Why Texas's New Abortion Law and the Upcoming SCOTUS Case are Stressing Us Out

It’s no secret that 2021 has seen endless attacks on abortion access. Most notably, Texas is attempting to not only ban abortion at six weeks but allow anyone in the U.S. to sue anyone involved in providing abortion care or helping someone in Texas access abortion care. Jessica Mason Pieklo, Senior Vice President and Executive Editor at Rewire News Group and co-host of Boom! Lawyered podcast, talks to us about the abortion ban out of Texas and the critical Mississippi case making its way in front of the Supreme Court in the fall.

Texas’ new abortion ban seeks to ban the procedure at six weeks, before most people are aware they are pregnant. Normally, abortion bans like this require the enforcement of a state-actor, such as an attorney general or prosecutor. Instead, this statute empowers anyone as able to enforce this law. In short, Texas’ new law allows citizens to become pseudo-vigilantes, allowing the reporting of anyone who “aids and abets” someone in accessing an abortion. “Aiding and abetting” could include helping someone pay for care, driving someone to an appointment, or watching someone’s children while they attend an appointment. If this law goes into effect, patients in Texas would be forced to leave the state in order to access care. The law will also force abortion funds and other organizations to re-assess whether they feel able to operate.

This fall, the Supreme Court will hear a case that proves a direct challenge to Roe v. Wade. Roe v. Wade and Planned Parenthood v. Casey has previously established the unconstitutionality of Mississippi’s recent 15-week abortion ban, yet the Supreme Court has decided to hear it, signaling a troubling outcome. While it takes four justices to decide to take a case, it takes five justices to decide to change the law. Because no federal courts have disagreed with precedent before, there’s little reason why the conservative justices would want to take this case without the desire to change the law. With a 6-3 conservative majority on the Supreme Court, this case proves to be particularly frightening.

If the Supreme Court upholds Mississippi’s 15-week ban, Louisiana’s 15-week ban will also go into effect. It is likely that the language used to uphold these bans would be applied to 12-week bans, 8-week bans, and 6-week bans across the U.S.

Links from this episode

Rewire News Group on Twitter
Rewire News Group on Facebook
Jessica Mason Pieklo on Twitter
In Texas, Abortion Snitches Don’t Get Stitches—They Get $10,000

Transcript

Jennie: Welcome to rePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Welcome to this week's episode of rePROs Fight Back. I'm your host, Jennie Wetter, and my pronouns are she/her. So y'all, there's been so much happening and so much stress with all of the things this year and a half has been exhausting. And, you know, it's been really hard to prioritize taking time off and prioritizing my own mental health. That's not something I'm super great about. So I took a mental health day early last week and it was delightful. I didn't really do anything, you know, really exciting. I didn't look at my emails. I mostly avoided social media. And so it was delightful to have a long weekend, but you know, it was important not just for me and for my mental health. I'm also in a management position at work. And to me that means I also need to be leading by example. You know, it's all great if I tell my people that report to me, that they need to take time off and, you know, take care of their mental health and, you know, taking mental health days is important and please feel free to do them.But if I'm not doing the same, they may not feel like it's actually encouraged. So I'm really trying to be much better about it and do the lead by example thing, right? So taking the time off so that others will as well. And that way we are all supporting and taking care of each other. So that is something I am trying to work on right now is being better and taking more time away. This work will continue whether I am there or not. And so it is better to take the time and take care of myself so that I am here for the long haul, because…there is a lot going on and a lot to do, and a lot that we are stressed about, but if I'm not in a good place to fight and to help that doesn't help anybody. So it's really important that I am not just prioritizing my mental health, but trying to encourage those on our staff and other people to prioritize theirs as well. We need to really take care of each other and find what works for you.

