B (5:40)

Thanks for having me.

A (5:41)

Hi, Dalia. The one thing I was curious about, I'm not disagreeing with you. I hadn't realized that. I guess the implication of what you're saying is that the optimists about Roberts are men like me and the pessimists are women. I hadn't realized that or thought about that and don't even know if I agree with it. But I hope we can tease out what that might mean, because that is a puzzling and interesting observation and I could be wrong.

C (6:17)

I'll let Melissa weigh in. I will say that Larry Tribe, who wrote a piece kind of along the lines of yours, said, you know, who's wrong here? Melissa Murray, Dahlia Lithwick, Leah Lippman, I think, and Linda Greenhouse. Right. I think he also disagreed with Linda. So I think there is this weird gender divide. And while I don't want to belabor it, I do think it's super interesting that the glass half full people have tended to be men. But Melissa, do you do you again, if you dispute this, now's a good time?

B (6:48)

I mean, I don't dispute it. I think it is empirically verifiable. So I'm just gonna come out and say I'm on Team Uterus.

C (6:55)

So Team Uterus. Okay, Jeff, you just take that for what is. Let's maybe start by setting the table, because I think this is a slightly confusing case in that it's different and yet the same as Whole Women's Health. So maybe, Melissa, if you could just tell us the facts of June Medical and kind of get us all on the same page.

B (7:20)

So June Medical involves Louisiana admitting privileges law, the Louisiana Unsafe Abortion Protection act, which is honestly virtually identical to the Texas admitting privileges law that was struck down in 2016 in a 5 to 3 decision of the court in Whole Women's Health vs. Hellerstedt. The difference is, of course, between 2016 and now is that the composition of the court has changed substantially. Justice Kennedy, who joined the liberal wing of the court in Whole Women's Health, is obviously no longer on the bench and he's been replaced by Justice Kavanaugh. The decision at the time was five to three because it was during that interregnum period between when Justice Scalia passed away in February of 2016 and when Neil Gorsuch was added to the court after Donald Trump's election. So again, Whole Women's Health, I think, was a sort of watershed moment in the abortion rights movement. It was written by Stephen Breyer. I think, Dalia, at the time, you pointed out that that by itself was actually very interesting that you had this male member of the court, not someone who wasn't Justice Ginsburg really coming out in a full throated defense of abortion rights and more importantly, adding teeth to the standard that governs abortion litigation. That standard was announced in 1992's Planned Parenthood of Southeastern Pennsylvania vs Casey. In whole Women's Health, Justice Breyer makes it a little toothier. Casey is a little sort of amorphous and vague in what is required of courts when assessing an abortion regulation. And in Whole Women's Health, Justice Breyer says that one of the things that needs to be done is you have to weigh the purported benefits of the proposed abortion restriction against the burdens that it potentially imposes. And so this weighing of burdens and benefits is really key here. And in Whole Women's Health, it was determined that since the admitting privileges law really had no verifiable medical benefits for women, it really just imposed more burdens. And because it imposed more burdens than benefits, it was a substantial obstacle and therefore unconstitutional. This Louisiana law is identical to that. Ostensibly, the same kind of weighing of burdens and benefits should have happened in the lower court. That didn't happen. Instead, the Fifth Circuit distinguished the situation from that in Texas by saying Louisiana was a different state and therefore the benefits and burdens would be different in Louisiana. And so they upheld the law. It came before the court. And Justice Breyer, writing for Justice Sotomayor, Justice Kagan and Justice Ginsburg redeployed the same kind of analysis that he exercised in Whole Women's Health. He could not get a fifth vote to join him. He did get a fifth vote for the judgment, which is, of course, that the Louisiana law does pose an unconstitutional burden to the right to an abortion, but not for the same reasons that he would have come to. So Chief Justice Roberts sort of stands alone on this. He concurs in the judgment, but not in the reasoning. And because he is the sort of consequential voice on this, I think his opinion is the one that will control going forward. And I think it's a really interesting opinion in the way it trims back whole women's health. So I think that might be a setup for the great gender divide on this. I see this as a trimming back of Whole Women's Health in really substantial ways.

