The Supreme Court Term is Here…And A Storm is Brewing

 

The beginning of the new Supreme Court term has officially begun, and a storm of possible bad outcomes is brewing. Jessica Mason Pieklo, Co-Chief Content Officer of Rewire News Group and co-host of Boom! Lawyered, sits down with us to give us a holistic view of cases, tells us what to expect in the new court term, and highlights which cases we should be keeping an eye on in the lower courts.

A collection of cases over the summer gave us a peek into the health of the Supreme Court—especially the conservative majority’s willingness to facilitate the Trump administration’s agenda. Coming up this term includes a challenge to Colorado’s ban on conversion therapy (Chiles v. Salazar), a West Virginia ban on transgender girl’s participation in sports (B.P.J. v. West Virgina Board of Education), a case on no-knock searches by law enforcement, and a redistricting case in Louisiana (Louisiana v. Callais). Cases in the lower courts that are not yet on the Supreme Court docket (but could head there soon) include challenges to state shield laws and administration attacks to mifepristone and the FDA.

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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: Hey rePROs, how's everybody doing? I'm your host, Jennie Wetter, and my pronouns are she/her. So, y'all just a flag before we get too far into this episode. My allergies really got to me as we were recording this episode, like the day before. I've been taking my allergy meds and everything, so I feel fine. But I'm sure we've talked about this on the podcast before because it happens to me every spring and fall, but I get allergy-induced asthma. So, I get this wheezy cough that will, like, hang around for a month or so, which is super not fun. But it happens. Anywho, hopefully Meg can cut around it. It wasn't as bad as I figured it was going to be when we got started, but it still wasn't great. But I was able to mute and catch most of them. But just FYI. If I sound a little not great. I feel fine other than the wheezy cough. But also, it is October.

It is spooky season! I mean, honestly, y'all, it has been spooky season for me for a while. I'm definitely the, like, it hits September and I'm ready for spooky season. I have these really cute pair of flat Mary Janes that have skeleton feet on them. Like, it looks like your feet, right? But they're skeleton, they're super cute. I love them. And so, as soon as it hits September 1st, I bust those out and wear them as much as possible because they are just my absolute favorite. But I am also looking for spooky season book recommendations. I will [read] anything that you think is spooky season. So, I love a cozy witchy fantasy. I love horror. Anything in between, just send me your favorite recommendations for spooky season reads, and I will add them to my TBR. Like I said, I am a big fan of spooky season reading. I'm a big mood reader. It's one of those things that, you know, if you're on like BookTok or Bookstagram or whatever, and you see people who are like, this is what I am going to read this month. I am not that person. I am a hundred percent mood reader, and this is what I want to read right now. And I never know what my next read is going to be until I finish the book I was currently reading. And I look in my digital TBR and pick the next book. I cannot be the person who is like, these are these are the next three books I'm going to read. That is just not how my brain works. That is not how I enjoy reading. So, but spooky season, I am always in the mood to read spooky reads. So, and again, a big wide range of what that means. So, send me all of your favorite spooky season recs. You can reach out to me on social media. I'm at @JennieInDC on BlueSky. Or you can shoot me an email at jennie@reprosfightback.com. Yeah, I would love to get any and all spooky season recs. Thanks, y'all.

Okay, speaking of spooky season, it's a scary season, right? It is the start of the Supreme Court term. I know. Sorry, y'all. That was a bad transition, but it also feels right, a bit of a horror. So, we are going to do a Supreme Court preview episode, and I couldn't think of a better person to have come on than Jess Pieklo with Boom! Lawyered and the Rewire News Group to talk about all of the things this coming Supreme Court term. So with that, let's turn to my conversation with Jess.

Jennie: Hi, Jess. Thank you so much for being here. Oh, thank you so much for having me back.

Jess: Always a pleasure.

Jennie: I feel like I have to flag before we start that my allergies hit me all of a sudden, like, yesterday. I've been taking my allergy meds, but they go, it goes straight to my lungs, so I get that wheezy cough. So, FYI, everybody, sorry.

Jess: You sound fantastic.

Jennie: There's just maybe a little bit of coughing. So hopefully. Thank you, Meg, for editing around it. Okay, Jess, before we get started, would you like to introduce yourself and include your pronouns?

