A Finished Term: Decided Supreme Court Cases Impacting LGBTQI+ and Repro Rights

From Skrmetti to Medina to Mahmoud, the Supreme Court has been busy issuing devastating rulings on cases that carry profound implications for LGBTQI+ health and rights and reproductive health and rights. Chris Geidner, author of Law Dork, sits down to talk with us about these recent cases out of the Supreme Court, and what these rulings mean for our rights and wellbeing.

United States v. Skrmetti was a challenge of Tennessee’s Senate Bill 1, which prohibits gender-affirming care for transgender minors. By a 6-3 ruling, the Supreme Court ultimately upheld the state’s ban on gender- affirming care for transgender minors. Medina v. Planned Parenthood of South Atlantic was another case heard this term—in fact, it was a culmination of decades of attacks to Planned Parenthood and other providers, specifically targeting efforts to kick these providers out of Medicaid. In another devastating 6-3 ruling, the Supreme Court sided against reproductive health care.

 Mahmoud v. Taylor was a case related to LGBTQI+ inclusive textbooks in Maryland. If parents had a religious objection to anything in the curriculum, they fought to exempt their children from the lesson. By a 6-3 ruling, the Court ruled in favor of the Maryland parents. Lastly, Kennedy v. Braidwood Management Inc. upheld a key Affordable Care Act provision requiring health insurance companies to cover certain care cost-free, but also allows the secretary of the Department of Health and Human Services –Robert F. Kennedy Jr.—more autonomy to reshape the provision.

Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Jennie: Hi, rePROs! How's everybody doing? I'm your host, Jennie Wetter, and my pronouns are she/ her. So y'all, I'm recording this a little earlier than usual. I'm recording it on Wednesday, July 2nd, because I took the rest of the week off, and I am very excited to have a really quiet, chill, long weekend. I think I might have talked about this before, but I'm sure, you know, I don't expect y'all to remember all the little things, but when I get stressed, I have some stomach issues that start to flare up and this week has been one of those weeks where my stomach has been very unhappy. So, I decided to go ahead and take some extra time and just try to unwind and de-stress and just de-stress. So, I'm very excited and looking forward to the weekend. But that means there was really good news today, Wednesday, July 2nd. The Wisconsin Supreme Court struck down the state's near total abortion ban, which is amazing. Again, as a Wisconsin I was born and raised there. I lived there until I moved out to D.C. for grad school. This is very exciting for me. I'm so happy to see this go down. The law was passed in 1849, which was a year after Wisconsin became a state. So this has been terrible, and it went in place right after Roe was struck down. It hasn't been in effect since 2023, where abortion providers were able to start resuming providing services after a judge issued a ruling. But now the state supreme court has completely struck it down which is amazing. I am so happy for my friends and family in Wisconsin who now have access to abortion and don’t have to worry about this zombie law coming back. So, that is super exciting. What a great way to kick off my long weekend. I'm trying not to think about all the other things that are happening. The reconciliation bill is still moving forward. It still has provisions to defund Planned Parenthood in it. We have an interview coming up that's going to be talking about some of those things. We've already talked about why it would be terrible to defund Planned Parenthood, but the Senate passed their version of the bill, and it is still continuing to move forward. The House has to take action now. Again, recording on July 2nd, so things could have changed between now and when y'all are hearing this on Tuesday. It really would be great to see this bill die and not have to deal with it. But yeah, still moving forward. But I am focusing on the big win out of Wisconsin. I'm focusing on having a really long weekend with no real plans other than to do some reading, maybe go outside if it's not terribly hot and gross, and then be home at night to hang with the kitties when all of the fireworks are scaring them. So, I'm really looking forward to a very, very chill weekend. So those are the vibes I'm carrying right now. I'm really just leaning into the happy bits and not worrying about the stressful stuff that I can think about when I start working again next week. Yeah. That's my plan at the moment. I'm sure that will not completely hold, but that is my plan. But I am very excited about today's interview. So, let's go to that because I'm sure it's going to be a longer one because there is so much to talk about. I am so, so excited to have Chris Geidner with Law Dork on. We are going to be talking about some of the important cases related to sexual reproductive health and rights from this past Supreme Court term. I've been promising y'all that we have a wrap-up episode coming, so it is finally here. I am very excited to talk to Chris about all of the things that happened at the Supreme Court related to sexual reproductive health and rights. So, let's go to my interview with Chris. Hi, Chris. Thank you so much for being here today.

Chris: Hello.