Jennie: So it's just, you know, I've talked about like the things I do to try and take care of my mental health. And I feel like one of the ways I can tell that I have, you know, burning out a little bit is that, you know, even the things I normally do that I find relaxing. So, you know, I've talked a lot about my baking adventures is like the last couple of weeks I have just like, not wanted to do it. Like I'm just, even at the point that like things that are normally relaxing for me, I've just been like, “Ugh, that just sounds terrible.” So, you know, the last couple of weeks I haven't done any baking. I mean, I made something from a box mix one weekend, which, you know, was delightful and delicious, but you know, not the same as what I've been doing and I need to be taking care of myself. So that way I can do the things that normally make me happy. So that's my goal is to be better about it all. So hopefully, you know, putting that out here will also help me hold myself accountable. Right? You all know that I'm trying to do it. So maybe it will make me more likely to do it and step up and lead by example. So this week's episode, I am super excited about. I got to talk to the wonderful Jessica Mason Pieklo at Rewire News Group. And we talk about a lot of very stressful things. I'm sorry, y'all this is definitely not one of the upbeat episodes, but it's a really important one. And we really kind of get into the weeds on a couple of things. We talk about the Texas abortion law that is not in effect yet, but is really big and why it's so different and so scary. And we also talk about the upcoming abortion related Supreme Court case that they will be hearing this fall and everything in between. So it's a wonderful conversation, but like I said, a little stressful, but we do have lots of things recommended that you can do to, you know, take back some of that helplessness, and actions you can take at the end. So I hope you all enjoy my wonderful conversation with Jessica.

Jennie: Hi, Jess. Thanks so much for being here today.

Jessica: Oh my gosh. Thank you so much for having me back. It's always so much fun to chat.

Jennie: I know I am so excited to talk to you about this. I mean, it's all terrible, but like of the people that talk to you, excited to have to break this down. So let's start with what, so Texas passed this new extreme abortion ban. What is it?

Jess: Yeah, that's an excellent question. Um, first of all, Texas, we love you. I feel like I should say that like at the upfront, cause we're about to really get into it with what's going on in the state. And I don't want folks to feel like we feel a way about Texas other than a lot of love, but the lawmakers in Texas are a little bit off the chain. So they passed an abortion ban, which should sound familiar. Right? Texas is frequently in the business of passing abortion bans about Texas. They like abortion bans. So this one is bonkers by even Texas standards, so we can break it down a little bit. So first of all, it purports to ban abortion at about six weeks. So that's when most people don't know that they're pregnant at that point. I tell this story frequently, you know, I have had two pregnancies that went to term. And the second one, you think that like by the second one, I'd have some sense of what was going on. No, I was fully a month further along in my pregnancy than I thought I was by the time I actually figured out what was going on, much to the surprise of everybody who was involved in that situation. So, you know, six weeks is really at a time when most folks don't realize that they're pregnant. And importantly, it's at a time… that first like 10-week window is at a time when most folks are actually terminating pregnancies in Texas as well. So when we talk about it being a total ban, that's a total ban, right? Like if you, if you don't know you're pregnant and also you're timed out…by the time you find out that [you’re pregnant] that works as a total ban. Okay. So, so that's bad, but that's not unusual. Lots of states have tried to ban abortion at six weeks and you know, federal courts have said, no, that's a pre-viability abortion ban, and those are unconstitutional. So no. But Texas’ bill does something very different. And this is what's so alarming and it's a little bit in the legal weeds. So normally laws like this, abortion bans require a state actor to enforce it. Who's a state actor? That's someone like the attorney general, a prosecutor, you know, somebody who represents the government to come in and say, “Hey, you're doing something in violation of this statute and don't do that”, right? Like that's a very sort of like baseline example. What this statute does though, is empower basically, anyone, strangers, to enforce the law. And so Imani Gandy and I over at Rewire News Group, talk about this as sort of deputizing citizens to enforce laws. And we don't do this like uniformly. We have agreed that this is not a good idea, right? We don't want random folks just feeling like they are empowered with the authority of the state to go in and tell people to stop doing things that usually doesn't work out well for folks who, you know, happen to be women, folks who don't identify as cis white guys, you know, and that's what Texas’ law does. Now. The good news is Texas’ law is not yet in effect. It's set to take effect September 1st… advocates have filed a lawsuit challenging it. And so we hope that a federal court will block this law because it's blatantly unconstitutional and it's a wild power grab by anti-choice forces in the state. But that remains to be seen if that will happen.

