SB8: Whole Woman’s Health v. Jackson

In this emergency episode, the hosts discuss Whole Woman’s Health v. Jackson, the case where the Supreme Court declined to stay SB8. SB8 is the monstrous Texas law that allows anyone to sue anyone who even intends to help someone get an abortion after 6 weeks of pregnancy. The effect is that while very early term abortions are still legal in Texas, private individuals have been deputized to bounty hunt abortion providers, activists, and even Uber drivers.

This is a tough way to start the day...

0:00:00.5 Michael: This is a tough way to start the day.

0:00:03.4 Peter: Yep.

0:00:10.1 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:18.6 Peter: Okay. Jesus Christ. Welcome to our emergency episode on Whole Woman's Health v. Jackson, the controversial abortion case that dropped at midnight a couple of nights ago. I don't have the energy for a cute little intro, so let's get right into it.

0:00:38.4 Rhiannon: Let's go. I got some shit to say. I got some people to threaten physically.

0:00:49.3 Peter: Texas passed a creative little law, SB8. That law makes abortion after six weeks into a pregnancy illegal, and it's unique in two ways. First, it allows private citizens, not government officials, to sue anyone who performs or helps facilitate an abortion, effectively creating a bounty system where anyone can sue someone for facilitating an abortion and win money. Second, it creates an exception. The woman who gets the abortion herself cannot be sued, and by the way, we're going to be a little bit gender essentialist, saying women consistently, because that's what the law says. I blame Texas.

0:01:36.8 Peter: The law is written very broadly, so literally anyone can sue and the people who can be sued include anyone who helps pay for the abortion, helps the person get to the facility, let your imagination run wild in terms of who can be sued. And of course, it would hold abortion doctors themselves liable, which has resulted in nearly every abortion provider in Texas halting abortion services after six weeks.

0:02:00.5 Peter: So back to those two unique aspects of the law, giving private citizens the right to sue instead of the state and holding everyone but the person getting the abortion liable. You may ask what the purpose of those provisions is. The purpose is to create a bit of a procedural loophole, because it's very unclear under the law who can sue and who can be sued. When challenging a law for constitutionality, generally the person whose rights are violated would sue the state official who enforces the law, but here, state officials are not enforcing the law, private citizens are enforcing the law, and moreover, the person whose constitutional rights are at issue is the person who's getting the abortion, but if you recall, they can't actually be sued under the law, it's only doctors and anyone else who was helping aid and abet the abortion.

0:02:52.2 Peter: All of this is designed very purposefully to create procedural confusion, because the thing is, Roe v. Wade creates a constitutional right to abortion, and Planned Parenthood v. Casey makes it clear that you can't restrict abortions prior to about the 23-week mark, so this Texas law very clearly violates Roe and Casey, no question about it. What they're trying to do, again, very purposefully, is create enough of a procedural mess that the court has some plausible deniability if they want to uphold the law.

0:03:27.2 Peter: So Whole Women's Health files for a stay of the law...

0:03:30.8 Rhiannon: And just to jump in here with a little bit of context, Whole Women's Health is an abortion clinic, an abortion provider in Texas. They, along with some other advocacy organizations and abortion providers, filed at the Supreme Court.

0:03:44.0 Peter: In other words, they said that the implementation of the law should be halted until the Court makes a final determination about the constitutionality of the law, and seeing as the law is very plainly unconstitutional, maybe the Court should stop it for the time being. But the Court said, No, thank you, in an unsigned 5-4 decision that dropped in the middle of the night, the Court allows the law to stand at least for now.

0:04:12.1 Michael: One paragraph, right?

0:04:14.2 Peter: It's about a page long.

0:04:16.8 Michael: Supreme Court page.

0:04:17.7 Peter: Yeah, it's not a real page.

0:04:17.7 Rhiannon: Those are wide margins.

0:04:20.0 Michael: It's like one column.

0:04:22.5 Rhiannon: Right, right, yeah.

0:04:26.4 Peter: The length of a letter to the editor.

0:04:26.5 Rhiannon: Yes.

0:04:26.5 Peter: And about the same intellectual level as well.

0:04:29.2 Michael: I was about to say, it had the legal acumen of a letter to the editor.

0:04:34.4 Peter: So they give a handful of sort of thinly veiled explanations for their decision. They say that the law presents complex and novel procedural questions, they imply that the plaintiffs might not have standing to sue the state here, because again, it's private citizens, not the state who are empowered by the law to sue anyone who facilitates abortions. Like I said, the entire purpose of that part of the law was to give the Court plausible deniability, and this is them using that to their advantage.

