casey so we can talk about that next time," he thinks he's a very clever little boy there.

0:17:29.9 Cody Johnston: Yeah.

0:17:30.2 Peter: Yeah, which is what... [chuckle] Which is where we are. [laughter] And I think I'll... Rhi, I'll let you explain Dobbs a little bit, 'cause I think you know more than I do. But the thing to remember is that Roe is the case that creates the constitutional right to an abortion, but Planned Parenthood v. Casey is the case that defines that right as we understand it right now.

0:17:53.0 Katy Stoll: Right.

0:17:53.0 Rhiannon: Yeah.

0:17:53.3 Peter: I think a lot of people talk about overruling Casey, and you might be like, "Huh, well, what does that mean?" It probably means overruling Roe, [chuckle] or at least coming very close to it, it's almost like euphemistic to talk about overruling Casey, I think it's functionally the same in most situations.

0:18:11.4 Cody Johnston: Right, it's the same, yeah, essentially, it's like one stone further you're stepping towards.

0:18:16.5 Peter: Right, right.

0:18:17.5 Rhiannon: Exactly, exactly, yeah. So, that brings us to Dobbs, which is the case that's pending that will be heard this coming term at the Supreme Court. So, Dobbs is a case, I think, like Katy mentioned up top, it's a case about the constitutionality of this time, a Mississippi law that forbids abortions after 15 weeks, so just to kinda emphasize, this is a full ban on all abortions after 15 weeks, which is way before the point at which a fetus would be viable outside the womb. And the law only has two very narrow exceptions, first, if a doctor determines that the fetus could not survive even if carried to full term, and second, if a pregnant person's life was at risk, should they carry the pregnancy to term? That's it.

0:19:10.0 Rhiannon: So, there are no exceptions in this Mississippi law, there are no exceptions for cases of pregnancy occurring as a result of rape or incest, none of that, this is super highly restrictive, and if this law is upheld, it would really signal effectively the overruling of Roe and Casey even if the case doesn't sort of explicitly come quite that far. In fact, this case came to the Supreme Court from the notoriously conservative Fifth Circuit Court of Appeals, and even there, the Mississippi law was struck down. Notoriously conservative Trump-appointee Judge James Ho on the Fifth Circuit said that the Mississippi law is so contrary to the court precedent on abortion, that it was his "duty to strike it down," so when... But when Mississippi appealed from the Fifth Circuit, the Supreme Court decided to take the case anyways, so we're already kind of in ominous territory.

0:20:07.7 Peter: Yeah, there's sort of a... These laws are often passed in order to invoke a legal challenge, right? Like, they know that the court in Planned Parenthood v. Casey basically expressly said, "You can't ban abortions before viability." They defined viability as like 23-ish weeks, which was a little early [chuckle], but they were being aggressive. So, this law is plainly violating the Supreme Court precedent, and that's why it exists, they did it so that it would be challenged, so that they could drag it up to the Supreme Court. And I guess the next natural question is like, what's the Supreme Court gonna do?

0:20:49.3 Rhiannon: Yeah.

0:20:50.0 Peter: We're not in like... We're not in the prediction game, which is mostly because research shows that no one can actually predict effectively, or at least most people can't. I will say that it does seem like there is some very clear factions where you have the three liberals, you have the three most conservative members, in Coney Barrett, Thomas, and Alito, and those factions are pretty set in stone. Roberts and Kavanaugh are a little more up in the air to the extent that anyone is, but I think the most telling piece of information we have is the question presented to the court. So, when the Supreme Court takes a case, it doesn't accept the case in its entirety or anything, it selects precisely what question it will be answering and then it answers that question, so without getting too deep into the details here, they could have taken up a very narrow procedural question concerning like which legal standard should be applied to a law like this.

0:21:49.4 Rhiannon: Right, right.

0:21:50.2 Peter: Instead, though, the question they took is, "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

0:22:00.3 Rhiannon: Yikes.

0:22:01.1 Peter: Again, that's a question that the court has already answered in Planned parenthood v. Casey, it said, "Yes, prohibitions on pre-viability abortions are unconstitutional," so it's pretty telling that this is the question they took because why would you take a question that the court has already answered unless you're gonna change the answer, right?

0:22:21.2 Cody Johnston: Right.

0:22:21.6 Rhiannon: Exactly.

