Hey, folks, Joyce fancier, abortion rights are making headlines this week after the Supreme Court rejected a request to block Texas is new restrictive abortion loss from going into effect that Ah SBA vans abortion once a heartbeat can be detected at around six weeks of gestation. Under current Supreme Court precedents, abortion is permitted up until around twenty four weeks, which is when a foetus is considered viable outside the womb. In response to the court's decision, speaker, Nancy Policy announced that the house will soon consider distillation that would codified reverses, wait. Crete, Morocco and I discuss all this and more on the cafe. Insider podcast today were sharing a clip from the episode with listeners, its stated to hear our full conversation and access all other cafe. Insider content. Try the membership free for two weeks. You can do that at Cathay, DOT, com, Slash insider,

That's Cathay, dot, com, slash insider! We look forward to having you as a part of the insider community, Harriet yourselves. Labour day I'm well. It was nice, it was sort of low key about. You know. I was good restful, although I was preparing in earnest for the conversation I have today before we get to that. We had to have an important cafe announcement. Our friend, our colleague, Ellie Honing, has a new six part podcast about what the mob, the mafia, it's called up against them up premiers were launches or whatever the word, as you want to use tomorrow, Wednesday September. Eighth, you can get wherever you get. Your pack casts up against the mob, with Ellie honing and also by the way forward for coffee. Siders, there's a special insider component every week, a bonus, so please check that out. Also.

So we only have one subject to talk about today, and I am sure folks can guess what it is. It's this Supreme Court action with respect to the abortion LAW in Texas. This Supreme Court thought that the plaintiffs, the abortion clinic providers and end the Doctors who sued in Texas that they didn't identify the right defendants and that's how we end up saying well, constitutional protections. Dont really exists. It seems so other world lions and so, like the buildings, are upside down that anybody who looks at it from the from the outside says this is this is wrong. There is a constitutional protection on the books that somehow gets defeated by legal technicalities, and we should have a legal system that functions more in the light of day than this, in reality right living reality? It just when you, when you

the proposition the way that you and I have stated it is unconstitutional. Everyone agrees, there's a process by which, over time and with proper deliberation and brief writing an oral argument that you can change that reality. You and I are against changing that reality, but a lot of people are in favour of it. But that's different from what is happening here and class of a more for a real world question sure why on earth did the five justices do this there's always a debate about what I'm not they care about political effects in the care about the reputation of the court and they care about the institution, and maybe that's a reason why John Roberts, who presumably is pro life, is on the other side of this is a procedural matter, but then what have known how much of an uproar would be created and how much harm would it have done too.

Their long term goals for abortion or anything else to simply do the normal common sense expected right thing at this moment and uphold the status quo and later in a fully openly transparently, not with respect to the shadow docket make whatever decision they're gonna make about row. I actually don't understand why they did it. This way, understanding how would be received. So, if you're in member of the community, it looks like this court is fulfilling its destiny right and they're, making no bones about it, sort of like Kafka's gun. If you declined give a preliminary injunction in Texas well, then we probably know what you're gonna do when Dobbs comes in front of the court next term and the issue of

the row in case he continued to be good, lies squarely in front of you. Well, you know it's interesting about that and the fulfilment of destiny. Here's my other question. There is a subset of people whose country, including legislators in Texas, who have been praying for the moment where role would be either formally overruled or effectively guided, and we point out- that's happened in Texas and you would think that conservative commentators and anchors on Fox NEWS would be celebrating and having parties, because this is what they were looking for year after year after year, and yet not only are they not celebrating the Supreme Court in this opinion here and other commentators are, basically saying hey. This is not a big deal, is just procedural.

as you and I know, procedural disputes in decisions have impacts on substantive rights, and it seems to me that some people are very smartly pointed out. The reason there's not a celebration is even though the subset of people country who are ecstatic over this cutting of Roby Wade. They are worried about the backlash and they want to minimize this victory, and it is a victory for them. Zero road in the Atlantic, something very smart that the majority in this case warned people not to overreact, and she writes further quote that the court pretended this wasn't about. The fate of abortion rights tells us that the justices may be ready to strike down Roby weight, but this is the important part, but are less prepared for the havoc. Such a decision would wreak and she also rights. The justices who allowed Texas is law to go into effect, hardly seem to love the thought of that backlash.