C (10:41)

Jeff, can I ask you, because I think the one thing that would help us I agree with Melissa. I think the thing that's really important is trying to get your head around this kind of cost benefit burdens versus benefits analysis and that balancing test. But I think in order to get there, we have to Talk about Casey for one little minute because I think that it's really hard. I was trying to explain this to my husband on Thursday night, and this is where his eyes glazed over. So I want to ask you, Jeff, if you could just explain the move from Ro to Casey. I think there's this misconception that Casey, quote, unquote, reaffirmed Roe, but it did a really different thing.

A (11:27)

It did. And maybe this is a window into my really rather simple minded approach to this case. And this in many respects, the way the Supreme Court decides cases, the Roe vs Wade from 1973 was basically operated on a trimester basis, that it said in the first trimester it was very much a woman's choice or actually Woman and her. Dr. Harry Blackmun's decision is weirdly phrased as much about the rights of physicians than it is about women. And I mean that historically, I think, has not stood the test of time very well. In the middle trimester, there could be some regulation. And in the third trimester, the government had a strong interest in regulating abortion. In the opinion written jointly by Sandra Day O', Connor, David Souter and Anthony Kennedy in 1992, they sort of threw out the trimester framework and said the government could not impose an undue burden on a woman's right to choose abortion. So the doctors are out, and the phrase undue burden came in. And what has essentially been going on at the Supreme Court for the past 20 years is, is a sorting out of what the words undue burden mean. In Casey itself. The one regulation that Pennsylvania imposed on the right to abortion, which was struck down, was a married woman had to inform her husband if she was having an abortion. And Sandra Day o' Connor in particular, her part of the opinion said that was inappropriate. However, the story of abortion rights in many respects over the past 20 years has been the increasing acceptance of regulations, I think any sane person would say, aimed at limiting abortions. So the question in Whole Woman's Health and now in June Medical, was the two key regulations here, whether a doctor had to have admitting privileges at a nearby hospital and certain surgical type requirements on the physical plant of an abortion clinic, whether those were an undue burden. But the disagreement that Melissa talked about and that you talked about between the four justices led by Breyer and Chief Justice Roberts, is sort of how the words undue burden will be defined going forward.

C (14:34)

Okay, we're all on the same page now. I just, maybe just to the capstone of this is Melissa, if you can explain, because you said Breyer, his move in Whole Women's Health was really to put pointier teeth on the teeth in the undue burden test. And what he essentially said is, and this is tricky, a lot of the dissenters in June have a problem with this. He essentially says, when you have those two regulations Jeff just described in Texas, the admitting privileges law and reverse engineering clinics to be ambulatory surgical centers. And what Breyer says is, look, I've, I've cased the joint. I have scoured the land. There are no benefits, no medical benefits of either of these for women. And so he creates a balancing test where he says, if this law does no good to advance maternal health, then I put a thumb on the scale saying that's not even an undue burden conversation. There's no benefit to that law. That's the thing he put into motion. Right. Which is the thing John Roberts rejects wholeheartedly this week. Is that correct?

B (15:41)

I think so. I think you're exactly right. I think Justice Breyer in Whole Women's Health is trying to sort of get at this understanding that many of these restrictions, which purportedly are intended to benefit women's health, really don't have that effect at all, but rather make it more difficult for women to either access abortion or for abortion providers to provide those services. And the ambulatory surgical center requirement is a great one. Outfitting abortion clinics as ambulatory surgical centers doesn't necessarily advance women's health. The clinics are already safe. But what it does do is impose new structural costs on providers that they either have to absorb or pass along to their patients, making the abortion procedure more expensive. And so I think part of that analysis was trying to sort of suss out when states are gaslighting courts like, you know, we have all of these benefits for women or just hear about women's health and whether that's really not what's going on at all, but rather the law in question is actually about making it more burdensome to access abortion or to provide abortions. And so that's the balancing test that he has in place. And to be perfectly up front, there's no one who loves a balancing test more on the Court than Stephen G. Breyer. So it's not surprising that he's the one who comes up with this. But it was, I think, an attempt to sort of get beyond the kind of judgment laden Casey standard, which is, does this pose a substantial obstacle to women seeking an abortion where a lower court like say, the fifth Circuit could say it's not a substantial burden to drive 150 miles to a clinic that's just a commute. Instead, Justice Breyer really wants to sort of put some almost like metrics. You have to sort of think about what is meant by this particular law, the impact that it has on the ground, and whether the impact outweighs the benefits that the legislature says is supposedly or ostensibly their purpose here.