0:22:21.7 Katy Stoll: And in this ruling, it can be decided to overturn something, or does that have to be brought...

0:22:28.0 Peter: Yeah.

0:22:28.7 Katy Stoll: Yes, okay.

0:22:30.0 Peter: It's one of those... The court is being presented with options here, they could flat out say, "Roe doesn't exist, the constitutional right to abortion doesn't exist," or they could say, "Roe is much narrower than we had previously conceived it," no pun intended with the conceived. I think that the...

0:22:49.8 Rhiannon: Oh, making conception jokes, Peter, great.


0:22:52.7 Peter: When life begins...

0:22:55.2 Cody Johnston: Unbelievable, unbelievable. [laughter]

0:22:57.8 Peter: I think that like... Again, we don't like... We don't have a lot of insight into what the court is likely to do, whether they're gonna do that like half-measure or not, I will say though that, although I think the savvy thing to do would be to not overturn Roe, this is gonna drop in a year, it'll be just a few months before the mid-terms, if they're thinking in political terms, it might be a little bit crazy to stir up the Democratic base like that.

0:23:28.2 Rhiannon: Yeah.

0:23:28.8 Cody Johnston: Yeah, it has already happened, it already happened in 2018.

0:23:32.3 Peter: Yeah, that's right, and, yeah, you don't wanna ascribe too much savviness to them, I think, especially because it's important to understand the degree to which the modern conservative legal movement is linked to abortion, like original-ism is the predominant strain of legal ideological thinking on the right, and that as a popular concept in conservative legal circles only really gained traction in the early '70s and was like bolstered by Roe, by right-wing reaction to Roe, they needed some like ideological academic reason to oppose it.

0:24:08.9 Katy Stoll: Yeah.

0:24:09.5 Rhiannon: Exactly.

0:24:10.3 Katy Stoll: It was created, this fierce opposition around that time, it wasn't around before.

0:24:16.8 Peter: That's right, and for the next 20-30 years, conservatives just banged the drum of liberal Judicial activism is out of control, and Roe was like the beating heart of that idea of that movement. So, I mentioned earlier that it was a coalition of moderate conservatives who sort of saved Roe in Planned Parenthood v. Casey, that particular development is also a huge factor in like the intensive vetting process in judicial nominations, that when Republicans just... When they nominate a judge, they don't want to see any ideological drift, it happened with Souter, it happened with Kennedy and O'Connor, and they want to ensure that they are nominating people who are gonna stay firmly on the right, they're obsessed with this, and so conservative legal ideology and anti-abortion sentiment are deeply intertwined, they've all been trained to think that Roe is this great injustice afflicting American jurisprudence, that's like the Kool-Aid that six justices on the court have been drinking their entire professional lives, so I'm not super optimistic that they're gonna take the savvy route rather than the... The opportunity that you've been waiting for is being presented to you, right?

0:25:31.1 Katy Stoll: Right.

0:25:33.1 Cody Johnston: Right.

0:25:33.3 Katy Stoll: I'm not sure this is a little bit of a tangent, but how exactly do they choose which cases and when if you have any insight into that? Because it's hard to not feel like this is coming up. I think this will be the first case that Amy Coney Barrett will be seeing on abortion, and it feels like that part is calculated.

0:25:53.0 Rhiannon: Absolutely, it's absolutely calculated. It's not just a feeling, you are right, it is absolutely calculated because...

0:25:57.7 Katy Stoll: Okay. Thank you for validating me. [laughter]

0:25:58.5 Rhiannon: Because like we've said, in the historical context, the standards and the jurisprudence has been pretty clear, and the Conservatives have been chipping away at the abortion right forever since Casey for sure, and the Conservatives in addition have made multiple attempts at overturning Roe already. And so, yeah, so this is kind of in line with what they've been doing in the Conservative legal movement. In terms of how they take a case, yeah, thousands of cases get appealed to the Supreme Court every year. Obviously, the Supreme Court, the justices themselves decide what cases they will take. I believe Peter, correct me if I'm wrong, but I believe it takes four justices to...

0:26:43.8 Peter: That's right.