Jennie: I'm so excited to talk to you about... the chaos that was this Supreme Court term, but before we get started, do you want to take a second and introduce yourself and include your pronouns?

Chris: Yes, I am Chris Geidner, I run Law Dork, and my pronouns are he/ him.

Jennie: Okay, before we get into any specifics, because we're going to talk about, I mean, only a handful of the cases, the ones that are related to sexual and reproductive health and rights, but it feels like we should maybe just... what are your overall thoughts on this term? Like I said, it felt really chaotic.

Chris: Yeah. I mean, it was, and a lot of that was their own doing, the conservatives and their majority, because they, especially with the six votes, they really do have control of both what cases they want to take and what how they want the fallout to play, because there's sort of like three main aspects of any Supreme Court case. It's deciding to hear it, which the court has virtually complete control over its docket. There's how they decide it, sort of the legal ruling, and that's sort of what we generally think about what the Supreme Court does. But then also importantly, it's like how they actually functionally resolve the case, like what they say the next steps are. And I think on all three fronts this term, we got good examples of the bad chaos that you're talking about.

Jennie: Okay, let's talk about one of the ones that, you know, speaking of timing, like I wasn't quite ready for Skrmetti to come out. Like I assumed it would be one of the last ones. So, all of a sudden it popped up and I was like, oh, oh my God, I have to deal with this today. What was the Skrmetti case and what happened?

Chris: Yeah, I mean, Skrmetti was the challenge to Tennessee's ban on gender-affirming medical care for transgender minors. And although, ironically, that basic description, which has been in thousands of news articles, is not actually what the law is, according to John Roberts, who wrote the majority opinion. And what happened is that John Roberts told us that it is not a law that classifies based on sex, even though the law classifies based on sex on the face of the law. And it's not a law that classifies based on transgender status, even though if you asked 100 people in Tennessee, regardless of whether they supported, opposed, or don't know about how they feel about the bill, all of them would say it was about transgender kids. And despite that, John Roberts told us it was a law about age classifications because it was limited to under 18 and medical use because it was about treatment for gender dysphoria. Now, the fact that the only people diagnosed with gender dysphoria are trans people was sort of irrelevant to John Roberts' consideration, which I think ultimately the sort of long arc of history will be the reason why this decision will be seen as just not a legal decision. We can get into it more, but the case that he based it on was this 1970s case about pregnancy discrimination that everybody agrees was a bad decision, but I would argue that applying it here was... not even bad faith. It was just like, it was the sort of thing that if a law student had proposed this in a paper like five years ago, a teacher would have flunked them. There's no coherence to the argument. And so, but because he did that, there were no classifications on the law as he and the majority were considering it, which the court recognized as getting heightened scrutiny. And that's when the courts look at laws that classify people. Basically, they say, you know, all laws classify like that. That's what laws do. And most of the time we don't really care about that because laws have to classify who's covered by a law and who doesn't. But when laws classify in a way that we think merits additional scrutiny because it is traditionally not something good when governments classify people that way. We give extra scrutiny, and the primary one is race gets strict scrutiny, which means that it's generally going to be struck down. The legal test is [that] you have to prove that there's a compelling state interest in that classification and that it is as narrowly tailored as it can be to catch that. But then, specific to this case, there's sort of a middle group called intermediate scrutiny, and that's what sex classifications traditionally have gotten. And in order to classify people based on sex, what the courts have said is that you have to show that there's an important interest and that the classification, the law, is substantially related to that. And so basically what that means is that sometimes it'll be allowed but that generally we're still going to look at that suspiciously but because John Roberts said there was none of those classifications here, we just used rational basis which is that lowest level the basically it gets through level and you just have to prove that there's a legitimate reason. And as bad as the classification decision from Roberts was, what he actually did in the next part, I think, was in some