0:05:02.5 Peter: The Court also said that it's not clear whether they can issue an injunction against state judges on issues of state law, we don't have to get into that, but just know that the plaintiffs actually addressed it very clearly and extensively in their briefs and cited of numerous cases, making it clear that the Court can in fact issue such an injunction, and the opinion doesn't address those cases or arguments at all.

0:05:23.5 Peter: Anyway, that's basically it. That's the entire decision. I have one basic thought about the reasoning of the decision, and it's that it rests on an almost incomprehensible level of credulousness. The entire law is designed from the ground up to very creatively fuck with your constitutionally protected right to abortion. That's the whole point of the law, everyone involved knows that, every lawyer, every judge, so to allow it to stand is to say, hey, if you come up with a clearly and intentionally unconstitutional law, but do it with some creative procedural maneuvering, we will let it stand. We will play and pretend that our hands are tied.

0:06:03.1 Peter: There are real pregnant women identified in the briefs in this case who are seeking abortions and now cannot get them, and the Court is saying like, whoops, sorry, your real rights are secondary to the procedural trickery of the Texas legislature. It's been said, but if someone tried the same exact shit with gun rights, passing the same exact law verbatim with gun rights or some other right that conservatives actually care about, the Court would see right through it and toss that lie out in a fucking heartbeat, dude.

0:06:31.5 Peter: It cannot be that you can purposefully violate constitutional rights if you just do it creatively enough. It just can't be. That's not a tenable holding, it's not a tenable reasoning.

0:06:42.7 Michael: Peter is correct that this is sort of creative and novel in one sense, but in another sense, it's very old hat, and that is this sort of structure of reactionary forces in the government, either tacitly enlisting or explicitly empowering non-government actors in the reactionary project goes way back.

0:07:08.0 Michael: And so there's an infamous case from, I think, 1876 called US v. Cruikshank, which was after the Civil War and related to basically lynchings. And there were laws on the books at the time saying that this was a violation of the Fourteenth Amendment, and Cruikshank said, hey, like private actors, like lynch mobs and the Klan and stuff, they can't violate your civil rights, civil rights create impositions on the federal government.

0:07:37.6 Michael: Cruikshank has been overruled in a lot of different ways. It set a lot of different things, some of it remains good law, a lot of it does not, but the main point, and I don't want to veer too far afield from centering reproductive health, but the main point is that this sort of public-private partnership between reactionary forces has been going on for a long time. It's been going on in abortion with the use of churches that are basically extensions of the Republican Party for decades, and it's been going on with civil rights, with the Proud Boys, with paramilitary groups forever. It's happening right now at the federal level with the January 6th insurrectionists and the way Congressional Republicans run cover for them.

0:08:27.3 Michael: So this is something that I don't think we should consider necessarily a one-off thing, not just in terms of other states that are looking at creating similar abortion-related bills, but if this bill itself is allowed to stand, I imagine other issues will become similarly enforced, like Texas will have an anti-voter fraud bill that puts $10,000 bounties on anybody who might be engaged in voter fraud, and you'll see Proud Boys with guns and cameras at polling stations taking photos of every Black and Brown person who tries to vote in an effort to intimidating them and suing them and accusing them of voting illegally, the same shit.

0:09:13.1 Michael: We're nowhere near the bottom of what the Republican Party is capable of or what they will do, which is why the response right now needs to be robust, right, you can't just shrug your shoulders and be like, well, let's wait for them to work this one out, let's wait for the Supreme Court to rule on the merits or whatever. This needs to be taken very seriously at every level of left organizing.

0:09:39.9 Rhiannon: Yeah, I think that's right. I think it is such a depraved, grotesque vision of government to see in real time government institutions, political institutions, like state legislatures, like the United States Supreme Court here, carving out sections of the Constitution explicitly to say, this isn't a public issue, this is a private issue, and to give that private enforcement mechanism to individual private citizens. Like you said, Michael, this is not the bottom, right, if they can do this about abortion, then there are myriad other rights that they would like to limit, that they would like to violate, that they are saying, well, if you make it a private issue, if this is not the government doing the enforcement, then it's fine, and the Constitution doesn't apply. It's incredibly sick.

0:10:37.3 Michael: Yeah, something I've seen a lot online, and Peter mentioned, the idea of progressives enlisting this sort of structure for gun rights or vaccine mandates or whatever, right, like when I see it, a lot of it's sort of tongue in cheek, or can you imagine, like the Supreme Court would never allow this to stand, but I think it's worth explicitly noting that this is a structure that's fundamentally incompatible with leftism, right, because this is very atomizing Left goals are about building sort of a community and a government, and this is literally disinterring functions. It's like stand your ground, it's privatizing enforcement mechanisms of the federal government, or state governments or whatever, it's fundamentally conservative, it's fundamentally reactionary, turning citizens on one another like this.