Jennie: Yeah. So I mean, both parts of the law are terrible. Um, and I think you, something we always talk about on this show is like these abortion bans aren't happening in a vacuum. So like not only are you pregnant at six weeks and may not know it, but like Texas has a waiting period. Like there's, there's not a lot of clinics after so many closed. Um, you know, before the Whole Women's Health decision. Like it's, you know, you have to take two long trips. So like it's just this… like, no easy access. And now they moved the timetable back.

Jessica: And this bill, even if it doesn't take effect, has already moved the window in terms of the conversation around what folks who aren't engaged in this issue on the day to day like you and I, and the folks listening to this podcast are, what it's done is in their mind is shifted that window also, because folks are talking about 20 week bans, right? Like 20 week bans are things that the courts may be asked to uphold. And if you are somebody who is casual consumer of news, for example, and identifies as pro-choice, to you, 20 week abortion ban may sound totally reasonable when compared to a six week abortion ban, even though out of the gates, they are both from the jump unconstitutional. And so in the media, we have so much work to do just to explain that, and folks are tired right now. They are overwhelmed. I mean, we were chatting before we hit record about like, oh my gosh, thank you for all the grace you've shown me just trying to schedule this because my life, as a person in the pandemic with kids right now is total chaos. And so like, these are the things that keep me up at night as we're talking about the Texas case because in the Texas law, because so much damage has been done without the law, even taking effect. We ran a piece about how, you know, recently folks were like, I guess Texas has banned abortion. And people don't know that it's not in effect despite all of the ways we try to, you know, inform people and do all of that. And so, you know, just as the narrative continues, not just around Texas, but you know, as the Supreme Court gears up to hear oral arguments and Jackson's Women's Health, like the, the conversation around abortion is going to just get stickier and messier, particularly for the people most impacted by it. And I'm stressed.

Jennie: Yeah. Really good point. Cause like, you've definitely seen this happen in like the way media covers it, right? There's this bright, new shiny six week abortion ban and everybody freaks out because, rightly, it's basically a complete ban on abortion and then it doesn't pass or now it does. But then the state then passes like a 15 week or 20 week ban, like this little light coverage. And so you may not know that, oh, this other ban that is just as unconstitutional was also passed, right?

Jessica: Right. And you know, we saw it with, with the Texas bill, you know, I saw a lot of reports about how, you know, there's a bounty associated with this, you know, like effectively turn people in and get paid 10 grand as a result of it. That's terrifying. Right. And so, but we also have to be reporting that responsibly within the media, because one thing that I will say for certain as someone who has spent over a decade in this space in the media, is that we're going to see copycats of this. There is no reason to think that there is not a lawmaker in another state, you know, whether it's going to be Kentucky, whether it's going to be Arkansas, whether it's going to be South Dakota, North Dakota, Missouri, like we can go through them to say, you know, what's a really good idea for our next legislative session, abortion bounties.

Jennie: Oh yeah. We for sure see that, right. Like abortion numbers still shows up in one state and now like all these other states have proposed. Um, but yeah, so, you know, and again like the bounty is all of the attention and, and I think maybe it's worth talking about a little bit of like what this would mean for providers for abortion funds. Like it is pretty wide ranging. Cause it's not just the patient or the clinic or it can impact a lot of people.

Jessica: Yeah. I mean really the goal, it appears by anti-choice lawmakers in drafting this kind of language is to cast as wide a net as possible. So, you know, the law talks about things like aiding and abetting when that's, that's functionally the legal term for helping. Right? So think of aiding and abetting somebody getting an abortion and all of the ways that you can help someone, whether that is direct aid in the form of financial services via abortion funds or transportation or gift cards to pay for groceries, which are things that, you know, for example, direct aid services can often help with. Cause it's not just paying for the cost of the procedure. If you've got two round trip trips, you've got to take time off work, like transportation expenses, hotel rooms, food for your other kids. Cause we know most people who have abortions already have children at home. So all of those things, if you are in that pool of social services, functionally, then you could be swept up in this. If you are in the business of giving folks information, you could be swept up in this. And that's really terrifying. Now there's a lot of reasons to believe that all of those overreaches are unconstitutional. And really, we have to hope that the federal courts do their job here. But that's also a really good opportunity for us to talk about the fact that we should not be hoping that our institutions hold the bare minimum, not even the bare minimum, like this is begging for table scraps, right? To like not have a bounty put on my head for offering services to folks, to access health care. Right? Like, I don't know, I've lost my words. I'm so upset by all of that, but it's, you know, but that just to really color in the lines for folks who may be like overreacting or like really, you know, we're used to, unfortunately, providers being targets, we're used to patients, unfortunately increasingly becoming targets. This is really the first time that anti-choice lawmakers have said, if you are in the business at all of even acknowledging reproductive healthcare exists and people are entitled to it, we are coming for you.