ways even worse. Because what he decided was, if you've been following this issue of gender affirming care, like... there has been this very intentional effort from the right to create a debate, to pull out a few outlier cases, get those people in front of legislatures, get them talking about it, create this debate around detransitioners, which is like handful of people, as opposed to the thousands of children who are trans, which still in the scope of the world is basically no children. And what John Roberts did is [he] said: we don't even under a rational basis we don't even need to get into that debate and decide if they were right all that we need to do is say that Tennessee lawmakers saw that there was a debate and wanted to restrict it because they knew there was this debate. And he literally said that that was enough. And I think that that is striking for how much it waters down the little bit of teeth that rational basis had and it also shows how utterly unjustified his decision not to find any classification here was. Because the very discussions that he was talking about, the debate that he was using to rationalize his rational basis approval, was all based on transgender people. It was all based on transgender status. It was all based on sex-based classifications. He almost had to just say the debate was enough because if he even started quoting the arguments if he even had to get into the arguments it would have made that first part of his ruling look utterly insane because every lawmaker talking about it every witness talking about it every advocate for or against it was going to be saying "what are you doing to transgender kids" or "these lefties are trying to indoctrinate and tell kids they're transgender." Like there would literally have been no way to get into the debate beyond saying debate is enough without acknowledging how faulty the logic of the first part of his decision was. But he did that. And because of that, you had no classification that got more scrutiny. And he watered down what that rational basis could scrutiny was to basically nothing. And therefore, not only are the laws allowed, not only does that mean that virtually all of the other states would be allowed, but you also sort of had this even the things we didn't decide are getting skeptical look about them, because since they decided that the Tennessee law was not a transgender status classification, they didn't resolve one of the questions that was before them, which was what level of scrutiny of those three levels that I talked about do laws and classifications based on transgender status yet. So, they didn't even resolve that question. But obviously, with the way that they were talking about it, it was hard to imagine that they would give it heightened scrutiny. And also, Justice Barrett, joined by Justice Thomas, wrote a concurring opinion saying that if and when we do reach that question, I think it's clearly going to be a rational basis. And interestingly, Justice Alito, so you had the three Democratic appointees dissented, led by Justice Sotomayor in a powerful dissent, basically saying a lot of what I've just told you. Justice Alito, I think, was in some ways the most interesting opinion. I really question what's going on with him. And, like, dare I say I'm defending Justice Alito, and this will be the first time in the history of Chris Geidner that I've said something positive about Justice Alito. But he kind of called out the second part of Roberts' bullshit. He said... I'm not quite sure how you say this isn't a classification based on transgender status. Now, he said, ultimately, I don't need to make that decision because I'm going to assume it is a classification based on transgender status. And I'm going to say that transgender status gets a rational basis review. And I think the law would pass under rational basis review. But I think it was really interesting that Alito did not give them that out. So, like, technically that decision was 5-4, which is really interesting because what that means is that all five of those justices who did join it, so all of the other Republican appointees, are held accountable for that and should be. So that includes Barrett, who has been trying to sort of play this, I'm a thinker, I'm going to look at these cases objectively and reach an independent conclusion in each case. Like, if you were willing to go along with a rationale that even Judge Sam Alito calls out, Justice Sam Alito called out, you really need to think about what you've done. Like, it's sort of like, I mean, I'm a pretty... not just outspoken, but loud person. And one of the things that I used to say in law school to people in the library was like, I would go up to them and be like, so you're being a little loud and I don't really care. But if I, Chris Geidner, think that you're being loud in the library, think what everybody else is thinking. And it's sort of that logic. Like if Justice Sam Alito is saying that your legal reasoning is poor, go back to the drawing board.