0:11:30.9 Rhiannon: That's right. And again, over the course of American history, we've seen this and it's happening again in this situation, that it's compounding the oppression of people who are already struggling. This disproportionately impacts and burdens people who already live in poverty, and once again, sort of the culture war, the changing of the rules of democracy, the changing of the Constitution and what it means is happening again on women's bodies, on pregnant people's bodies.

0:12:00.8 Rhiannon: I want to point out that we're talking about the way in which this law privatizes the oppression of women and pregnant people, and it does by creating a cause of action for individual citizens to sue anyone who facilitates an abortion, but don't lose the plot here, this is still a state law that's creating this. This is still government oppression, and the idea that this sort of procedural novelty makes this something other than government oppression, which is the idea that the Supreme Court is entertaining, is ridiculous.

0:12:29.1 Michael: That's right, that's right.

0:12:30.9 Rhiannon: Yeah, really good point. Organizations, especially reproductive rights, reproductive justice organizations, have been sounding the alarm in Texas and in other states for years, for decades, and people who understand and could foresee the Republican project of remaking the Supreme Court again on the battleground specifically of Roe v. Wade, could see that this was coming also. But I think by and large, maybe publicly, 50 years of Roe v. Wade not being overturned, maybe sort of lulled people to some extent into believing that the rule of law or whatever protects us, tat conservatives on the Supreme Court hadn't gone so far as to overturn Roe yet, and so why would they now.

0:13:17.6 Rhiannon: But I think, number one, that sort of misunderstands very seriously the Republican project of remaking the Supreme Court, and I think it misunderstands very seriously what state legislatures are doing all of the time, and with signals from this new Supreme Court. So just a little bit on the context in which this law was passed in Texas. Set aside with me for two seconds this abortion law. There were 666... Yes, 666... 666 laws literally passed in the legislative sessions this year in Texas, including a law that makes it harder for accused people to get out of jail without paying money, an anti-defund the police bill, which would decrease any municipality's state funding by the same amount that they decrease their police department budget, a law criminalizing homelessness by criminalizing camping, a massive funding bill that pumps $1 billion into further militarizing our border with Mexico, a law allowing anyone 21 and over to carry a gun without a license, to name a few.

0:14:28.6 Rhiannon: Right, in addition to this abortion bill, so when will we be unlulled, is my question, right? And what the fuck is the Supreme Court doing in response? They're telling me to my face that this abortion law is well, gee, it's just a brand new question, it's a real brain-buster, we don't know the law. Does it even know the law on this? Can anyone figure this out? So here's how I know the Supreme Court is political to its rotten fucking core, because most people who believe in the Supreme Court's special utility and the principled Supreme Court and its sort of mythological platonic ideal of the objective Supreme Court, those people, they didn't see this coming. If you thought the Supreme Court was apolitical, then you could not predict this, and so it sucks that that actually describes most of the top legal commentators in this country, right, the people on the ground knew it.

0:15:25.1 Peter: And by the way, a couple of years ago, there were articles being published when Gorsuch and Kavanaugh were appointed, being like, don't worry, Roe v. Wade is fine.

0:15:33.4 Rhiannon: Of course, tons of them.

0:15:36.6 Peter: Those articles were real.

0:15:38.8 Michael: I like to flatter myself into thinking that I'm pretty smart and have good insight, but the idea that this was on the table, you don't have to be that bright, you don't have to be that insightful. Like when we were talking about this last night, prepping for it, the analogy I used that I want to bring up again is, it's like watching a fucking massive thunderhead gathering on the horizon and being like, well, it's not raining now, so why are you getting your umbrella? And it's like the temperature's dropping, the pressure is changing, you're seeing the lightning, it's slowly darkening and you're like, "I don't know. It's been dry for days." And then once it starts raining being like, "Holy shit. I can't believe it. How did you know? How did you know to get an umbrella?"

0:16:26.5 Peter: I like that this metaphor is also an extremely literal explanation of what's happening with climate change in [0:16:31.6] ____, by the way.

0:16:34.7 Rhiannon: Yes, yes, it applies across the board, right? And back to this bill originating in a uniquely Texas context, Texas passes bills that are like a prophecy into the future. Texas is a battleground where conservative fanatics enact policies that are then copied across the country. So other states, make no mistake, other states, because of this Supreme Court ruling, will be copying this model, as well as all of the other horrific shit Texas passes here, and they'll be doing it as soon as possible.