Jess: Sure. I am Jessica Mason Pieklo. I use she/her pronouns, and I am Co-Chief Content Officer, Rewire News Group, and co-host of the Boom! Lawyered Podcast with Imani Gandy over there.

Jennie: I'm so excited. One, love the podcast. I feel like I have to say that every time, but it's so true. It's, like, I never miss an episode.

Jess: Mutual Admiration Society here.

Jennie: Okay, so we are getting ready...this is coming out on the very near the very beginning of the new October term for the Supreme Court. How are you feeling coming into the term? You know, I know dangerous questions.

Jess: The vibes are not great. I think this is a really important term, not necessarily because there's 50 marquee cases on the docket, although there are some big cases on the docket, but because we had a really important summer where I think the justices revealed a lot about the health of the institution of the Supreme Court, of the health of the relationship between the justices themselves and the direction that the court is going in terms of facilitating Trump administration agenda and accelerating the authoritarianism that has taken hold in this country. So, jokes aside, I would say that, you know, this particular term is really cloudy in terms of an opening. You know, we haven't even started the term in terms of its like formal opening and oral arguments, and we've already seen the justices bless— you know, the conservative majority when I say that, I feel like everybody knows that, but let me just be very clear what I'm talking about is is the conservative majority here— we've seen the conservative majority bless racial profiling in ICE detentions, and we know that there are cases on the docket that are teed up to make that worse, let alone the repro spaces and what is bubbling up that could land on the court's docket as well. So, you know, I think by the time we get to June, we will see sadly some of the longer-term effects of the court's decisions around things like executive power and detention and extradition, things that, you know, we're not always talking about on a repro podcast, but are absolutely part in that framework, really come to fruition. And then, you know, we'll be in an election cycle. So, it's fraught right now.

Jennie: The things I tried to not think about. Yes, election cycle is coming. Okay, so this is coming out on the day where they're hearing a case related to conversion therapy. Do you want to tell us a little bit about that case?

Jess: Sure. So, as I had sort of suggested, there are a couple big cases that are already teed up, and one of them is this challenge to Colorado's ban on conversion therapy. And it's a case called Chiles, I think I'm saying that correctly, v. Salazar. And you will not be surprised to hear that this is an Alliance Defending Freedom case. They are the conservative litigation firm that cooks up most of the anti-LGBTQ and anti-abortion litigation that we see in the country, them and the bucket fund. And this is a case that involves a Christian counselor by the name of Kaley Chiles. And, you know, Colorado, like many states, had passed a ban on conversion therapy. It is a practice that has been disavowed by mainstream mental health medical organizations and, for folks who aren't familiar with it, can be very abusive in its most extreme cases. And it is essentially everything from, you know, trying to pray the gay away in therapy sessions to more extreme measures and behaviors. And the testimony that folks have shared having been subject to conversion therapy and the damage that it's done is really heartbreaking in the briefing. But at any rate, Colorado, like a lot of states, had a ban on conversion therapy on the books, and it was challenged as a violation of free speech. This Christian therapist argues that, you know, she has conversations in her therapy session that are God-centric and and driven, designed to basically help, you know, quote unquote, "help her clients avoid their LGBTQ impulses" and, you know, basically convert them away from being gay, lesbian, bisexual, whatever is the "deviant" sexual behavior that they're talking about in that therapy session. The 10th Circuit Court of Appeals, the ban was blocked. The courts said the lower court said this isn't restricting your speech, it's a ban on conduct, right? Conversion therapy is a type of conduct, and there's a different constitutional standard that applies when regulating conduct versus regulating speech in this arena. The Tenth Circuit agreed, and that case has been appealed up to the Supreme Court, and the court took it because this is an area that for a little while was really hot in terms of litigation, and then it kind of cooled down. And as a result, we have what feels, you know, almost quaint by legal norms now, which is a good old-fashioned circuit split. So that both the Ninth and the Tenth Circuit Court of Appeals have held that laws like Colorado's that ban conversion therapy regulate conduct, not speech. Meanwhile, the Eleventh Circuit and the Third Circuit have said no, that's not the case. These are, you know, targeted regulations on speech, and so there's a different constitutional standard. The Supreme Court has decided that it will step in and resolve that circuit split. And that is a very traditional and normal role for the court to do. Way back in the olden days, I used to show up on podcasts like yours and talk about the court resolving circuit splits in whether it was around abortion restrictions or other types of laws in these areas. And then the first Trump administration happened, and the court became so captured by ideologues that it went off the rails functionally in terms of norms. The use of the shadow docket exploded, and the way that law and policy got crafted through the court changed. So, in some ways, this is like an old school constitutional fight that we haven't seen in a little while. That's kind of refreshing from a legal journalist standpoint. However, we have the court that we have, and I am not anticipating that this goes well for the folks who are defending Colorado's ban on conversion therapy.