Jennie: The thought that the debate is enough ... like, that's terrifying. And how big that could get.

Chris: It's astounding to me. Yeah, it's really bad.

Jennie: Yeah. Well, and I also was just thinking what really struck me on that day when the decision came down, it was also the day we found out about the cut in services for 988, getting rid of the LGBTQ extra services. And now just today, did I see they're picking up trans people in sports? Like, this is not the end.

Chris: Yeah. So, I mean, now, the good, bad, and evil of that is that that is now going to be that Equal Protection question. It's going to be next to impossible to avoid the question there. And I haven't had time to look over what they actually granted in because it's coming so closely after. I'm still working on closing out this term. And like the reality is that we're going to now have a full briefing, unlike the shadow docket questions. Like, I mean, this is like in- for all the bad that this will be. Like, when we talk about why shadow docket decisions are so dangerous, these emergency applications that the Trump administration keeps taking up quickly. This shows like a good example of why those are so bad. And like, so what this means now is, is that we now know that they're going to be hearing that, like, even if you assume the worst case scenario, which I kind of think you need to in light of the not even subtle signals that we've gotten from the court, some of the other ones of which I've written about and we can talk about, the fact that they've now granted it. It's July 3rd. We have all summer to be addressing it. The parties are going to be briefing the merits of these cases out of Idaho and West Virginia. The amici, which is a “friend of the court” briefs…all of the organizations and individuals who have history, like, you think about the issues that Justice Barrett asked about and wrote about, whether there's a history of discrimination against trans people, I think we're going to be getting some really fulsome historians briefs that are going to explain—I mean I’m sure the merits briefs will as well—but I expect we're going to get some pretty extensive historians briefs in this case explaining to Justice Barrett how her lack of education on this issue needs to be corrected. And we've got that time and then there will be oral arguments like this was just granted now. They've already granted some cases, so it probably won't be ‘til November or December. The Skrmetti case was granted around now last year, and it was heard the first week of December, which is the third sitting of the term because the justices start in October. So, it'll probably be late November or December. And then we'll have months after we know how the arguments went to deal with that, [to] prepare, look at what needs to be done to protect people. And so, the decision will probably be in June of next year. And I do think that as important at times as getting quick resolution, like obviously the birthright citizenship, because they said it's going, a clearly unconstitutional executive order is going to go into effect in part on July 26th. Like, that needs to be resolved and get back to the court quickly. But in a situation like this, where a lawsuit has been ongoing for five years now, four years now, I think that it's really good that we're now going to have a year to talk about these issues, to make the best case to the court, to make the case to the public, to prepare trans people for what protections they need for themselves, what protections state and local governments in areas where they can provide them in addition to any federal equal protection, so that that can all happen in a more methodical way than, for example, a January 20th executive order from the president that purports to do unconstitutional things at the stroke of a pen that then need to go into immediate litigation.

Jennie: Okay, that's a lot on Skrmetti. That was a big case, huge implications. The other big one that is going to have big implications for sexual and reproductive health, but also for so many other things is [Medina v. Planned Parenthood South Atlantic].

Chris: Medina. Yeah. Before we do that, just since we're not going to go a lot into it, I just want to like some strands in between Skrmetti and today's grants.

Jennie: Yeah.

Chris: It's important to know that in between there, we had a couple of things that happened that I wrote about it a lot of work and you can look at and read, but you had Mahmoud v. Taylor, which was this decision over LGBTQ+ inclusive textbooks in Maryland, Montgomery County classrooms, where Justice Alito was not showing his more enlightened self. And they essentially, I mean, not essentially, they said that there is a, that parents, if they have a religious objection to anything in the curriculum, they basically have a right to get notice of that and a right to opt their children out of it, which is absolutely insane, absolutely counter to the court's precedence in these areas. This was a Free Exercise case, and the court, Justice Sotomayor and her dissent here, really laid out how the quote "chaos" that this was going to unleash for school districts. The only sort of opt-outs that schools have had previously are generally like self-contained lessons like essentially sex ed class is the big one and her her point was like: how do you do that when it's like a book? That like these books were not even like a chapter in a lesson plan, they were books that would be on the shelves available to be picked out by students. And if the students chose these books there were like lesson plans for the day that would go along with it like when you have like read-along time where the teacher reads a book and the kids talk about it. It's utterly unhinged and, but it was sort of based in this Free Exercise right. Then on Monday, the court, which in Skrmetti, the case was labeled US v. Skrmetti, if you notice these things. And that's because the case that they actually took up was the case that the Biden Justice Department asked the justices to take up, not the two cases that the individual plaintiffs, the trans kids and parents and doctors had brought in Tennessee and Kentucky. And the reason for that was that the Justice Department just asked those two equal protection questions about sex classification and transgender status. The individual plaintiffs also asked a third question about parental rights under the due process. There's a line of cases that have to do with a parent's right to control the upbringing of their child. Now, on Monday, literally three days, the next business day, as the Justice Department is regularly saying these days in cases when they say that they're being overwhelmed by court decisions, the next business day, less than 24 hours after the court issued this big parental rights ruling on Mahmoud, they denied the cert potential. of the individual plaintiffs in the Kentucky and Tennessee cases, which meant they weren't going to take up that parental rights question when it came to trans kids. And the way that I wrote about it at Law Dork was like the message from the court was pretty clear. It was, if you have LGBTQ-related concerns, anti-LGBTQ concerns, the court is going to listen to them and find a way to protect them if you have actual concerns for LGBTQ people, your children, the court is just going to ignore that and not even take up that case. And so, that happens. And then on Thursday, the court says, but we are going to take up this case where LGBTQ kids, where trans kids won below, and the state is asking for an appeal. And we're going to hear these sports ban cases. And then just to put a cherry on top, there was a case out of... Montana, you would probably know, I forget, the abortion, the parental consent

Jennie: Yeah, I think that's Montana.

Chris: The Montana Supreme Court, I think it was-

Jennie: Yes.