0:17:06.8 Rhiannon: Florida, the president of the Florida State Senate already announced yesterday that they were working on a similar statute. The legislature in Georgia goes into session very soon, they are working on a very similar statute, and that's because of the Supreme Court's decision here. It's a green light and now it spreads, and it just has me thinking about their vitriol for equal rights, their zeal for oppression, like imagine any liberal state being that rabidly dedicated to protecting people's rights, right, to furthering an unapologetic progressive agenda. Think about the last time you heard a conservative say something pathological about the Second Amendment, right? The Second Amendment matters, right? We can't forget the Second Amendment, the Second Amendment is there.

0:17:54.8 Michael: The tree of liberty needs to be refreshed from time to time with the blood of patriots or whatever.

0:18:00.9 Rhiannon: Yes, yes. Have you ever in your life heard someone say the Fourteenth Amendment matters, like say it with their chest the same way Second Amendment people fucking freak out, right? Say the Eighth Amendment matters. It's just a recognition here, maybe a lot of people have been asleep, but it's a recognition here of, again, a decades-long project, they are getting what they want because they have organized and built power around these issues.

0:18:28.4 Peter: And there are armies of conservative lawyers designing these laws with this sort of stuff in mind, and they communicate with state legislatures, etcetera, and they know that Texas is a great place to start, and that's why you see it emanating from Texas so often.

0:18:42.3 Michael: One of the reasons it's a great place to start, too, is not just the demographics of the state and the gerrymandering and all the things that entrench the government, but also in the courts. The district courts, the federal district court, the state courts, the circuit court, the fifth circuit, they're all dominated, dominated by conservative freaks.

0:19:04.5 Rhiannon: Yeah. Notoriously conservative.

0:19:06.7 Michael: Any liberal law you want to challenge, you know, you filing with the Northern District of Texas, you get some Trump-appointed freak who will strike it down, and then the Fifth Circuit Court of Appeals will uphold them.

0:19:17.5 Rhiannon: That's right. Turning quickly to who this decision really, really affects on the ground, material impact, I think it's important to say rich women will always have abortion access, they will always have the right to choose, rich pregnant women will always have more bodily autonomy than poor pregnant people. This law is horrific and it applies to everyone equally, but the material impact, the burden and the harm of this law, are undeniably disproportionate. So in order for a pregnant person in Texas to get an abortion right now after six weeks, they need to have the money to travel to another state, have the time, time off of work, time away from family, time away from kids, whatever it is, to travel to another state, they need to have the physical ability to get to another state, whether people might have disabilities or otherwise, but also sort of be physically unable to leave because they might be in abusive relationships.

0:20:13.6 Rhiannon: If you live in far south Texas in the Rio Grande Valley right now, you have to pass through border patrol checkpoints if you are traveling north or leaving the state. People who don't have documents showing their existence is legal in the US, they cannot make this trip, there are not clinics there doing abortions after six weeks. Just talking about who this law burdens disproportionately, there are unaccompanied minors in ICE detention facilities right now in Texas who are pregnant, who may have gotten pregnant on their trip, on their journey into the United States and do not want to be pregnant. They are 15 and 16 years old, and this is who this law burdens, they don't have options anymore. Not to mention incarcerated, pregnant people.

0:21:01.2 Michael: Talking about incarcerated people being pregnant, with incarcerated pregnancies, rape is an issue.

0:21:06.9 Rhiannon: Oh, sure, yeah.

0:21:08.2 Michael: The law doesn't have any exceptions for rape.

0:21:10.2 Rhiannon: Right, it's maddening, and it is a law targeted at the impoverished to exacerbate and to perpetuate poverty.

0:21:18.3 Michael: Exceptions for rape and incest in abortion restrictions is like... That has something like 85%, 90% popularity in this country. The whole law is insane, but I think it just goes to how draconian, how toxic this bill is.

0:21:32.6 Peter: So I think we should talk a bit about the politics of this in the most literal sense, and that means talking about the Democrats, what they have done and not done, and I think notably, other than a few sort of quick statements to the press, Democrats haven't really done shit.

0:22:00.0 Michael: Yeah, that's right.

0:22:01.5 Peter: There has been a little bit of chatter about a bill that would codify the right to an abortion in federal law. It's been stated that this doesn't have enough votes in the Senate, and so I think there's hesitation on that front, but what's important is that the Democrats have been caught flat-footed for absolutely no reason at all, and it's just embarrassing and frustrating. This should have been codified 25 years ago, not right fucking now as the right's getting yanked out from under us.