Jennie: I mean, honestly, I it's just to the point of like, yeah, I anything around these types of issues, I just always have a bad feeling about, and not just the like low-level worry I used to have back in the day when you were never sure, but now it's, like, I'm pretty sure. And yeah. Just yeah, it's heavy.

Jess: Yeah, you know, and I think one of the conversations that I hope we start to have more of both in, you know, sort of the political media and in, you know, legal media, and as the public clues in more and more to just how unchecked the Supreme Court is right now is the harm that is happening in the opinions. And we talk about these, like, you know, obviously the harm of Dobbs and whatnot, but really the harm to the rule of law. And I actually am a little optimistic that this is starting to happen. Not too long ago, NBC reporters spoke to 10 federal judges on the record. And I know that doesn't seem like a lot, but 10 federal judges used their government name to go to NBC News. And these were judges that were appointed by both Democrats and Republicans to say what the Supreme Court is doing right now in issuing these major rulings on its shadow docket around immigration and detention, you know, around executive power, around what have you? Let's not forget that, you know, Texas's SB8 went into effect as a result of a shadow docket ruling, right? These judges have said publicly now this is not okay. It's undermining the institution, it's undermining the federal judiciary generally, and it's undermining the rule of law. That is a sea change in terms of the institution of the federal judges and the federal judiciary. And I want to bring attention to it because they should hear, their clerks should hear, the staff at the courthouses should hear that this is a good thing to do, particularly those judges who were appointed by Republican presidents, because those are the folks we need to start calling their people in. I mean, you know, that if we're being very, very true. So, you know, in the case of the Colorado conversion therapy ban, I am pretty confident that that ban is going down. My concern is what harm is going to be crafted in that opinion now that the justices, the conservative justices, don't feel that they have to be checked, right? Anytime there's been a little bit of a check on these justices, they have lost their ever-loving mind. Amy Coney Barrett spent the entire summer complaining about how people were mean to her with the Dobbs decision and how being a Supreme Court Justice meant that your opinions aren't necessarily popularity contests and all sorts of weird stuff to be complaining about on a book tour. And I think that should tell folks that they know how unpopular they are, and they really want to be popular. So, that's gonna hurt.

Jennie: Yeah, I think that's the one thing that is really important in this moment is, like, how broad or narrow they go in some of these rulings and how much additional harm can be created with the way they write them.

Jess: Yeah, I mean, if Justice Alito has a majority opinion that says, you know, practices like conversion therapy are subject to a lower constitutional standard and also manages to pepper in some sort of like, you know, religious preferences towards, you know, Christian, particularly conservative Christian practices, that opens the floodgates for all sorts of other stuff. I mean, right now we have the superintendent of the Oklahoma Public Schools trying to absolutely just put the Bible into their curriculum, and it's been beaten back a couple times by the courts there. But, you know, there is an exceptionally emboldened evangelical class right now that also understands this is, you know, they've got a shot at really enshrining some things that they have been trying to do since the Roosevelt administration, right? Like these people really have been working on this for a long, long, long, long time. And their heirs are finally seeing some policy successes, and they are not gonna just take little nibbles anymore. They are going to go for whole bites when they can.

Jennie: Okay. There's another case I wanted to touch on, and that is the one around trans sports and a trans sports ban. I feel like this is one of those, this is one of the areas that I feel like I've been getting really frustrated with in the broader discourse around trans girls playing sports, yeah. And a lot of willingness to be like, this is an okay place to have this conversation and like it's fine to, like, open that door, and I just want to scream, talk to somebody who worked in abortion, talk to somebody who worked in repro about why that is not okay. Anywho, that is where my head is at when I think of all of these things. So, let's talk this case.