Jennie: Okay. So what, what does that mean for people living in Texas? If this were to go into effect, right? Like, so we've talked about the providers and to people offering aid, but what would this mean for people who need access to abortion care?

Jessica: I think it means that most people will be leaving the state too. I mean, I, if we're talking practically, you know, you are really faced with terrifying legal landscape and that's the point, right? Lawyers talk about these kinds of laws, having chilling effects on the exercise of rights. And that's really what this is about, right? This is, you know, this Texas law is a statewide version of a local ordinance that was passed in Lubbock that to declare Lubbock a “sanctuary city for the unborn”. Right? And so this sounds like a political stunt and in a lot of ways, it is-- other cities in Texas had tried this before. But what was different in Lubbock was that they actually had an abortion provider in Lubbock. So this was the first time where, you know, local ordinance like this had actually put a very specific target on a provider, as opposed as a sort of aspirational nonsense, Texas took that Lubbock ordinance and applied it to the state. And so if I'm a provider, I would be looking very seriously about whether or not I am continuing to do business in this state. That's a chilling effect, right? If I, if I'm an abortion fund, I am going to be looking very practically if it makes sense for us to continue to operate. And that's not to say that people should be shutting down, we don't want any of that. But Jennie, this is a conversation, right? Like this, this is what the anti-choice community is forcing us to do, have these conversations. And so here in Colorado, we know for example that when the state screwed around with abortion access in the first wave of COVID shutdowns, we had a flood of patients come to us from Texas. And I mean, it was it's documented. It's not like we had to guess about that. They're like, “Nope, we can't get care in Texas. So we have to go to Colorado.” That's expensive. It also puts a burden here on us in Colorado. Not that we won't take patients who need care, we'll take whatever patients we can. But you know, there are only so many providers across the country to go around. And so, you know, we are going to see the regional points of access that are already stressed, become even more stressed as people are looking to go out of state, you know? Cause where do you, where do people from Texas travel to? Colorado, New Mexico, Louisiana, Arkansas, Tennessee, Illinois. Those are far distances. Texas is really big.

Jennie: Yeah. And again, that just heightens already existing disparities, right? So the people that are going to travel are the people who can afford to travel. And that leaves behind a whole bunch of people who probably were already struggling to access care in the state. And it just leaves so many already marginalized people behind.

Jessica: Absolutely. Absolutely. I mean it's yeah. There's nothing good.

Jennie: Okay. So abortion is still legal in Texas. Please. You can still go. It's all, it's still legal in all 50 states and there is a lawsuit in the works. Okay. So that brings us to the next big bucket of nerves. And that's talking about, there's a big abortion case that's coming up before the Supreme Court this fall, there really is the biggest one in 50 years. I mean, I'm stressed. Just, I'm not going to tell you not to be stressed.

Jessica: Yeah. This is a time to stress. If ever there was a time to stress about the future of abortion rights, as far as the federal courts are concerned. I mean, it was 10 years ago, but now really it's now like there's no hyperbole here. It's a direct challenge to Roe vs. Wade. There is a coordinated political campaign going on in the briefing and it mirrors attacks that we've seen in places like the Voting Rights Act, for example. So it's a playbook and the difference is there is a solid six to three anti-abortion majority on the Supreme Court. So that means that we're not even playing for the margins mostly.

Jennie: Okay. Sorry. Tell us a little bit about this case and why it is so scary.