0:22:33.5 Michael: And how did they not have a strategy, like a big strategy for when this happened, how was it when this law was passed in May, how were they not immediately like, this is going to be at the Supreme Court, and if it gets upheld, this is what we're going to do, but even then, like a week ago, some people were starting to be like, "Oh, holy shit, the Supreme Court could let this stand," slowly realizing the thunderhead is now overhead and a few drops of water are hitting their head and like, "Oh, shit. This could happen." How were they not like, "Let's have a plan, like, let's be ready for this."

0:23:10.5 Peter: And what's bizarre is Republican-controlled states have long had these trigger laws, which are laws that go into effect in the event that Roe v. Wade is overturned, which means that Republican state legislatures are more prepared for this than the National Democratic Party, fucking embarrassing. Rhi, what you said last night made me laugh, 'cause it's so obviously true. Why isn't Kamala on television right now?

0:23:33.6 Rhiannon: Yes. Why are we not getting a nationwide address from the Biden administration, right? Joe Biden should be on TV today, right. Kamala Harris should be on fucking TV.

0:23:45.8 Peter: It's like, "Dude, you did nominate a woman to be vice president."

0:23:49.0 Rhiannon: Right, right, right.

0:23:51.9 Peter: I don't think he did it for her charisma, based on what I've seen, so...

0:23:55.9 Michael: It's insane. If like a second grade teacher in Mississippi gets caught on camera saying like Joe Biden won the election, the entire Republican apparatus will be up in arms for weeks, weeks. Everyone on script, there will be changes at the state level in the education curriculum, that's how the Republican Party works. Here we are a party whose basis, like 65% women, whose cornerstone has been protecting reproductive rights for 50 years, and Roe v. Wade functionally does not exist, has been repealed right now. So when I say that, what I mean is Roe v. Wade is essentially the federal government's veto on states trying to restrict abortion, it's the federal government preventing states from restricting abortion access.

0:24:56.0 Michael: And right now, there is no federal backstop, Texas can restrict abortions very severely, and Roe v. Wade isn't there to stop them, and that means it's not there to stop any state for the time being. That federal constitutional right no longer exists in Texas at this moment. This is supposed to be a core fundamental issue for the Democratic Party, you control the House and the Senate and the White House, and there's nothing. There's nothing, right, right? Nancy Pelosi says they'll introduce a bill in two-and-a-half weeks when they get back from vacation. Are you fucking kidding me? Like the DSCC, the PAC in charge of ensuring that Democrats hold the Senate, they released some statement suggesting they were basically going to run on this, right?

0:25:44.7 Rhiannon: Next year.

0:25:46.9 Michael: Next year, right. Tina Smith, who's a good senator, who I like, from Minnesota, very popular, very good on a lot of issues, she had a tweet thread, this is how you're learning about Democratic Party thinking on this issue, is from tweet threads from backbench senators saying like, yeah, I support abolishing the filibuster, I support packing the Court, or unpacking the Court is now the cool thing to say since the Republicans already packed it, blah, blah, blah, whatever, but we don't have the votes for that right now. That is unacceptable. We're not a political punditry podcast, that's not like our lane, but I just think anybody who's telling Democrats that this is a next election cycle issue, this is a year from now issue, a fundraising issue, and not a right now governance issue needs to be fucking driven from Democratic politics.

0:26:35.3 Michael: For one thing, if you think you can run on this next election cycle and not do something now, just like skip the video game cut scene and get to the next fight or whatever, like that this is just kabuki.

0:26:51.5 Peter: Like, what's the plan? What are you actually running on?

0:26:52.8 Rhiannon: Right, right, right.

0:26:54.1 Peter: You're running on not liking it? What's the actual plan? What are you offering?

0:26:58.5 Michael: Right. It's insane. This is a fucking all hands on deck thing. This is pulling out all the stops. I'm sorry if your plan was just pocketbook issues, it was infrastructure and reconciliation and the big Covid stimulus and boost the economy a bunch and avoid cultural issues, and that plan is in shambles now, but you know what? Tough shit. You run the government.

0:27:23.4 Rhiannon: Yeah, step the fuck up.

0:27:24.9 Michael: This is an attack on your constituencies, like core issues, your basis core issues, and what's more, it strikes me as insane that the Democrats don't see this as a golden fucking opportunity. Like national Republicans are running from this, Mitch McConnell is not talking about this, Ted Cruz is not like crowing about this, they're not celebrating, because this bill is toxic, this is going to be extremely unpopular. Joe Biden should be on national TV hanging this around their neck. This is why they didn't give Merrick Garland a hearing, this is why they pushed Amy Coney Barrett through. This is why they jammed alleged rapist Brett Kavanagh through, over public outcry. Mitch McConnell did that, Susan Collins did that, all of them did that, so you could get decisions like this...