0:26:45.8 Rhiannon: To accept a case to say that they want to hear the case, and so yeah, the Conservatives have a six justice majority, likely Amy Coney Barrett, Kavanaugh, Gorsuch, for sure, Alito, Thomas, they said they wanted to hear the case. So it was I think at this point, pretty easy for Conservatives to get the case in front of the Supreme Court. And so just kind of turning to maybe... Oh, I hate even... It gives me the heebie-jeebies even kind of saying it, but imagining a world kind of without Roe versus Wade, or a severely limited Roe versus Wade, and what might happen if Dobbs does effectively overrule Roe and Casey, Conservatives see this as a moment of great opportunity and it didn't happen by chance, right?

0:27:40.2 Rhiannon: They intentionally built a Supreme Court around this idea over the course of the past few decades, and state lawmakers know that and they're seizing on the moment too. Just in the past few months, there have been a ton of new abortion restrictive laws passed at the state level. In fact, the Guttmacher Institute recently reported that 28 new restrictions on abortion were signed into law in a span of just four days in April. And so Conservatives are just salivating for this moment, right? And so if Roe is struck down, if Casey is substantially hindered by the ruling in Dobbs next year, there's already a slew of extremely restrictive legislation ready to go into effect. Many states have so-called trigger laws already on the books, meaning that should Roe be overturned, abortion bans would automatically go into effect. My home state, Texas just passed a ban on abortion after detection of a heartbeat, got to be as soon as six weeks into a pregnancy.

0:28:46.1 Katy Stoll: Yeah I was gonna to bring this up.

0:28:48.2 Cody Johnston: Those keep popping up, yeah.

0:28:49.9 Rhiannon: Yeah, yeah.

0:28:51.4 Katy Stoll: Yeah, six weeks is...

0:28:51.9 Rhiannon: Yeah, that can be as soon as six weeks into a pregnancy.

0:28:54.6 Katy Stoll: It's wild, six weeks. Boys, did you know that stress or any sort of an extreme situation can fuck up your menstruation. Six weeks, you might not even think twice that you've missed your period.

0:29:13.9 Rhiannon: Absolutely.

0:29:14.7 Katy Stoll: That is too soon for...

0:29:16.2 Rhiannon: Yeah, absolutely.

0:29:17.8 Katy Stoll: Yeah.

0:29:19.2 Rhiannon: Yeah, six weeks is commonly before many people even know that they are pregnant, so yeah.

0:29:26.0 Katy Stoll: I wouldn't take a pregnancy test till well after that, anyway.

0:29:30.0 Rhiannon: [chuckle] Totally. And you know, it's not an accident that the clinic bringing the challenge to the Mississippi law in Dobbs, that clinic is called Jackson Women's Health. It's the only clinic that provides abortions in the entire state of Mississippi, almost 90% of the counties in the United States do not have an abortion clinic. So in addition to just already existing lack of geographical access to abortion, you have laws that require waiting periods between an initial appointment with a provider and the actual abortion procedure. You have laws that require medically unnecessary sonograms, on and on and on. And so this is all, like we've been saying, it's all by design, and it's a sign of how state legislators have been able to just constantly be pushing the line that was drawn by Casey, that undue burden standard.

0:30:28.8 Cody Johnston: How fluid is even the term viability? 'Cause it seems like they run pretty fast and loose with that.

0:30:36.8 Peter: They do. The Supreme Court in Casey's sort of pended I think it was 23 weeks, so you can't get too far from that without running a foul of Casey technically, but that's why I think this case exists and that I think the sort of certainty of that. The fact that you can't really deviate from 23 or so weeks to aggressively without very clearly violating the Supreme Court's precedent. That's been very frustrating to Conservatives, and they are sort of looking for more flexibility, and I think that's what this case Dobbs is targeting. They're saying, well, viability shouldn't be the standard anymore. It's too firm of a line for them. They've been loving the gray area created by certain aspects of the law, like the undue burden concept, what's an undue burden? They love toying with that.

0:31:26.1 Cody Johnston: What's a due burden?

0:31:28.9 Katy Stoll: Actually I jotted that down. I know that you already mentioned that there isn't really a definition of what an undue burden is, but there are a variety... Can you give us some examples of things?

0:31:38.8 Rhiannon: Yeah, so in Whole Women's Health, for example, Justice Stephen Breyer wrote the majority there, and that was the Texas law that required facilities to be surgical centers and require doctors providers to have admitting privileges at hospitals. Justice Breyer, when striking down that law, he said it was an undue burden, and he used the term substantial obstacle, right? Which is like, okay, that's not even much more clear, but...