C (17:49)

Now let's return to our conversation with Professor Melissa Murray, Frederick Eye and Grace Stokes, professor of law at NYU Law School, and Jeffrey Toobin, a staff writer for the New Yorker, chief legal analyst for CNN and author of the upcoming True Crimes and the Investigation of Donald Trump. And maybe a way to think about it. Melissa. Jeff, correct me if I'm wrong, is if you think about this, and Texas was kind of easy because the minute the Texas law passed, we saw folks in the state legislature spiking the football, so delighted at how many clinics were going to close. It was clear that the purpose of the law was going to be to shutter half the clinics, which is, in fact, what happened. And so it starts I think part of the problem is that Breyer starts from the presumption that Melissa starts from which is these are trap laws. They're just pretextual. They purport to advance maternal health. They're not doing that. Therefore heavy thumb on the scale against the state. And Jeff, I think this is where we lose you. Although you'll tell me if I'm wrong, that you feel like Roberts did not weigh into that conversation at all. Right. He was not willing to make a judgment about whether Louisiana was pretextable. Problem with Louisiana was like chutzpah that the fifth Circuit in Louisiana were overturning whole women's health. And that's not appropriate.

A (19:15)

Yes, sort of. Although my point was more simple minded than the one you just put forth here, which is John Roberts could have voted either way. I mean, you know, when they took June medical, you know, when they granted cert on June medical, I mean, why would you take the exact same case four years later other than to reverse it? I mean, that was my thinking. So I was surprised by the outcome. But the point is, and again, this is where I part company with sort of law professors who think that the words in the Supreme Court opinions matter a lot. And I focus more just on the result. And John Roberts, for the first time in his 15 years on the Supreme Court said state, you can't do this to stop women from having abortions. And that to me was mind blowing. I mean, I think of John Roberts as a dedicated pro life justice and he didn't vote in the pro life position. And I certainly understand the point you made and the point Melissa made about how he structures his opinion. And maybe the undue burden standard is lesser, but if he wanted to approve regulations on abortion, he could have voted to affirm the Fifth Circuit, and he didn't. And that to me was bigger than the terms he used in his opinion.

C (21:02)

And I think, to be perfectly fair to you, Jeff, because you're right, I think you can't and you write this, you can't separate this from his defection on DACA and his defection on, you know, like, it's clear that this is not the chief justice that we saw even this time last year.

A (21:21)

And all of us who cover the court and follow the court are always asked is like, well, what do they really think and what are they, you know, what's going on and what. And the honest answer is, who the hell knows? I don't know. I mean, I have no access to John Roberts innermost life. But here you have three enormously consequential cases. Oftentimes we talk about these cases in abstractions. I mean, these three cases have a huge impact on people's lives. It is now illegal in the entire United States to fire gay people just because they're gay. That wasn't true a month ago. You know, 700,000 dreamers, like, if that case went the other way, would have been subject to deportation today, and they're not. And now Louisiana will have, what is it, seven abortion clinics instead of one. If that case had gone the other way, I mean, that's just enormous. And John Roberts voted with the liberals on all of them. I don't, as I say, I can't explain what's going on in his head. But that's not the John Roberts who wrote Shelby county killing the Voting Rights Act. I mean, something is happening in his jurisprudence. I don't think he's becoming Ruth Bader Ginsburg, but he does not appear to be the same John Roberts as he was 2, 5, 10 years ago.

C (22:51)

Melissa, I want you to react, mostly because I'm watching your face on the zoom and it's so expressive.