Jess: Yeah, so this is a case I think that kind of snuck up on folks. Imani and I actually covered it at the appellate level. It involves a student by the name of Becky Pepper-Jackson and a lovely-

Jennie: I know, it just makes me smile. Sorry, y'all. You couldn't, you can't see the video, but it just made me smile.

Jess: I mean, you know, she's a sweet kid. I mean, it's a sad case. West Virginia has a law that bans trans girls from participating on all girls' sports teams from middle school through college, writ large. It defines participation based on biological sex only. You know, this is a blanket ban. And the Fourth Circuit had blocked the ban. It lost at the lower court to the ACLU as representing the student and the family here because it violated Title IX and Equal Protection Clause of the Constitution pretty clearly. And this had been consolidated with another case. That student has since actually asked to have their case, you know, pulled out of it because they have graduated out. And this is actually an issue that comes up for trans students in Title IX challenges, and particularly is they often age out of their challenge because the law is not quick, it's not speedy. Justice does not move fast if it moves at all for trans kids. And so that's, you know, some of the background there. West Virginia, after the Skrmetti decision, petitioned the court to take this case up, and they did. And so, the court will be answering whether the question of whether or not West Virginia's ban violates both Title IX and the Equal Protection Clause of the Constitution. And so, this is a case that again has the possibility to create some precedent that will take a long time potentially to work around. You know, I don't know if the status of this case will change before oral arguments given that one of the parties has pulled out. I, you know, but West Virginia is the party that petitioned the court to take it. And so right now we've got it scheduled or we've got it, you know, in in briefing. And, you know, I think it's important to note a couple things. There are a handful at most of trans athletes in this country, let alone trans kids who are trying to play sports. And the evidence is overwhelming that the only people who give a crap about this issue are politicians and parents that they can whip up into a fever about. This is not an organic issue that comes up on playgrounds, on club sports. 99% of the time, kids are just kids. And it's unfortunate that a group of activists and adults feel the need to bully them constantly.

Jennie: Yeah, to me, it just boggles my mind like just let the trans kids play sports. Like, I don't- they just want to do the things their peers are doing, they just want to have fun with their friends. Like, I don't- this is just like state-sanctioned bullying. I don't understand.

Jess: And look, I'm 51 years old, right? I am roughly the same age as Title IX is another way to look at it. And I grew up as a young girl in the Midwest who wanted to play sports. And none of the people, and I did, and I played club sports, and my kids played club sports, my daughter plays club sports, none of the people who are concerned about women's sports in the political arena actually care about women's sports. They have not been here advocating for any sort of equality or fairness and access to resources, to facilities, to all of the things that Title IX is supposed to guarantee women an access to education. None of the folks who are raising a fight against trans students accessing those things gave a shit about any of this to begin with. In fact, they were often Title IX's largest attractors. So it is, again, exceptionally wrong to use trans kids as the straw man here. They don't want access to girls' sports generally. And if they can break Title IX by whipping up fear and ignorance around trans kids, that's how they'll do it.

Jennie: And just like with abortion, [targeting] young people is where you start to crack open the case of restricting all gender-affirming care. You start going and singling out young people, a place where people can feel discomfort. And then, oh, if that's okay, okay, then we can split this a little further. And we'll make sure that, you know, people under 19 or all these other ways where you can restrict access. Don't cover it with insurance or all of these ways to other it. And that is how you get to an abortion ban. That is how you get to bans on gender-affirming care. So, it is not just this simple conversation we can have around young trans people playing sports. It is all part of this bigger fight over rights. And this is just the gateway where they can find a little crack that they can exploit.

Jess: And just to yes, and that point, I'm old enough to remember the Obama years where states actually lost economic opportunity if they were attacking trans folks and trans kids in particular, right? I mean, North Carolina went through this. It used to be exceptionally unpopular to do this. And there was an understanding that extending the promise of a burger fell of dignity to same-sex couples was going to take work, and there were people behind it to try and make that work happen. And the backlash from that has been so furious. And the retreat from supposed allies has been so fast that I think that that is kind of a part of the conversation that's getting lost. Like, it is not a coincidence that folks were able to so quickly coalesce around this as an issue because they had so recently felt economic pain. And that was, they were not gonna stand for that.