0:28:19.4 Rhiannon: So that this would happen, yeah.

0:28:21.1 Michael: So that this would happen. Hang this around their fucking neck, and yeah, I get that, like Joe Manchin and Kyrsten Sinema suck and all that. But so what? You do what you can. Whatever you can. There are, I think, two military bases in West Virginia...

0:28:36.9 Peter: Can we talk about Manchin for a split second? Because the day that this happened, he put out an op-ed expressing his opposition to the current state of the infrastructure bill.

0:28:46.6 Michael: Yes, yeah.

0:28:49.4 Peter: Are you fucking... Like the day that this happens, when a court functionally guts Roe v. Wade and a senator in your party comes out that day to announce that they're not even playing ball on infrastructure, it's time to ask yourself like, what use is this guy to you, and maybe stop tip-toeing around. Metaphorically speaking, his head should be out on a spike in front of Congress, metaphorically speaking. Metaphorically speaking, Chuck Schumer should be on television drinking wine out of his skull.

0:29:13.5 Michael: This op-ed, by the way, was in the Wall Street Journal, that's definitely where West Virginia politicians go to speak to their West Virginia constituents, the op-ed pages of the Wall Street Journal. No, you threaten them, you threaten them with whatever you can, right. You tell Manchin you're pulling the military bases, you tell Sinema that she is banned from Hot Topic for life, no more backpacks on the Capitol grounds.

0:29:38.3 Rhiannon: And get them in line, yeah.

0:29:39.4 Michael: She could be on her fucking knees, immediately.

0:29:44.9 Peter: Alright, we should talk a little bit about media response. Media response to this has been primarily the same sort of tepid bullshit you generally see in Supreme Court coverage generally. Noah Feldman, our friend over at Harvard Law, wrote a whole piece claiming that this case does not actually signal anything about the Court's intention vis-a-vis Roe v. Wade. What is his evidence? Well, he just quotes the Court itself and takes what they say at face value, so thanks, Noah, sharp analysis, professor at Harvard Law. All of his coverage of the Court is just regurgitating what the Court itself says, just the dimmest fucking bulb, just like a credulous little rube.

0:30:25.9 Peter: And Michael, you sort of hinted at this, but can we contrast the so-called liberal media with the conservative media ecosystem for a second? It's like the right has a new outrage every week. It's always something new, critical race theory, asks in schools, the right to eat horse medicine, they operate in cycles where there's laser focus from the top down on these issues week to week, from Fox News pundits to politicians, and radio hosts to just your everyday people on Facebook, that they can summon up the political energy for the most minuscule fictionalized bullshit on earth, and Democrats and the liberal media cannot summon up even a fraction of that energy for the cornerstone issue for the left over the past 50 years. It's unbelievable.

0:31:16.2 Michael: Yeah.

0:31:17.1 Peter: Alright, so we should talk about RBG, because there has been much discussion on Twitter and elsewhere about the extent to which Ruth Bader Ginsburg, by deciding not to retire under Obama, perhaps bears some blame for the current state of affairs. And many people have come to her defense, how dare you blame RBG, a proponent of reproductive freedom for this case. Blaming a woman at a time like this...

0:31:49.2 Rhiannon: How could you?

0:31:51.2 Peter: How dare you? A surprisingly large number of people have explicitly said shit like, "Don't blame RBG, blame people who voted for Jill Stein in 2016." And I'm sorry, it seems a little weird for me to try to lay the blame here on some schmuck whose voting decision had an extremely attenuated nominal impact on this situation, rather than a public servant who decided to stay on the bench at the age of 80 with pancreatic cancer, knowing that she was running the risk of being replaced by a conservative. Whether Ruth Bader Ginsburg bears some significant responsibility for this situation is not even a matter of opinion, it is a simple fact that she does.

0:32:29.5 Rhiannon: Period.

0:32:30.2 Peter: This was a 5-4 decision. If she retired in 2013, a liberal is sitting in her seat and this case goes the other way. That's some pretty simple math. I think more realistically, the case doesn't even rise to the Supreme Court.

0:32:41.7 Michael: Right, the law doesn't get passed. This is a law that exists because there's a 6-3 conservative super majority, and this is like a point we've made before when Amy Coney Barrett first got seated, but I think it's worth reiterating, is that the cases will get worse and the decisions will remain 5-4, the worst decisions will always be 5-4, as the cases just get more and more extreme, the laws get more and more extreme. This is just another example of that, right? If Breyer refuses to retire and the Senate changes hands next year and we end up somehow with a 7-2 Supreme Court, it will get even worse, and we will still get 5-4 decisions, and they will be horrific. Even more horrific. That's the nature of the game.