Chris: -had struck down a parental consent there under abortion law, under Montana Constitution. And the state wanted to take that up and ask the Supreme Court to review it. Or no, no, the challengers, whoever wanted to take it up and said, wanted a parental rights case there saying, ‘no, no, parental rights when it comes to abortion are really important and you shouldn't be able to have this exemption to allow minors to get an abortion without their parental consent.’ And the court did deny that. So, they let that Montana Supreme Court ruling in effect. But Alito and Thomas wrote a statement there basically saying, this is a really poor vehicle because it had been argued below only as a Montana constitutional case. They hadn't been talking about the federal constitution and parental rights. So, we don't think this is a good vehicle to resolve this question. And they specifically said, basically, you should not take anything out of this about the merits of that claim that there's an argument that is to be made that there's a parental right to be informed before your child can get an abortion, which I think is really the cherry on top because we didn't get a statement like that from one of the Democratic appointees on Monday when it came to the same issue, when it came to parents caring about their trans kids.

Jennie: That was really great to hear that progression because I think with all of the things happening, I took notice of all of them, but having that line drawn was...

Chris: Yeah, that was literally over six days. That was over seven days. I mean, from Friday to Thursday, that's what happened. We had five different trans and or parental rights cases that basically the way they came out was... wholly based on whether it was on the left side of the ledger or the right side of the ledger. And the one case that didn't come out that way, two of the most conservative justices wrote to say, don't take it as a bad sign for the right.

Jennie: Okay. Medina.

Chris: So, yeah, with that, Medina. So... Medina was this case that really shouldn't have been the case that it became. It was essentially just one of these ongoing efforts to defund Planned Parenthood. And what that involved doing was sort of a two-step thing. It was saying that South Carolina was going to not fund Planned Parenthood. They essentially said it was because of their abortion provision and because even though the state funding wouldn't go to abortions, money is fungible. So, they were indirectly supporting the abortion services that Planned Parenthood provided to patients who needed them. And that's like part one. Then the providers and patients sued because under the Medicaid Act, there's a provision that says that it was known, I guess we should say. I mean, it technically still is, but where we're going essentially means that it's worthless. There's a provision that was referred to as the any qualified provider provision. And what that provision said is pretty self-explanatory from the words that are used to describe it. It says that under Medicaid, you are allowed to choose, have any qualified provider provide you with the needed medical care that you have. And essentially, that was a provision intended so that the state couldn't just pick a provider, so that they couldn't pick and choose who they wanted to provide services to essentially create like a winnow to either sort of corruption or provide only bad services to Medicaid patients. Those were sort of the two concerns animating it. And sort of essentially what South Carolina did was right in that wheelhouse because that was the provider that they wanted. And a lot of the reasons, if you like actually dig into the case, the reason why these people said these the client, the plaintiffs in the suit, like, said that they wanted this is that they specifically wanted to go to Planned Parenthood because that was where they didn't feel judged for their conditions, that was where they felt safest getting medical care, that was where they felt they could ask the questions that they needed to ask. So, like, it truly was right in the wheelhouse of: why had this been created then? The next phase in this case comes with, well, what do you do if you have this law? It's not being followed in your view and the state is trying to cut funding. So, they sued under 1983, which is a federal law that is used basically when you sue a state or local official for violating your rights. And the traditional lawsuit that you hear about 1983 actions that you're thinking about generally is like prison inmates, when violence happens in prisons, when prison inmates are abused, when there's wrongdoing in prisons. But the truth is that this is like a key civil rights law that came out of the Civil Rights Act of 1871, that this is a law that evolves out of the Reconstruction era and has a very broad interpretive purpose of affecting anybody's rights. And they were looking at situations, and now, like, you have to take it to one level of generality to, like, think that I'm talking about today's case, but it's not that difficult. They were looking at situations where state and local officials had an ideological opposition to the basic treatment that people were wanting to get to implement their legal rights under federal laws, but state and local officials did not want to respect that. And the federal government created a law that said, no, you're not allowed to do that, state and local officials. We are going to create a rare instance where we are going to say that individuals can haul state officials into federal court. That was obviously in the Reconstruction era. That was Southern governors who were denying rights to newly freed slaves. That is Southern governors who didn't want these freedmen to become parts of society. But like that level of generality that I just took out that one little fact which—important to note—is not in the law. The law does not say it only applies to Black people. The law does not even say it only applies to race. It applies to all people who are being, having their rights violated. And they brought this lawsuit, and it went up. And essentially, we go through the courts and the conservatives have tried to pull back the right of people to sue under 1983 for a while now. And this took it even further. And you got this opinion from Gorsuch, Justice Gorsuch. It was, again, another 6-3 decision. And he essentially said, instead of looking, I mean, you look at these conservatives who everything else is about history and tradition, but when it came to this case, Justice Gorsuch literally turned to a 2023 decision and the court's analysis of a nursing statute and said, well, look, the nursing statute actually says the word "right" several times in the statute. And that's why we said that that is the type of statute that creates a right. And we have said that you can only bring a lawsuit under 1983 for a statute as opposed to a constitutional violation when there is clear rights-creating language in the statute. Now, contra that, at oral argument, Justice Kagan was talking with the lawyer for the state who was trying to defend this argument. And she, like, I mean, Justice Kagan doesn't get flustered. So, like, it was kind of some acting. Like, she knew what she was doing. She knew what she was saying. But, like, at one point, she's talking to the lawyer, and she goes... You can't even describe this without calling it a right. Like, what? It's an awareness of the ability to obtain a provider of your choice? Like, it's a right. Like, that's what it is. But Gorsuch said no, since the statute itself didn't use that language, that specific word, which like at arguments, they were saying, oh, no, we don't want a magic words test. But that's essentially what he did, that the language is that this nursing statute provided, quote, the only reliable yardstick against which to measure whether spending power legislation confers a privately enforceable right. And so, essentially, they cut a whole chunk out of 1983 litigation, which- this is like a win-win for conservatives because they always want to cut down 1983 legislation and this let them do so in a case where they were giving a win to the defund Planned Parenthood movement.