B (22:58)

My face has no chill. That's always been my that's why I can't play poker. So Lee Epstein at Washington University in St. Louis and Andrew Martin and Kevin Quinn have talked about this idea of judicial drift that over time, justices move further to the left. And maybe that's something that's happening here, but I don't think that that's it? I think John Roberts plays a long game. He's a canny and savvy person, and I think he is playing a long game. And I don't want to take away anything from those victories in the Title 7 cases or in DACA, but I want to note that those are not wildly overblown progressive victories. So in Bostock, the Title VII case, John Roberts joins what is a very straightforward textualist opinion that reaches a progressive result. But the logic of it and the methodology that's deployed is actually quite conservative. Like, we don't get into the heads of legislators. We simply look at the words on the page and we apply the plain meaning of those words. That's a very straightforward kind of methodology, even if it yields a progressive outcome. And in daca, the chief justice is not endorsing daca. He is not saying that this is a good idea. He's simply saying that the Trump administration, as in so many other cases, failed to dismantle this program in the way that the law requires and go back and dismantle it the right way. I mean, it just so happens that it's unlikely that it will be dismantled because this is an election year. But leaving that to the side, if the Trump administration prevails in November and is back in power in December, DACA will be dismantled in the appropriate way following the Administrative Procedures Act. And so here I think you have a similar kind of dynamic. And again, I come back to the DACA opinion because I think they're sort of, they're both of a piece, right? Go back and do it better. Like, you can't present us with a law that is virtually identical to a law that we struck down only four years ago, and nothing has really changed. And it's not enough to say that Louisiana is markedly different from Texas. This law we know has no medical benefits. Go back and find some better law that's different, that's not squarely on point with the precedent we decided four years ago. And then you'll see the John Roberts you've known and loved for generations, and more importantly, a John Roberts who, even as he hands you this, what I think is a partial victory in the text of this opinion actually strips the 2016 decision of all of its substance. I mean, this is just like Casey, which gutted Roe and left a Potemkin Village shell of the abortion right in place, but stripped it of its substance. Here, whole women's health nominally survives, but that benefit and burdens analysis is all gone. And the precedent that John Roberts is really upholding here is the Casey precedent, which honestly was a victory for abortion opponents because it gave the states wide latitude to legislate abortion out of existence.

A (26:18)

Well, but, Melissa, he had a choice in all three of those cases. There were three justices in the Title VII case, the employment discrimination case case, and four justices in the DACA case and four in the abortion case who said it's fine the way it is, you know, and you don't have to redo it. You don't have to redo daca, and it's okay to fire people because it's gay, because Title VII doesn't say what you say it says. So, you know, you give a very persuasive analysis of Robert's opinions. But he had a choice and he went the other. He went in the liberal direction. And, you know, that to me, is just amazing.

C (27:19)

I mean, can I say one thing? Because I do think that it's worth parsing one part of this, and I think it's important. This is a place where I do agree with Jeff, which is whatever John Roberts is, he's not a Trumpist. Right? Here he is bopping Bill Barr's Justice Department on the nose. Time, time, time again. And I think that's interesting to me that whatever he is, he's not Sam Alito. He's not Clarence Thomas. Alito rushes to the Kermit Gosnell place. Here's Gorsuch talking about fetal tissue floating around in clinic. Right? None of that. None of that. This is not an emotional. I hate abortion. We're going to use this fleeting moment we have of Trumpism to roll back everything that's happened since the Warren Court. Roberts is not that.

B (28:16)

So I don't disagree with you, but I'm gonna propose a provocative counterfactual. What if in 2005, when John G. Roberts was nominated to replace Sandra Day o', Connor, what if Chief Justice Rehnquist had not died and John Roberts was not subsequently then proposed to be his replacement at Chief justice, and he was instead in the Sam Alito seat as an Associate Justice? I think you get a very different John Roberts, one who is more willing to live and die by those conservative legal movement principles. In the position of Chief Justice, John Roberts is a very different animal, one who I think plays a long game, is a more savvy operator, recognizes that this is an election year. The country is incredibly polarized. We are in the most insane. I mean, everyone's shut up on zoom in their homes. The country looks like it's about to just explode with Racial division. Is this the moment to sort of, like, set off a flare about abortion rights? Probably not. And so I think you get him sort of thinking institutionally about what it means in this moment to uphold this law that looks so much like a law we just struck down. To do so would to be to brand the court as obviously and nakedly partisan and politicized, which is something that time and time again, we have seen he does not want. He is the most stalwart protector of the Court's institutional integrity. And I think that comes out in.