0:32:07.0 Katy Stoll: Right.

0:32:07.3 Cody Johnston: Right, right.

0:32:07.7 Rhiannon: In terms of wording but something that poses a substantial obstacle to a pregnant person's access to abortion is at least in that case, was considered an undue burden...

0:32:19.0 Katy Stoll: Okay.

0:32:19.1 Rhiannon: And therefore unconstitutional.

0:32:20.8 Peter: There's also like in Casey itself, spousal notification requirements were struck down saying that's an undue burden. Although it upheld parental notification for minors.

0:32:32.8 Katy Stoll: Okay.

0:32:33.1 Peter: So who the fuck knows? The idea though is that, according to the court, the state has some interest in regulating abortion for either purposes of protecting the woman's health or the fetus, and that's being weighed against the rights of the woman, and that's what they're talking about when they say undue burden, a due is when the state's interests outweigh the woman's ostensibly.

0:33:00.0 Cody Johnston: Of course, yeah.

0:33:00.9 Katy Stoll: Oh, I would say there's absolutely zero examples of that, the states...

0:33:04.9 Peter: That sounds right to me, but Texas disagrees.

0:33:07.9 Rhiannon: Absolutely.

0:33:08.4 Peter: Well, you know how concerned they are with women's health it's so important to them.

0:33:13.0 Katy Stoll: So important.

0:33:14.2 Rhiannon: I feel so protected by my state representatives. [chuckle] Something we talk about on the podcast a lot is like, what is a Constitutional right without a remedy, if the right is being taken from you, or what is a constitutional right? What does it mean if you don't have meaningful material access to that right, right? And so just kind of... It's just an idea that obviously conservatives have been toying with in the abortion context, so far, they can say that abortion is constitutional, they're not overturning Roe, but they have already been chipping away, like Peter said, with this sort of method of death by a thousand cuts in a lot of areas in the country, especially in the South, especially for poor women, there isn't a strong abortion right at all today. And so, just looking forward to Dobbs it's hard to know what's gonna happen next.

0:34:20.5 Peter: Yeah, it's one of those things where like, okay, let's say they did uphold Roe, there's one clinic in Mississippi. So do you really have a constitutional right, what's the value...

0:34:30.6 Rhiannon: Exactly.

0:34:30.8 Peter: Of that right to someone in Mississippi seeking an abortion. Rights, rights are not in our view conceptual, it's easy to say, "Oh, you have a right to do this," but if you have no material access to it, it's meaningless right. Conservatives don't view rights like that, they view them as more almost like ethereal.

0:34:49.8 Cody Johnston: Yeah, there's not a word they can use to mean like many, many different things actually.

0:34:57.0 Katy Stoll: Is there anything we could do about this? Sit back and watch. Will we be seeing much information, so this is... We're still ways off from this...

0:35:08.1 Cody Johnston: Well, the decision is supposed to be mid-2022.

0:35:11.6 Peter: No 2020.

0:35:13.1 Katy Stoll: But they start... 2020.

0:35:14.7 Peter: Oh sorry 2022. Yeah, so for a second, I thought it was 2019 my apologies.

0:35:19.0 Cody Johnston: If only.

0:35:19.1 Katy Stoll: But they start hearing it this fall, correct?

0:35:23.6 Peter: Yeah, there will likely be arguments, I think they're scheduled for October, and then it will take the entire term for them to hash it out 'cause that's how it always goes with the big cases, and it will almost certainly drop next June.

0:35:36.9 Cody Johnston: Is there way to sort of see all this camping out in DC, is that...

0:35:42.4 Katy Stoll: Oh yeah. Where do we line up?

0:35:44.9 Peter: Yeah, Rhi how do you do it?

0:35:47.1 Rhiannon: Yeah, so I learned the hard way that when you were trying to watch oral argument at the Supreme Court, yes, you can wait in a line physically outside and for big cases, cases that are in the news, cases that are important, like this one... The line starts at least the day before, and you just kinda camp out and hope that you are far enough ahead in the line that you make it in before the court fills up.

0:36:16.5 Katy Stoll: Maybe we should plan another crossover pod where we all go there. Camp out, I'm joking but I'm also not.

0:36:25.1 Peter: I will never put myself in a situation where I am waiting to hear like Brett Kavanaugh talk about abortion I just can't bring myself to hear that.