Jennie: Yeah, and I think that's a really important point that it is bigger than just Planned Parenthood because I think a lot of the coverage has really focused on the Planned Parenthood part. And one, it could also be other providers that could be targeted. It is going to end up being so much bigger, right?

Chris: Well, and not just providers. This essentially said that whenever you use the spending clause, which is the broad way, that's essentially how... I mean, because remember, 1983 is only about state and local actors. It's not about suing the federal government. And so, the spending clause is one of the only ways, because we have this great system of dual sovereignty where states retain their own rights. Basically, the spending clause is one of the only ways that the federal government can make the states do things unless you pass a new amendment, because the federal government gives out so much money to states that they can attach conditions to it. And so the question here is when the spending clause is the mode that Congress has used to create a state obligation, when can that statute create the ability for an individual to sue under 1983 if they aren't- if the state says, no, we're not doing that? And the limit to that is this FINRA, this, I don't even, that's not, FINRA is a separate thing, the Federal Nursing Healthcare Act, that basically you literally have to have the word right, right, right, patient, client, whatever the individual language is, throughout the statute in order to do that. Otherwise, what Gorsuch literally said. Otherwise, the only way of addressing state noncompliance is the federal government pulling funds. And so, if you don't have an executive that is interested, and this would apply to both sides, if you don't have a, but of course, it will disproportionately affect Democratic left side litigation because they're more interested in rights-based litigation, but that essentially, if you don't have the White House in your camp, there is no way of dealing with states that don't want to enforce this spending clause.

Jennie: Okay. Again...