Jessica: Yeah. Okay. I feel like I needed to know deep breath, everybody. Sorry. It's really bad though. So, I mean, so most folks probably know this case involves a lot out of Mississippi, Mississippi trying to ban abortion at 15 weeks. Right? So when we were talking about that Texas ban and folks are like, “I don't know, 15 weeks seems reasonable. Look at what Texas is doing.” We're going to see that argument. We will see in the fall when the Supreme Court hears this case, folks say the Mississippi ban is totally reasonable because all of these other states are out of their minds doing this stuff. So I just want folks to be prepared for that because it's going to happen and it's going to be successful in some circles. So the Mississippi law tries to ban abortion at 15 weeks. There is absolutely no disagreement in the federal courts that this is unconstitutional. And what do I mean by that? I mean that there is not a single federal court opinion that has upheld this Mississippi law, and I'll even go further. There is not a single federal court opinion that has upheld any law like Mississippi's at all. Okay. So despite how conservative the federal courts are, despite, you know, I've got an entire brand built around talking about how bad the federal courts are, for real bro. The reality is the federal courts have looked at laws like this and said, no, they don't fly. Why don't they fly? Because Roe vs Wade and Planned Parenthood vs Casey say that they don't fly. So that's where we have been up until May when the Supreme Court said, you know what? We want to take a look at this. So why is that alarming? Well because no federal court thinks that this is unconstitutional. The Supreme Court is a court of what lawyers call limited jurisdiction. So that means that there are only a couple times or a couple of ways in which the Supreme Court gets to flex its power. And one of those ways is when the federal courts are in disagreement, around issues of constitutional law, we call that a circuit split. So if, for example, the fifth circuit court of appeals had said, “we love Mississippi's 15 week ban. Totally let that thing go into effect.” But the ninth circuit court of appeals had said, “you know, Idaho's 15 week ban…” Idaho, doesn't have a 15 week ban. I'm doing a hypothetical here. “Idaho's ban is bad. We're not going to let that go into effect.” That would be a circuit split. And that would make sense for the Supreme Court to step in and say, you know what? We have some federal court saying this law is constitutional and we have other federal courts saying an identical law is unconstitutional. That causes confusion. We need to settle that, right? Didn't exist here. Didn't exist here. The other thing that should really terrify folks, and this is a little bit of a sound bite, but it's a true sound bite is that it takes four justices to decide to take a case, but it takes five justices to decide to change the law. And so there is no reason given what I just said about no federal courts disagreeing, that the conservatives would take this case unless they were planning on changing the law. Because why on earth, for example, would Amy Coney Barrett and Brett Kavanaugh and Clarence Thomas and Sam Alito get behind taking up a case that cemented as super precedent, abortion rights in the federal constitution. They don't, that is not their M-O. So if advocates are in a headspace where they're trying to find a way where this works out, well, I need us to do the math because we have a year functionally between now, when we're having this conversation. And when a decision is going to come down from the Supreme Court in this case, and that gives folks an opportunity to agitate at the local and state and federal level for protections, because we have no reason to think that it is good news coming down. And if we try to wish cast anything else, because that reality is too terrifying, is too scary to really look in the face. Then we are really doing marginalized folks a tremendous disservice, let alone setting ourselves up for, I mean, a lifetime of failure. We don't get this ground back. If what we do from this point forward is stick our head in the sand about the fight that we have.

Jennie: I think the other thing I worry about, I worry about all the things, is the media education that I feel needs to happen. Like not everybody is Rewire News Group, not everybody is just like, I'm just saying. So like, if there is not a ruling that literally says, Roe v. Wade exists no more. I get worried about how it's reported. Yeah. It's going to be recorded as a win. And that it's going to be like, not bad, right?