0:36:32.8 Katy Stoll: Yeah, it's too fucked up, right. That feeds his ego.

0:36:36.2 Peter: It does, it really does.

0:36:38.6 Rhiannon: Having been in that monstrous building for one oral argument, I can say I do not recommend so...

0:36:47.0 Katy Stoll: Alright, so that's a no from you guys I'll take this to this by myself.

0:36:55.0 Peter: I think in terms of what you can actually do, we don't try to pretend that we're organizers, and I think organizing is really the answer from our perspective, we're like Supreme Court people, what do you do in terms of the court? You wait for some of them to die or be replaced or someone to battle the court that's it, right?

0:37:14.1 Rhiannon: Yeah. Exactly, yeah.

0:37:17.0 Peter: I think that the only real silver lining of something like this is I imagine that it will lead to organizing that hopefully in the future, could lead us to a situation where access in states like Mississippi actually looks more like materially better than it is right now.

0:37:34.5 Cody Johnston: Right there is more than one facility in the future for things like that, yeah.

0:37:37.2 Katy Stoll: It's virtually banned already, and the fact that people don't have access all of these bills that we've talked about with the admitting... Well I can't think of the phrasing admittance privileges.

0:37:48.2 Peter: Admitting privileges, yeah.

0:37:49.2 Rhiannon: Yes yes.

0:37:49.5 Katy Stoll: Admitting privileges and all of that is just basically saying, You don't... We're not giving you an opportunity to even... And this is a tangent, but when I start to think about that and think about centers being shut down it's even more pervasive and just access to abortions, it's access to sexual and reproductive health support.

0:38:08.8 Peter: Of course.

0:38:09.6 Rhiannon: That's exactly right.

0:38:11.4 Katy Stoll: Mike Pence shut down all the Planned Parenthoods in... Where was it, where was he the governor of Coady Indiana.

0:38:19.3 Peter: God's country.

0:38:19.8 Katy Stoll: Indiana and that led to... Yes, of God's country, and that led to a huge HIV outbreak. Anyway tangent...

0:38:31.5 Peter: One of the sort of things that's been floating around in reproductive rights circles for years now is, as they prepare themselves for the end of Roe, which they've been sort of gearing themselves up for for a long time. A lot of people have sort of floated the idea that maybe it will... Maybe the situation is so bad, that this will make it better because there will be organizing and funds, etcetera. I don't think I would go that far. I don't wanna... I don't know how you weigh the human suffering on one hand against the increase in funds on the other. I don't think that's something you can really do, but I think it speaks to how far we've fallen, how effective the legislation has been, that that conversation can even be had, where you're thinking, well maybe the end of Roe is sort of what we need here to turn the corner. Once you're having that conversation, it's like you've been losing for so long.

0:39:29.3 Katy Stoll: It's like we've hit rock bottom, so there's nowhere to go but up?

0:39:32.3 Cody Johnston: Yeah. You've heard a lot of that argument for Trump stuff in 2016, let's just do it because the reaction to him will be really good, citation needed on that but...

0:39:45.9 Katy Stoll: And that worked out well for everybody.

0:39:48.1 Peter: That's why things have been going so great.

0:39:50.0 Cody Johnston: Yeah, we did it. Yeah.

0:39:51.2 Peter: We really turned this ship around.

0:39:51.6 Katy Stoll: Yup. Healing.

0:39:52.6 Rhiannon: Yeah. I'm not a proponent of that accelerationist argument for exactly those reasons. But I just think it does emphasize, I think how good the conservative political movement and the conservative legal movement have been in the post-Civil Rights era, at sort of consolidating around reacting to the expansion of rights and particularly rights of racial minorities, and then definitely, definitely around Roe and attacking Roe. It's just such a lightning rod issue and their publicity around it, the way they talk about it, the rhetoric and the dialogue, the culture war stuff that has... It's created these so-called single issue voters. It's just really... You can't... I don't... I'm losing the words.

0:40:50.7 Katy Stoll: That's fine.

0:40:52.0 Rhiannon: It's so clear that they have done such a good job at making it an issue that people care about and they've made it seem so, so bad and they've normalized that abortion, reproductive rights, that those are shameful things, that that's what dirty feminists want, etcetera, etcetera. And I don't think, something we talk about on the podcast is the way that the left and liberals really, especially liberal lawyers and liberal justices on the Supreme Court, have really failed to respond to that adequately. So yeah.