A (29:47)

This opinion, to which I can only respond. Good, good. I'm glad.

B (29:54)

I'm glad he was that great. My uterus breathes a sigh of relief, but I'm still, like. It's also convulsing, waiting for four years from now when maybe we're out of the woods, maybe Donald Trump is still president, maybe there's another vacancy on the court and you do have a 6:3 majority, and suddenly you don't have to look like an institutionalist anymore because this doesn't look so fraught.

A (30:18)

I, you know, share precisely that concern, except that, you know, I, you know, had less confidence that Roberts would be, you know, concerned about keeping the Court in the center. I mean, one of the things about, you know, the Supreme Court that I always think about and that I think is very relevant for Roberts is that, you know, his title under the Constitution is not Chief justice of the Supreme Court, it's Chief justice of the United States. And I think he's very aware of that. He feels an institutional responsibility for the judicial branch of government. And, you know, when President Trump said, you know, there are Obama judges and there are Trump judges, you know, Roberts jumped at him. I actually agree with Trump on that. I mean, In most of these provocative cases, of course, they're Trump judges and they're Obama judges, and they're going to see things differently. But Roberts is very concerned about, you know, the institutional respect that the Court receives. Frankly, I don't think, you know, approving these abortion regulations in Louisiana, had he done so, would have set off, you know, a lack of institutional respect for the Court, except among those of us who follow the court. You know, the evil genius of these regulations is that they don't look like an outright outlawing of abortion, even though they often have that effect. So, I mean, I guess I give Roberts a little more credit. Maybe that's just because of my testosterone. No, no, no.

C (32:03)

I think here is what I will say. This is my. I think. I think my last sort of Because I do think that the gendering of the commentary has been quite fascinating. And I think I tend to agree with Melissa. I think it's been, with few exceptions, pretty consistent. But I want to ask, but can.

A (32:24)

I just stop you there without disagreeing with you, why? Why do men, and I'm literally not disagreeing, because you have laid out the facts. Why are men more optimistic about this opinion and women more pessimistic? And I ask that out of genuine ignorance. I wasn't even aware of this until we started talking. But I'm curious what you think.

C (32:49)

And I would say progressive men, I mean, let's cabinet to that, because it's people who tend to be deeply protective of abortion rights and still I think are more sanguine about this than the women who have really responded. I think the way Melissa and I have, which is, hoo, boy, the next one's gonna be a whopper, blow up in our face. I think the one thing I would say, and I will leave it to Melissa, if she has a unified theory, I will say the fact that zero women wrote. We had six opinions in this case, all men, none of the women justices wrote. The silence that I saw in the opinion that really was concerning to me was that women all but disappeared. Breyer writes this very coldly dispassionate kind of admin law, you know, well, you know, doctor number four, surely, you know, there was very, very little of the kind of, you know, Jeff, you started by saying, this is not Ginsburg. You know, Ginsburg would have written about the lived lives of women, women in Louisiana who are going to have one clinic left after they all shuttered. What is that? Like, all that's gone. And so then I think you just get this very strange balancing test from Justice Breyer, who, like, at his most effusive, is still a vulcan stipulated, like he just doesn't roll the way, you know, Justice Ginsburg does. But I think that the absence of women's stories, voices, narratives, the suffering that women are going to kind of experience in this opinion was really striking to me as a woman. I will say that I think it.

B (34:25)

Was doubly striking because not only were the female justices on the court silent, you had the conservative male justices in dissent being so voluble in their outrage. And Clarence Thomas talking about abortionists, you know, as opposed to abortion providers. Neil Gorsuch painting really visceral images of clinics. And again, it would have been nice to have a woman's voice in all of this. And I'm just reminded, Jeff, you mentioned the spousal notification provisions that were struck down in Casey. One of the reasons they were struck down was that Sandra Day o' Connor would have none of it. I mean, she talked about those spousal notification provisions as a remnant of an archaic past where women literally were absorbed into the legal identities of their husband. And that surely could not be the case today. And that's one of the reasons why she found this problematic. That and also the consequences for women who were victims of intimate partner violence. But it was a woman's perspective that was brought to bear in thinking about that. And I think about Justice Ginsburg's opinion in the fourth Amendment search and seizure case reading from that period when she was the only woman on the court. All of these justices weighing in about whether or not it was okay to strip search a middle school girl. And she was like, none of you have any idea of what it is like to be a 13 year old girl in school and to be strip searched. And so I think, again, I think to Dalia's point, the voices and experiences of women and what the question of reproductive rights and autonomy means to women is just absolutely absent here.