0:33:31.0 Peter: Yeah, absolutely. And if you want to make some grand statement about the abstract ways in which so many of us are responsible for this, like, whatever, fine, but to let off the hook the one person who could have easily and verifiably prevented it, fucking insane. Like hero worship bullshit.

0:33:51.0 Peter: So we touched on this earlier, but I think the question burning through everyone's mind is, did they just overturn Roe v. Wade? Much has been written and said on this topic, and some people say that they did in function overturn Roe. Others are more technical, insisting that this was a procedural decision that did not address the merits, and therefore Roe still stands. Our position is that it doesn't fucking matter, it doesn't matter. Whether you consider Roe to be overturned or not, is not the material question, the material question is whether there is a right to an abortion, that's what Roe means.

0:34:32.3 Peter: And right now in Texas, there is not, period. Everything else, all the talk about whether it is accurate and proper to say that Roe has been overturned, is just fluffy academic bullshit that is detached from the material question of your rights. When people talk about Roe v. Wade, what they're talking about is rights, not the actual fucking holding of a case, not like the technical existence of a holding in the academic ether, that shit does not matter, there is no right to an abortion in Texas, flat out.

0:35:04.0 Rhiannon: Right, that's exactly right. I just talked about all of the people who this disproportionately burdens. For them, for people who cannot travel out of state, for people who are disabled, for people who do not have legal status in the US and live in far south Texas and would have to pass border patrol checkpoints to get to an abortion provider, Roe v. Wade is non-existent right now. And so for me, I'm fine with saying it's overturned because it functionally is so.

0:35:31.2 Michael: Right, like the state of the law is the same, the practical reality is the same for people on the ground. That's another reason why I think this would be a great issue for plain-talking Joe Biden, right. I think it would be great for some Fox News person to be like, "Oh, has Roe really been overturned?" And he gets to call it malarkey and roll his eyes and be like, "Get real," and be Mr. Facts on the Ground.

0:35:56.7 Peter: Well, he's busy opening a jar, so...

0:36:01.3 Michael: Jill, give it here.

0:36:04.9 Peter: Alright, should we talk about next steps? The first thing we should talk about is what happens next. From a legal perspective, this is about an injunction, this is not a final ruling on this law. And so presumably the merits of the case will eventually wind into their way back to the Supreme Court, and the Court might at that point reject the law or not, and so we're at least a few months out from knowing anything on the final determination here, frankly. And that's really in my mind, all there is to say about the actual state of the case.

0:36:37.4 Rhiannon: There's also state lawsuits now proceeding in state courts the same plaintiffs and other people have brought challenging the law in Texas, but again, those are in state courts in Texas, and so there isn't a lot of expectation that our conservative fanatical courts are going to come out any differently.

0:36:53.9 Michael: There's already a challenge to Planned Parenthood v. Casey on the docket at the Supreme Court right now, and with laws like this, it's not hard to imagine that ultimately what happens is there's just a straight-up like is Roe v. Wade still the law of the land case, right, at the Supreme Court at the end of the day. In which case, I think the answer will be no. But regardless, like the fact that this hasn't been fully decided isn't a reason for complacency, I think that highlights just how high the stakes are with this, right? Like the stakes were already pretty high with what was already on the docket with the Supreme Court, with Dobbs v. Mississippi is the case that's already there, and with this now as well, it's just all the more reason why this is an all hands on deck moment for the party, right. The fight is now, it's happening now, whether or not Roe v. Wade currently exists and will exist as a federal right going forward, that's happening right now because of this case.

0:37:54.7 Rhiannon: Yeah, yeah, so turning to on the ground realities for abortion providers, advocacy groups that are working on reproductive justice in Texas right now, the legal situation is sort of a really confusing holding pattern at the moment. So I believe, but I don't have 100% confirmation, that as of this taping, no lawsuit has been filed yet under the new law.

0:38:20.0 Peter: Against someone for facilitating an abortion.

0:38:23.1 Rhiannon: No private citizen at this point has filed a lawsuit against somebody for aiding and abetting an abortion procedure, but the issue here in this case that went to the Supreme Court, one of the things is that the Supreme Court declined to intervene, in part because they're saying that the plaintiffs couldn't prove that they would be sued, right. And so abortion providers are abiding by the law right now out of fear that they will get sued, but in a legal context where the state is not the enforcer, and you're having to wait and see what private citizens will do, like everyone is just in limbo right now, everybody is just afraid, and so all of the clinics in Texas have stopped providing abortions for anybody who is more than six weeks pregnant, and what reproductive justice organizations in Texas right now are calling for is immediate donations and support to Texas abortion funds.