Jennie: Okay. Is there anything else you're keeping an eye on right now?

Jess: Yes, I am. So, you know, I had mentioned the decision on racial profiling in immigration detention. A companion case, it's not really a companion case, but it's a yes and case to that. And I'll just hit a couple of these very quickly because literally it's not great. You know, is whether or not, you know, or to what extent the law enforcement can um enter your premises without a warrant at all. So, no-knock searches. And when we couple that question with an authoritarian administration and an attorney general Pam Bondi, which— I can't believe that's a true statement. You know, just a little sidebar here. Today I was actually thinking about how at least when Jeff Sessions was attorney general, we had an understanding that he knew the law. He absolutely didn't agree with it and was gonna do whatever he needed to do, but he knew it at least. Pam Bondi, man. I still cannot believe that woman is an attorney general. Anyway, so you know, the criminal justice docket is one that we don't follow very closely over at Boom! Lawyered, but it is one that is making a lot more noise in the background, in particular because there are some issues coalescing around that. The Supreme Court kicked back down for arguments of the Louisiana redistricting case. And so, one of the big questions that the court is grappling with and is being forced up is to, you know, what extent after the Voting Rights Act has basically been decimated, can any majority black voting districts exist functionally? And so, this was a live fight in Louisiana, and the court had ordered additional briefing and kicked it back down for argument this term. That case will be going on while the redistricting fight in places like Texas and California and now Missouri is really heating up. And so, anything that is going to be touching the upcoming midterm elections and looking ahead towards a potential presidential election as well is something that is absolutely on my radar. Of course, we've got the, you know, Big Terrible Bill and the “Defund” Planned Parenthood provision, which is really broader than Planned Parenthood, but it affects Planned Parenthood specifically. To the extent that that kind of funding fight can, you know, find its way to the Supreme Court. I don't feel great about that, particularly, you know, after Medina last term. And, you know, in the lower courts, and again, you know, this isn't on the docket yet, but these are just, you know, what are the sort of what's the heat map in terms of litigation right now? We have tests on shield laws that are going to heat up. We have this administration doing funny business with the FDA and mifepristone that could result in some challenges or legal action. So, there are possibilities for some quick turns at the court around abortion policy specifically. And yeah, so, you know, those are sort of the high-level assessment. I really think, in particular, the Colorado conversion therapy case, not just because it's early in the term, but because it's one of those cases that can, you know, sort of spiral into other areas policy-wise, is one that and it's not getting a lot of attention because of the daily horrors from the administration. It's one of those, like, sleeper cases that I hope folks start to get more interested in and curious about and learn more about.

Jennie: Yeah, I feel like I haven't heard much about it. Even when we were first talking about doing this, like I went and did like a Google search and was utterly shocked by the lack of information out there, and the only hits were like right-wing sites, and I was- it surprised me. I was like, did I do- did I, like, type something wrong? Did I like…

Jess: No, you did not. You know, you did not. It's just, you know, when the administration is occupying the nation's capital, and when, you know, ICE is swooping up folks and every other... it's a lot. I think folks just don't even have the capacity to read the docket right now.

Jennie: Okay. I figure you have things to say, so I will ask Amy Coney Barrett's book. And her book tour.

Jess: Should I hate-read it live for people? Oh my god. Like, should- I was thinking about this. I like maybe it's a fundraiser opportunity, right? Like, if I raise X amount of dollars, I can like, I don't know, like Mystery Science Theater 3000 a live reading of it or something. No, I mean that might get me a defamation lawsuit is what that might get me. But there's gotta be-

Jennie: I would listen.

Jess: So no, I mean, I would hate-read it. I'm gonna just say I would hate-read it. I would offer up for fundraising content, hate reading it out loud in my aim, my best Amy Coney Barrett impression. So, listeners, hit me up if that's something you think you would pay money for for a good cause. Yeah, I mean I haven't, I bet I will. I mean, let's be honest.