A (36:08)

In an effort to perhaps find some common ground, could we at least devote a small measure of our conversation to the incredibly weaselly dissenting opinion of Brett Kavanaugh, who, you know, the voice of Susan Collins is always on his shoulder.

B (36:28)

She was the one woman in this opinion.

A (36:30)

She was the one woman that's right. That, you know, her sort of Pavlovian response to Kavanaugh's total bullshit claim that he was like in love with the stare decisis and the rule of precedent. I thought that Kavanaugh wrote this tiny little dissent saying, well, what I really want is more fact finding was a way for him to vote with the conservatives without looking like he was trying to overturn the four year old precedent. Even though he was trying to overturn the four year old precedent. And I thought it was just, I mean, weasily is the word that occurred to me because he wasn't even honest about his own position in the case.

C (37:14)

And the double so cow weasel that comes out of Susan Collins who says, well, nowhere in his opinion did he write roe v. Wade is overturned. Therefore I kept my, like, it's like, come on sister, pull it together. Like at least be honest about his dishonesty. But like even that is a recent.

A (37:32)

Dahlia, you and I, as we said, disagreed about the case. But, but I thought it was revealing that we both took shots at Susan Collins in our pieces.

C (37:45)

It was a little too easy. Maybe we could. I think I could say that the other point of maybe commonality in the three of us. And I don't want to speak for anyone, and I actually want to thank Jeff for agreeing to come on and let us kind of be all uterine at him. But I do think maybe one thing that I would say is what made me nervous about Kavanaugh's dissent is what made me nervous about the chief, which is I don't like that this decision making power is all being arrogated to these men. And they're gonna tell us, you know, like basically Kavanaugh's saying, hey, let's kick it back to Louisiana. We'll let these doctors try a little harder. Maybe they could be in good faith they'll get their admitting privilege. And if all the clinics close, I'm wrong. And there's something that is true, so attenuated from even Casey in letting men tell us that they're going to decide if and when an undue burden has been reached that I think may be the spine of why Melissa Murray, Dahlia Lithwick, Linda Greenhouse reacted the way they did.

A (38:53)

But can I just say that I think, I mean, in many respects have a more extreme view of all this than you do. All these regulations are just total bullshit. They have no. They're not based on anything except the desire to make abortions more difficult, to get more expensive and more inconvenient. That's the only purpose. They have nothing to do with. With women's health, with fetal health, with anything except the dis. So. So, you know, and this is, of course, you know, the problem with Casey, which is, you know, it shouldn't have that anytime you establish any sort of balance, it's negative. But don't get me wrong. I mean, I see what's going on here and the fact that all these male legislators and male justices are responsible for trying to pretend that there is some legitimate justification for these regulations. I am aware that it's all a complete farce.

B (40:05)

I'm gonna take that as you're joining Team Uterus. This is like when Kevin Durant would be.

A (40:10)

I would be proud.

B (40:11)

It's a dream team. It's a dream team.

C (40:13)

Yeah. I wanna thank Melissa Murray. She's one of the hosts of the Strict Scrutiny podcast, which I hope everyone is listening to. She's also a professor of law at NYU School of Law. Jeff Toobin covers the courts for the New Yorker for cnn. His new book, True Crimes and the investigation of Donald Trump will be published in August and we'll have him back. I hope to talk about it. Friends, this was illuminating and weirdly awesome. So I want to thank both of you for spending time from my walk in closet to yours for spending time today.

B (40:56)

Thanks for having us.

C (41:02)

And that is a wrap for this episode of Amicus, the Extra Extra Uterus Testosterone Edition. Thank you so much for listening in. Thank you for your letters and your questions. You can always keep in touch@amicuslate.com or you can find us@facebook.com Amicus Podcast. We love your letters. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcast, Alicia Montgomery is executive producer of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus in two short weeks. Until then, hang on in there.