0:41:34.8 Peter: Yeah, one of the most interesting things is that they've had this two-pronged attack where you have this cultural side that's just anti-choice, and then you have this legal side that is about the liberal abuse of the constitution's original meaning. And they've just managed to marry these concepts together, despite them having no real natural correlation. And to the point where you have people like Samuel Alito and Clarence Thomas who sort of just believe both, and they're driven forward by both, this sort of singular ideology that comes from these two very different concepts.

0:42:12.9 Cody Johnston: Yeah, they're very good at that, pairing that culture and moving that forward, even with simple things like...

0:42:18.6 Katy Stoll: And so bad at doing the opposite, or doing it too.

0:42:25.7 Cody Johnston: I'm kind of curious, is it, for it to like, specifically liberal lawyers, sort of not being able to sort of combat that, do you get a sense, it's just not realizing it until recently that that's what's going on or is it they don't have the infrastructure or they... I always go back to this one line from The Good Place, basically, they have a good committee and it's in Heaven and they're trying to get something done, and they're like, "Well, just do it, just help us." And I forget who says it, but they're like, "Well, we're the good guys, we can't just do stuff."

0:42:58.3 Katy Stoll: Right. [chuckle]

0:43:00.6 Cody Johnston: And it really sticks with me all the time in cases like this, is it sort of a combination of those things where they don't wanna engage in that kind of behavior?

0:43:09.6 Peter: I think it is a combination. I think it is... So far, there is a lack of infrastructure on the left in legal circles, they have absolutely nothing compared to The Federalist Society, everything you have on the right. I also think there's an engagement with the conservative argument as if it's in good faith, that ends up with just a hedge, and you see the same thing in the cultural arguments, where the liberal position ends up being something like safe and rare rather than just like, "No, well, we should increase access, etcetera, etcetera." You're sort of granting the premise that the conservatives grant you, that the conservatives are proffering. And the same thing happens on the legal side, where liberals have basically said, "Well, look, regionalism, it has some merit. We should adhere to it a little bit, but not all the way, you're going too far." You're granting them that the premise that they're operating from is correct, but you're just saying I wouldn't take that premise quite as far as you do, and obviously that's a losing argument. You're always gonna look a little weaker. When that's what you do.

0:44:13.8 Cody Johnston: Right. And then the line shifts, it goes closer and closer and closer. So the next time you have that argument like, okay, still, it's okay a little bit, but not that much. And then those limits keep changing.

0:44:25.4 Peter: Yeah, and I think this is a great example of that sort of Overton window shift, where all of it... They've been hacking away at abortion and all of a sudden it's like, "Well, all that's left is Roe v. Wade."

0:44:33.6 Rhiannon: Yeah.

0:44:34.3 Cody Johnston: Right. And now they're... Calling all these heartbeat bills. You do that enough, and then you have people sort of like, again, like you're saying trying to hedge hedge and stuff, and like, "Well, okay, okay, that's close to it," 'cause it's also like a very emotional terminology to rile up on that.

0:44:58.2 Katy Stoll: We have to wrap this up soon, but I have one more Supreme Court question that is a not abortion related.

0:45:05.3 Peter: What is it?

0:45:05.5 Katy Stoll: And it is about Stephen Breyer, who is 82 years old. Should he retire now and save us...

0:45:14.8 Peter: Fuck, yeah.

0:45:16.6 Katy Stoll: Yeah, okay. I figured that would...

0:45:17.6 Rhiannon: Yes, get the fuck off the court, Stephen.

0:45:19.6 Katy Stoll: Are you listening Stephen?

0:45:21.6 Cody Johnston: It's wild that in 2021, this is still like a debate, being had, and day one, he wasn't like, "Okay, it's time." Like what the fuck.

0:45:33.9 Rhiannon: Right. I mean we're just talking about the inability of liberals to effectively sort of respond to what conservatives have done around abortion, and it's another example, how the lesson was not learned from Ruth Bader Ginsburg not retiring in 2013.

0:45:53.6 Katy Stoll: Oh! What a gut punch.

0:45:56.2 Rhiannon: Right, how they are still in denial about this, Stephen Breyer is out in public these days over just the past few weeks talking about how we shouldn't be politicizing the court so much, and they all get along and they're good friends and you know essentially saying like, "I'm here, I'm good. I'm not going anywhere," right? It's disgusting.