Chris: And in addition to that, sort of part two of that was, that's even further removed from this case is there's always one of the most common things to happen in the U.S. Supreme Court today is Justice Clarence Thomas writing- Justice Clarence Thomas, for the first 20 years of his time on the court, wrote solo dissents. We all knew Clarence Thomas would regularly write solo dissents, talking about something crazy about how he thought the law should be interpreted. Unfortunately, now they're concurrences. When they're not the majority opinion, they're concurrences because they are, he agrees with the ruling because it's the conservatives winning, but he'll write a concurring opinion explaining how the court could go even further and how he wishes it would. And this time, it was to say that he thinks the court is looking at 1983 litigation writ large wrong. And remember when we talked about the fact that, like, this was a civil rights era legislation, Reconstruction, he essentially was like, we need to go back to that and re-look at this and consider how narrowly this should be interpreted. That led to an even sharper part of her dissent from Justice Jackson, who was like, whoa, buddy. And I thought that this was a really interesting reality, that is a really strong, powerful, good thing about having Jackson on the bench. For a long time, literally, since he took over, because he took over Justice Marshall's seat, since Justice Thomas took the bench, he very much has felt free to declare how civil rights statutes and the reconciliation amendments should be looked at. And bluntly, a lot of white justices were like, we'll let him do that. He didn't have the majority. He was often writing for himself. But like, nobody was like, no, you're wrong, Justice Thomas. Until Justice Sotomayor came on, she started saying some of it. There were occasional things where Breyer or Ginsburg would be like, what's he doing here? But now, Justice Jackson is very comfortable, very quickly saying, what are you talking about? And she wrote a very harsh dissent that was good. She said, because his opinion is not tethered to the specific facts or arguments presented in this case, an extensive response is not necessary here. But it is worth pausing briefly to think about whether the historical account he wrote offers, reflects the level of depth, nuance, or context needed to support the wholesale reappraisal he is envisioning. I mean, she basically said, what are you…she later said, more caution, parentheses, and more research, end parentheses, may be warranted before our longstanding precedents in this area can be seriously scrutinized or attacked. That's some good stuff. And in between there, she did. She didn't go on at length, but she put like a page or two [where] she went back and looked at what actually was going on then: what were people talking about then? What was the broader context intended there? I think, and this is something that I've talked about elsewhere, I think that Justice Jackson is getting very comfortable and ironically perhaps from growing up in an era of watching Justice Thomas' solo dissents where she is very comfortable giving a solo dissent. If Sotomayor wants to join, she's happy. If Kagan wants to join as well, come on board. But she is very comfortable issuing a solo dissent to say no you're wrong. Your history is wrong. Your alleged reliance on history and tradition is wrong. And I'm going to call it out when you do so. And she'll go outside of history and tradition, and she'll say, no, why are we even looking at history here? Let's look at what's actually happening. Let's look at the reason why they passed these amendments. Let's look at the reason why- the forward-looking purpose of these statutes. She's also given some incredible dissents in labor law, which I think is really interesting, and I've been watching closely. And I just, I think that it's very good that we have someone who knows that she's going to be on the bench for most likely for much longer than the two other Democratic appointees with her. And she is very comfortable sort of laying out her own position. But it's not that she sees it as like, I'm writing for myself because nobody else understands me, which is sort of what some of Thomas' dissents were. She is writing from the start as: everybody else should be thinking about this. And I think it is only one step removed from when we would get those Ginsburg dissents saying, or sometimes concurrences or judgements saying: this is the decision of the court today, but Congress should act or like the Ledbetter decision. I'm thinking of the Voting Rights Act dissent in Shelby County [where Ginsburg is] essentially saying, like: look outside, look at what's happening. Act, public. Act, Congress. Jackson doesn't need to do that because she is, she's laying forth a public vision that is, is the, the way that we that she believes we should be looking at The Constitution, the law, our democracy, our republic, I think it is that big. You look at her solo dissent in the nationwide injunctions case on Friday is a perfect example of that.

Jennie: Okay, Chris, I want to be respectful of your time. So, don't want to keep going too long. But maybe we want to do a real quick hit on [Kennedy v. Braidwood Management, Inc.] since it was PrEP at the center of that.