Jennie: Okay. I think the other thing we had talked about maybe touching on was retirements and the possibility of retirements, which again, yes, not to pre-stress out or anything.

Jess: Like, look, some of those justices aren't young. No. And I like that's a fact. And we know conservatives will absolutely strategically retire in ways that liberal justices don't. So, and the reality is, you know, some folks have been on the bench for a while. So, while everybody has clerked up, so there's no nothing imminent right now, everybody's prepped for the term. I do think that we are ripe for some turnover with some justices. I am concerned about Justice Sotomayor's health generally. And so, I think that, you know, from the sort of centrist and liberal three, she would be on my list. My dark horse candidate for a retirement in the near term is Chief Justice John Roberts. And I am constantly ruining people's days when I start talking about this, so I'll just do it for you all who are still listening. Here's my take on Roberts is this is a man who is at his core, a partisan. His entire career is partisan politics. Even as Chief Justice of the Supreme Court, he is the chief GOP partisan justice there. So, he's also young enough of the conservative justices to still enjoy a life off the bench, to, you know, do the speaking gig. To, I don't know, teach some seminar at Oxford or something, you know, to just do those sort of bougie things that retired law professor types do and make a decent side hustle at it, right? And guarantee that a Republican appoints his predecessor. So, if I was taking the dark horse odds there, I'd say we could see Justice Chief Justice Roberts retire sooner rather than later. Alito and Thomas, sure, but they're having too much fun, and they wield too much power right now.

Jennie: Again, not a today problem. But yeah, I mean, just enough thinking through judiciary and like beyond the Supreme Court, just watching confirmations and watching things move maybe slower than I had maybe expected, like thought, but still not great. Like, yeah. Okay. So, I always like to end not with “everything's terrible,” which is every episode. So, what are some things people can do? How can people get involved in this moment?

Jess: There's always a lot that can be done. And you know, one of, and so really, you know, folks have to— this is something we talk about on Boom! Lawyered all the time— find a lane and understand that you don't have to be in every lane. And sometimes you can also switch lanes. That's fine. But really, you know, find a lane. For some people, that lane is donating resources. And so, if that is a lane of yours, I would just encourage folks to donate as locally right now as you can. A lot of the disruption at the federal level is fully rippled through to your communities as well. So, you know, we haven't talked about the DOGE-ing of this nation in a while, but you know, there are nonprofits that serve local communities that are really struggling right now, folks, you know, who deal with, you know, family violence and um serve folks on the margins and unhoused communities and things like that. Give them your money if you can. If you don't, and that is fine, um, find time. Is there a space that you can volunteer at? This is just good for the soul. But right now, really importantly, it's making connections in the community. I've referenced it a couple times, but we are very clearly in an authoritarian era in our country's history, and that succeeds by dissolving and disrupting local connections and breaking apart local communities. So, the extent to which you can really deepen and strengthen your local fabrics is really, really important and encourage folks to know your neighbors, have conversations with them, and create those close networks right now. That is an important time or an important thing to be doing just generally. And I'm gonna sound really corny here, but lean in with some kindness and joy in this matter, in this time as well. The folks that are trying to govern from a place of force and power and fear do not want us feeling happy and they do not want us feeling joyful because those are the antidotes to authoritarianism. And lead with that.

Jennie: And they want you to feel overwhelmed and paralyzed, so that you feel like there's nothing you can do matters— when that is absolutely not the case.

Jess: That's not the case. It is fine to log off, you know. Jennie and I were talking at the upfront about, you know, being online less as a way to do more in community, and I think that there is value there.

Jennie: Yeah. Protect yourself. You can't help if you burn yourself out. And if you get overwhelmed by all of this, it's okay to take a step back and jump in. This is definitely, I know it's trite, but definitely a marathon, a relay race. It is not you need to do all the things, so find the things that work for you.

Jess: Yeah.

Jennie: Jess, thank you so much for being here as always. It was such a pleasure to talk to you.

Jess: Thank you so much for having me back. I love it. It's one of my favorites.

Jennie: Okay, y'all. I hope you enjoyed my conversation with Jess. It was so great to get to talk to her about a couple of the upcoming Supreme Court cases and to think through this term. And with that, 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!