Jessica: Yeah, no, no, no, no. We, we need to expect this because we've already seen it. Like this was a terrible term for civil rights, by the way. But you will not know that if you read about that, you would not know that if you read the recaps in most media where they said, you know what pretty centrist court you got there, this is terrible. We cannot do that. So yeah, I am with you a thousand percent. And the other reason why this worries me is because I said that there's a coordinated political campaign happening here in the amicus briefing. So let's talk about that a little bit, right? So we have the state of Mississippi saying like, “what we really want you to do is uphold our law. And if you're so inclined, strike Roe vs. Wade.” But really what that's going to do is just kick it back to the states, right? You're going to hear this a lot. Like what this is going to do is kick abortion back to the states, kick abortion back to the states. First of all, we don't do fundamental rights as on a state-by-state basis in this country. Like I know a lot of folks would like that to be the case, but just as a baseline, we don't do that. But let's say that that is what the Supreme Court sets up here. What everybody needs to know is that there is a pile of briefing by very serious legal scholars right now that is telling the court that there is just no fundamental way that abortion can be squared in the constitution. So they are making a fetal personhood argument. That is not something that they necessarily expect the court to bite on in Jackson v. Dobbs. But that is something that they expect the court to bite on, on the next abortion case. Because the other thing that the media is going to forget is that there is going to be a next abortion case. The one thing that we know for certain is that there is always another abortion case until the Supreme Court says there are no more abortion cases. So there is the fetal personhood argument being teed up, and it's not being teed up by fringe actors. It's being teed up by the same advocates who will launder the next case to the court. So people just need to know that. I'm sorry. You're never having me back on.

Jennie: I mean, listen, I wasn't in a great place before, because this is what we work on. There hasn't been a great place in it in a while. And it was kind of the hope with like, you know, the new administration, not everything was on fire in repro all the time.

Jessica: Yeah. Well, but I mean, that's the other thing about this case, right? Like you talk about an administration change. The Supreme Court had this petition during the Trump administration about talking about this case a whole lot before it actually decided when it was going to take the case. So anybody thinking that it isn't a thousand percent political, let me disabuse you of that notion right now. It absolutely is. Yeah. Kind of got my hopes. I mean, not up, I'd never had real high hopes, but like, as it kept dragging on and kept coming up for a conference, like there was just like this little smidgen of like, maybe I had the opposite reaction, but that's because I was having flashbacks to Masterpiece Cake Shop where the justices thought about it I believe like 13 or 14 times. So very close to the number of times that they thought about this. And each time it got me more nervous. Cause I was like, man, they're trying to change the law. And they're given a good think about how they do that. That's the only thing that I could come up with. And so each time they were like, oh, the Supreme Court didn't act on the Dobbs petition. I just could feel my stomach tightening and tightening, you know? And then when they just granted, I wrote about this, if I'm just rambling at this point, but it's almost like sort of Supreme Court, tealeaf reading the question that the Supreme Court originally granted was such a Trojan horse, you know, it's do states ever have the power to ban abortion elective abortion before viability? So it's like, you can already see all of those cues. Right. And from there, the window has even shifted further. So this is a bad faith case from top to bottom. I mean, a lot of the two waves haven't been subtle, right. The last like good abortion case was basically like, “yo, come on, you gave me one. We just said was unconstitutional. Can you like change it up a little bit? And then we can play ball.” Like that's basically what the chief justice said.

Jennie: Yeah.

Jessica: Oh, can we talk about Texas again for a second?

Jennie: Yeah, of course.

Jessica: Cause it's just, this is another one of those little details that reminds me because when you're talking about, you know, the folks will be like any decision that doesn't just completely strike Roe vs. Wade is going to be seen as a win. So like let's say that the Supreme Court upholds Mississippi’s 15 week ban, that means that Louisiana's 15 week ban goes into effect. And so we were talking about where folks in Texas would go, well, they go to Louisiana, is one of the places. And then Louisiana would have a ban at 15 weeks while the federal courts then are considering how to use the reasoning, the language from that decision to uphold Texas's six-week ban.

Jennie: And some of the steps are already there. Cause I feel like didn't somebody also pass a 12 week ban? So like, okay, if 15 weeks is okay then what about 12? Yeah. Like you can just see it coming of like getting pushed down and down and down. And then the person had argument has already been started.