Chris: Yeah, Braidwood was the case that started as a right-wing vehicle case. It was brought by Jonathan Mitchell, the former SG of Texas, Solicitor General of Texas, who had been behind SB8, Texas' vigilante enforcement abortion ban. He brought this case on behalf of these far-right religious employers who didn't want to cover PrEP or contraceptive care as they need to do according to the Affordable Care Act, the preventive care requirements in the Affordable Care Act. And they, of course, filed this in the Northern District of Texas, got their Reed O'Connor, one of the two single division judges who are far, far, far right. Reed O'Connor, sort of, they got one of these... you got too much of a good thing. Reed O'Connor sort of incidentally blew up the case by not just banning PrEP and contraceptive care but striking down the entire preventive care task force panel that was behind the recommendations that led to the PrEP and contraceptive coverage being included. He also would have struck down two other boards. And then when it went up to the Fifth Circuit, the Fifth Circuit said, well, he's wrong on these two other boards, but he's right on the Preventive Care Task Force. And the irony of the Preventive Care Task Force is it was a Reagan-era creation that basically is what it sounds like. It was a bunch of experts who recommended what they think we need for preventive care. When the ACA was passed in 2010, they were like, oh, we don't need a new task force for this. There's one that exists. So, we'll use their recommendations to create this ban on cost sharing that essentially said any recommendations from this task force, you can't have a copay or other cost sharing under your insurance plans. It gets up to the Supreme Court. It's blown up because it is this whole task force. It's cancer screenings. It's mental health care screenings for kids. It's like hundreds of recommendations since 2010 that would have been impacted. The Biden administration was opposed to it. There were these other…everybody outside was opposed to it. Then the Trump administration takes over. And this is a case where they didn't change sides, even though it was a far-right case initially. They didn't switch sides. They didn't say we disagree with the Biden administration. They might have argued it a little differently but we get to the ruling and essentially the ruling was this task force is just like any other task force the justices at argument made it clear where this was coming out they were like: what are you talking about? Do you really think that like buried in the ACA was the creation of an independent agency that has no other power than this one line item of recommendations that the HHS secretary ultimately can reject. It was all hinged on this language in the appointment of these people that they're supposed to be like, I forget the exact language, but it was essentially like, removed from politics as possible. That was all that it's like, I do, the quote is as possible. And like... you had like Jonathan Mitchell up there arguing essentially that like that meant that they were this insulated agency that was couldn't be removed and needs to be it's this it gets into this whole complicated area of law about the appointments clause which would mean that if Jonathan Mitchell was right the members of this preventative care task force would need to be appointed by the president and confirmed by the Senate as opposed to being like a part-time twice a year meeting that are like appointed it wasn't even generally appointed by the HHS secretary it was by like one of the subdivisions of HHS and where we get in the ruling is ultimately an agreement that these are inferior officers which like duh and their authority is is vested on under the HHS secretary, which is the way that anything under any agency ultimately is determined. Now, that's the win. The complication is best seen when you look at one of the other two panels that provides the recommendations that are covered under the Preventive Care Task Force that you might have read some stuff about. It's ACIP [Advisory Committee on Immunization Practices], and that's the one where RFK Jr. kicked off all of the board members and then replaced like half of them with vaccine skeptics. Essentially, after Braidwood, RFK Jr. is free to fire the entire Preventive Care Task Force and replace them with whoever he wants. So, we could see some, essentially, Jonathan Mitchell being appointed to the Preventive Care Task Force who then do try to cut PrEP coverage. And who knows what else that RFK Jr. has decided aren't actually things, even though science says they are, and cut them. And that will lead to lawsuits over the authorization for those appointments, the APA lawsuits, Administrative Procedure Act lawsuits over whether the decisions to remove certain care were reasoned to be. or whether their removal was arbitrary and capricious. So there's a whole new line of cases that could come. But with so much of the Trump administration and this moment, the thing that I like to talk about and that I'm going to be writing about this Sunday at Law Dork is that a big win is slowing down, stopping any individual movement and forcing them back to the drawing board. There was a district court ruling on Wednesday night, Thursday morning from Judge John Bates, a George W. Bush appointee in DC, who said using that APA under the Administrative Procedure Act said that if you remember back at the end of January, when there was that like mass order to delete any website that was a public-facing website that had the word transgender on it. He issued a ruling overnight, Wednesday to Thursday, that said that wasn't the OPM memo demanding those website removals and the HHS memo that apparently was issued on January 31st and said they had to implement it that day were arbitrary and capricious, and he vacated those memos and sent them back to OPM and HHS to try again. And what that means, it's another just like Braidwood that like sent back to the drawing board. And all of those websites that were removed because of the OPM or HHS memo within HHS have to be put back up for now. And that's at least a temporary win. I mean, one, it's a procedural win. It is a legal win. But more importantly, it puts the info back up and online. So that people can, if there was info that wasn't downloaded before it was taken on the 31st, they can download it. Outside organizations can download it. And in this case, this was brought by Doctors for America. We can literally live to fight another day.

Jennie: Yeah, that was great news when I saw that last night. And I totally agree with the delay and trying to just gum up the works as much as possible is the way forward. Well, Chris, thank you so much for being here. As always, it was an absolute pleasure to talk to you. And just thank you.

Chris: Thank you.

Jennie: Okay, y'all, I hope you enjoyed my interview with Chris. I mean, it feels kind of weird to say enjoyed when we were mostly talking about terrible, terrible things, but it's always wonderful to get to talk to him about all the things that are going on at the Supreme Court. I always enjoy having a conversation with him, so I'm so grateful that he was able to come on and talk to me about what happened this term. So, with that, I hope everybody had a wonderful long holiday weekend. Since you're hearing this after the weekend, I hope I had a wonderful long holiday weekend. And I will see everybody next week. [music outro] If you have any questions, comments or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at rePROs Fight Back on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and want to make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you want to make sure to support the podcast, you can also donate on our website at reprosfightback.com. Thanks all!