0:39:20.9 Rhiannon: Abortion funds, if you don't know, are organizations that connect pregnant people with financial resources to be able to pay for an abortion procedure, but at this point, they're also needing funds to cover people's travel and transportation costs, right. A hotel, a plane ticket to New Mexico in addition to the cost of the procedure in New Mexico, in Oklahoma. So for people who can, please, these organizations need monetary support right now to help people get abortions right now, there's an ActBlue site set up right now that if you donate to it, it'll split your donation equally among the 10 or 12 Texas abortion funds, so grab your phone, grab a pen,, FUNDS, and we'll have all these links in the show notes also, but Texas organizations are also telling people in other states to get connected now, if you are not already, with your own local advocacy groups, because these laws are coming to your state next, especially if you live in a Republican-controlled state, obviously.

0:40:35.2 Rhiannon: There are groups on the ground where you live right now who are organizing to prevent these statutes from passing and you can help, so get connected. A few other just immediate next steps that could be taken. I think the group behind it is Texas Right to Life, they set up this monstrous wretched public tip line to call in and report anybody who is aiding and abetting abortion, and abortion advocates and reproductive justice organizations have organized, basically flooding the tip line with fake tips, so that they are overwhelmed and...

0:41:11.5 Peter: Not fake, just over-zealous, perhaps. We would never endorse fake tips.

0:41:19.0 Rhiannon: Very long and detailed...

0:41:21.1 Peter: Creative use of the tip line is what we advocate for.

0:41:24.9 Rhiannon: That's right. Elie Mystal, a writer at The Nation, who has been covering the Supreme Court for a long time, doing really good analysis of Supreme Court decisions and Supreme Court politics, was on Twitter last night talking about flooding Texas courts with lawsuits. When you file a lawsuit, the defendant has to file a response, and then the court has to file a ruling, right, so to jam up the courts working on this issue, that's another creative direct action step that can be taken right now. And wrapping up, talking about next steps and direct action and what people can do right now, I just think that at this point, with the merits of this case having not been fully decided yet with just this sort of shadow docket ruling and the Court saying, oh, this is a novel question, and we don't know yet, and we'll decide at a later time, if we have any chance at the Supreme Court changing trajectory and not overturning Roe versus Wade, it will be because public backlash is swift and intense and massive. Justice Kavanaugh and Roberts and Amy Coney Barrett are absolutely listening to...

0:42:46.3 Michael: Not our podcast, but... Unfortunately.

0:42:52.3 Rhiannon: The Justices, we've talked about this, the Justices are human beings themselves who consume the media themselves, they are looking and watching and listening to what the public reaction to this is. If it is obviously deeply, publicly unpopular that they are doing this, that's the only chance that we have right now of changing direction on this law.

0:43:15.6 Michael: I think the worst sign for abortion rights in America right now is that there wasn't massive marches and sit-ins...

0:43:24.1 Rhiannon: Already.

0:43:25.9 Michael: Already, right, like Thursday night, Thursday, it should have been immediate and you gotta lay some of the blame for that on legal media, political media and the party itself for their lack of leadership and their lack of education of their core constituencies about what's happening and how real the threat is, right. I think if people properly understood what was going on and the stakes, those movements would exist, but they currently don't because of a failure at the top, and that is just giving the Supreme Court the green light to just go full steam ahead on this.

0:44:05.1 Peter: Yeah, if your immediate concern, and I think all of our listeners' immediate concern, is the availability of abortions to people in Texas and elsewhere, then donate and organize as aggressively as you can.

0:44:17.2 Michael: That's right.

0:44:20.0 Peter: Last year, we took a week off and Ruth Bader Ginsburg died, and this year, we take a week off and Roe v. Wade gets eviscerated, and all I would like to do is put out into the universe a plea to let us rest.

0:44:33.1 Rhiannon: God hates us.

0:44:36.0 Peter: May we take a goddamn week off. The real victims of this, the hosts of 5-4. This is impacting me now, and it's serious.

0:44:47.6 Rhiannon: Oh, God.

0:44:52.8 Peter: Next week, we are back with more current events, eviction moratorium case, we're hitting all the good stuff, all the new shit that's being dropped at the Supreme Court, and we'll see you then.

0:45:05.8 Rhiannon: Allah, why have you forsaken me?

0:45:08.9 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon,, all spelled out. We'll see you next week.

0:45:22.3 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.