0:46:18.0 Peter: I will say, a thought I keep having recently is Stephen Breyer's been very outspoken recently, in a way, and the things he's saying are garbage and make people think that he's gonna stay on the court, but I will say that it's very unusual for him to be this outspoken. He says he's got a book coming out in September, and that makes me think maybe he is retiring.

0:46:37.8 Rhiannon: Please let him retire.

0:46:38.6 Cody Johnston: That's interesting.

0:46:42.5 Peter: Maybe he is sort of setting the stage and I don't know, it's really hard to gauge, but I will say he's acting weird and that makes me think either one of two things is happening, he's a... One, he's retiring or two, he's very defensive and lashing out of there for one.

[overlapping conversation]

0:46:56.0 Cody Johnston: Right, right. No leave me alone I'm staying Forever.

0:46:57.1 Katy Stoll: I wanna make a joke about being old and deteriorating but come on.

0:47:00.2 Peter: Both of them are...

0:47:02.4 Cody Johnston: It's just wild. It's like the only thing Democrats love more than losing is not learning lessons from like a year ago.

0:47:09.2 Katy Stoll: Oh yeah, we love that.

0:47:12.4 Peter: Closely-related phenomena.

0:47:14.1 Rhiannon: Yeah classic, classic democrat [0:47:17.1] ____.

0:47:17.5 Peter: We're like 95% sure at this point that Stephen is not listening to 5-4. So fingers crossed for your show.

0:47:23.5 Katy Stoll: He listens, for sure.

0:47:25.9 Cody Johnston: Yeah, we'll send him merch.

0:47:27.3 Katy Stoll: Well look, we're the only news podcast out there, so I'm not sure where else he's getting his information if not from this show.

0:47:34.3 Rhiannon: Yeah, that sounds right. Yeah, you're right.

0:47:35.4 Katy Stoll: So I have to assume that he does listen.

0:47:36.6 Cody Johnston: All of the citations in his book are gonna be just this show.

0:47:39.3 Katy Stoll: My prediction is he retires Friday, maybe Monday, maybe he takes the weekend as this will drop on Friday, but...

0:47:46.6 Rhiannon: You listening you little worm?

0:47:48.3 Cody Johnston: Yeah you fucking idiot.

0:47:51.2 Katy Stoll: Watch out, or else Rhi is gonna give you a very unflattering descriptive like she did for Alito.

0:47:57.3 Rhiannon: Yeah, uh-huh.

0:47:57.7 Peter: I've been trying to tell our Zoomer fans that he looks to me a lot like Earthworm Jim, and they don't know who that is. But I promise you, he looks a little bit like Earthworm Jim.

0:48:09.5 Katy Stoll: Boogerling!

0:48:15.0 Peter: He does kind of Look like Earthworm Jim.

0:48:15.1 Katy Stoll: Yeah, he sure does.

0:48:15.0 Cody Johnston: Yeah any Zoomers listening go play Earthworm Jim. Have a frustrating time.

0:48:21.3 Katy Stoll: Alright, we've gotta let these kids get out of here. Thank you again so much for joining us. This has been very fun for such a dark subject.

0:48:30.3 Peter: Any time.

0:48:31.5 Rhiannon: Yeah.

0:48:32.2 Katy Stoll: Taking you up on that, for sure. And that's it for us this week, guys, thanks for listening. And remember that we love you very much.

0:48:42.0 Cody Johnston: Very much.


0:48:45.4 Peter: Alright guys, thank you for listening to this special episode. If you liked it and you wanna hear more, Even More News, you can find them wherever you get your podcasts, just do your basic search, I'm sure you'll be able to figure it out. Next week, we are back with classic 5-4 with the case Smith v. Maryland, we're gonna be talking about whether the government can eavesdrop on your shit on a whim without a warrant, and a quick reminder that we've got a new summer Merch drop, special feature, "Stephen Breyer Retire Bitch," merchandise with or without the bitch, because we understand that some of you have regular people lives to live and don't wanna offend everyone who sees your shirt. We are also gonna sunset some of our Amy Coney Barrett designs. Last call, baby, get it while you can at fivefourpod.com. We'll see you next week.

0:49:39.0 S5: Five to Four is presented by Prolog Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Everline. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.