Jessica: Exactly. Exactly. You know, and we, the court has this teed up, right? Like the briefing is there. The state of Mississippi's merits briefs to the Supreme Court that they just filed was all about quoting justice Roberts in terms of his concurring opinions in places like Citizens United, for example, like moving the needle along justice Alito, like, you know, really showing how conservative dissenting minority opinions get laundered through state legislatures to then become majority opinions at the Supreme Court. They did it with union rights. They're doing it with abortion rights.

Jennie: Okay. Since we're talking about like terrible tealeaf reading and the Supreme Court, the other ones that have been really stressing me are religious refusals and seeing the tea leaves like in the Bostock case. And just like, I'm just, there's so many things I'm worried about, but like that's like the next level of like, we're just going to start saying so many, so many religious exemptions.

Jessica: And you know, we got, we got a little lucky this term in the Fulton vs City of Philadelphia case. And again, I think they just kinda Masterpiece Cake Shop’ped that. So, you know, for the listeners who may not be aware, that was a case that involved a contract that the city of Philadelphia had with Catholic Social Services for support in placement of youth in foster and adoptive services and Catholic Social Services had sort of uniformly decided that they weren't going to be doing placements in LGBTQ families. And the city of Philadelphia found out about it after a media report, sort of an investigative piece of journalism and the case got, you know, went up through the federal courts and the Supreme Court effectively punted and said, you know, Catholic Social Services had complained when the city of Philadelphia yanked to their contract and said, you're discriminating against us on the basis of our religious objection to same-sex marriage and same-sex couples. And the court punted and said, basically the facts of this case make us have to decide a particular way, but left open the door for really this kind of religious exceptionalism from civil service, which is what I think we are going to be seeing in the cabinet court. Right? That's really sort of the direction that conservatives are trying to take the law, which is that, you know, functionally, first amendment protections for religious practice can be weaponized so that they are a sword to injure people that you don't like. And also a shield to protect you from, you know, legal liability for when you're violating civil rights. Like we are going to see a religious objection to critical race theory. For example, we are going to see a religious exemption made to any type of enforcement on vaccine mandates. For example, despite the fact that all of those things are traditionally considered constitutional. You know, that's the Hobby Lobby effect though, Jennie, sorry, that's not professional, but that's just kind of how I am. And whenever I talk about the Hobby Lobby case, because really they, they did us dirty on that one. It's bad. Yeah. It feels so long ago and so much has happened. And like just feels like every year I can just keep watching it get like better. We get like this great ruling, like, okay. But I see all the underpinnings of where it's going. The other thing, and Imani and I talk about this a lot too, is I'm really not looking forward to the Amy Coney Barrett opinion in Dobbs that then gets pushed in my face as some form of feminism. And we're already seeing this in the briefings, you know, concern. There's a litany of Amicus briefings filed by right-wing religious ladies that have said that “actually, the feminist position is being anti-abortion and here's why.” And so, you know, it's just, I think we're going to have to hold a lot of space for folks in June because we'll have a lot to be angry about because I mean, obviously even if we win, right. Like, okay, so we win in Dobbs. What does that look like? That looks like the landscape doesn't change and the landscape is really bad. So that's like, that's okay. Things didn't get functionally into a greater crisis than it already is. Right? So like, we're going to be told that's a win. Like I'm not going to want to accept that as a win. I'm going to be mad about that. So like there's literally no way that this case comes out other than the Supreme Court saying it’s bad. We're not going to hear it at all where I'm not mad.

Jennie: Yeah. Yeah. Because for sure status quo is not a win at all.

Jessica: Oh no. You know, and so, like I said, four to take a case, five to change the law, there's no reason to think we even get status quo. It's going to be a long year, long decade. I don't know. It's just been like the marathon, the ultra-marathon. That's really that, that really lands with me as a Coloradan because folks do a lot of those things out here. And I don't understand it. I always assume it's a pathway to homicide, but like I just don't, I don't get it. You know, the other thing too is that this is a decision that's going to be coming down as the country gearing up for the midterm elections. And there's no way to not talk about this case without also talking about that reality because we know that, you know, conservatives at a minimum are going to use this as a massive political push. It's going to be a massive fundraising push. I have long said that religious conservatives especially don't actually want the Supreme Court to overturn Roe vs. Wade. What they want them to do is just render it functionally irrelevant, right? Like legal in name only-- that allows them to continue to fundraise off of it and hot election cycles, but makes it impossible for anybody to actually provide or access care. And that's my true nightmare scenario here is like fetal personhood is obviously terrifying and that's like the dystopian sci-fi future that nobody wants, but a world where, you know, Republicans and evangelicals are able to hold power by continuing to fundraise off of this imaginary ghost of legal abortion when it does not exist, like I want to stab something.

Jennie: Okay. So let's, let's wrap it up with something…at least I was going to say hopeful, but I don't know about that. People I'm sure are frustrated and angry. What can people do right now? So what can our audience do? What actions can they take after listening to just this nightmare of things happening?

Jessica: So many things well, so always if you're able to, financially able to support local abortion funds and independent clinics, and I mean, we love everybody, but really truly like, you know, support your local grassroots organizers and advocates. If you have the financial means, agitate at the local and state level for reproductive health protections, if your state does not already offer them. So what are the kinds of protections that you could ask for? You could require state insurance exchanges to cover contraception and abortion care. For example, you could require that your state affirmatively recognize Medicaid funding for reproductive healthcare services. You could require your state protect abortion access at certain points and there's models for that, some states have already stepped up to do so. So those are things that can feel very good doing. This is an excellent time to have conversations with people in your neighborhood, people that you see people, you know, just in your community. I know not, you know, we're like, Delta's bonkers and like things are not necessarily as open as we want them to be or as safe to be out. But as we're talking about all of the ways in which the media is about to face plant in reporting on this story and the ways in which people are just taxed in their own lives, this is an excellent opportunity for us to all be ambassadors in our own spaces. And it can be a little weird and, you know, that's obviously if it feels safe and you feel supported and all of those things, you know, but there's a joke in my house that if you give me 30 seconds, I will turn the conversation back to abortion. And I try to kind of do that, you know? And so that is an opportunity where even if it comes up, you know, just, and little things like, you know, I, I think that's, that's really important. And then, you know, the rest of it is, is find support and, and moments of joy in your own life, because the battle is not going to be over in June. The battle will not be over a year from June. You know, one of the things that we know is no matter what the court rules, um, people will need to access care and people will access care in a variety of ways. You know? So we just, as, you know, folks who care about those people in those spaces need to be prepared for that reality. And I think that there are a lot of good groups out there who are starting to take on the more difficult and grimmer realities of that. If, When, How has their legal fund for folks who are facing investigation around a potential self-managed abortion, you know, there is an excellent opportunity to advocate the Biden administration permanently repeal the FDA restrictions around medication abortions. Particularly if states get in the business of pre viability abortion bans, medication abortion is going to be increasingly important. If you are in a state that has tele-health bans around medication abortion, that is an opportunity to agitate around. So there are pathways, there are things that we can do. And, you know, from what feels like big actions to little actions at the federal level, and even at the local level, you know, things like advocating for comprehensive sex ed, honestly, that may seem like something that is not related to whether or not the Supreme Court can ban abortion at 15 weeks, but they are absolutely related. So if you can get your school district to pass comprehensive sex ed, if it does not have it, that recognizes positive consent that is affirming for everybody on the gender spectrum, all of those things, those are all steps in the right direction. And are they mitigating steps? They are, but we have to start somewhere.

Jennie: Well, Jess, thank you so much for being here as always. It was a joy to talk to you about these things.

Jessica: Really it wasn't. [Laughs] I mean, no, I mean, it's stressful, next time we'll like set it up so that we can like have it with like a cocktail or something, but thank you as always, and again, you know, to, you know, listeners, just remember abortion’s legal in all 50 states and a lot of the next year, is it going to be about trying to confuse that reality. And so we can't let that happen.

Jennie: Okay. Y'all I hope you enjoyed my conversation with Jess as always. I love talking to her. She is so smart and knows so much about all of the legal side of this. And I think I forgot to mention earlier, she's also a co-host of the podcast Boom!Lawyered with Imani Gandy.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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