There is a report that Fox NEWS barely covered this decision. You think it would be. You know, music to the ears of a lot of listeners, who think that the right to abortion should not be permitted what's going on here. If you had dog out in front of your house, with the bulldozers prepared to knock it down in that dog was chasing cars. That's what happened Republicans in Texas right. They they caught the car and they're, not quite sure what to do or they can create a backlash. but the Poles and twenty twenty two and and beyond, because of this. This is made

not the moment that they thought it would be anti abortion activists, one abortion to go away, but they don't find the political strife and fuss that goes along with it. But it's endlessly fascinating to me not just the way that the spill was structured that doesn't come close to holding people responsible for abortion in the way that these people think that they should be held accountable to learn to be highly highly unprincipled, disingenuous and strategic with respect to how they crafted the law, because you're playing the long game and, at the same time, are not doing too much to celebrate because more the more you celebrate the thing that you've been fighting for four decades: the more political opposition you're going to get. It's very odd that they're pretending this is not a big deal, they're, accusing people in the other side in a pro choice advocates.

hysteria, there's no hysteria here. It is just the fact that Roby Weight has been good, at least for now in Texas, and it's a harbinger of of the ultimate decision on row. I want to say, is a Covey out for bringing you can join coffee, I don't know you never know, never know. What's in it, and when they deal with the these substantive case but boy not hysteria to think the handwriting is on the wall? No, it's not an end. Just like in shall be county verses holder, Supreme court guided the Voting Rights ACT without actually tossing the whole thing out. I want if we want to see an outcome like that in Dobbs, where role will be essentially gutted, but row will technically still be good law. You know maybe, when you're looking at the Texas six week ban as a possibility, the fifteen weeks in the Mississippi law in dogs which permits abortion up until fifteen weeks. Maybe that starts

Look better, maybe that's part of the strategy here. Maybe that will at least be part of what we see this notion Gee women, you should be grateful that were not enforcing the six week ban and that were only going to do what Mississippi did and dogs, I have a lot of a lot of worry and a lot of anxiety about where this one heads- and I appreciate so much pride that you pointed out the notion that no one- who was principled, who believed that abortion was murder would be happy with the text. A statute there's a certain of cynicism here that is appropriate for us to engage in, and I don't really think we need to give folks the benefit of the doubt when they engage in this kind of legislation. to the unsigned court order, one paragraph unsigned order, one paragraph unsigned order does. Furthermore, we are talking about a few minutes ago through the downplaying of this decision:

procedural if that means there's nothing to see here, there's nothing to worry about, and there are no rights being abridged all which is wrong. The court, the majority, the five justice majority says for what it's worth and then you should tell folks about the descents quote in reaching this conclusion. We stress that we do not propose to resolve definitively any jurisdiction or substantive claim in the applicants, lawsuit, and they say this because they will have to, but it's interesting that they chose to emphasise it In particular, this order is not based on any conclusion about the constitutionality of Texas is law and in no way limits. Other procedurally, proper challenges of the Texas LAW, including in Texas State courts. End quote there

So our friend Melissa, Marie, I think, had a great tweet Melissa said. Procedural rules and rulings have substance of implications. The court's procedural ruling she put that in quotes allowed a law that is substance of Lee unconstitutional to go into effect, effectively negating row, and I think that's a great way of talking about the descendants here there actually a descent written by each of the four justices in the minority. I'm very Twisted injustice, certain my oars descent and Justice Kragans Descent there, the to sort of goal posts on this field- So to my or is the outrage part of the spectrum? She calls the decisions stunning. She points out that the justices have buried their heads in the sand, and the denial of abortion rights taken takes a different approach, though she thought

This is on the shadow, docket and the notion of hypocrisy, and she views this as a very hypocritical ruling by the majority. I think it's interesting that Kagan, as you pointed out, when we started this conversation becomes, I think, the first justice to ever acknowledged that the shadow dark it is being discussed, at least among legal academics by that name, and she talks about how it has become emblematic of too much of the court's decision making, which is particularly problematic, because now the court is using the sham

doc it in a way where its telling the lower court. You know this is our binding precedent. You have to follow it, but there's no written opinion, no disseminated reasoning for those lower courts to follow, and so between those two descents. We get a good sense of both outrage, but also practically that this is not the way the law works. What did you see that the sense that you, like the most learned, what I like the most I thought, was or should that everyone chose to go on record with assigned opinion? Which kind of interesting to me is the Justice Roberts wrote an inner, probably disappoint, alot of conservatives. I think back to the vote. As people may remember, I was in the Senate and worked on the confirmation hearing of Justice Robert and seems to be consistent with the kind of way he talked about modesty, judicial modesty and not at all agree what I'm saying, but this opinion he says in in less strident language than the justices you just mentioned, he's a very simply quote. I would grant

Mary relief to preserve the status quo ante, meaning before the low into effect, so that the courts may consider whether a state can avoid responsibility for its laws in such a manner, meaning this crazy wacko. You know arguably, b a scheme to have individual sue and government officials out of the process. That's kind of wax doodle interpreting with the justices saying the chief justice that's kind of lack of doodle. Why don't we take a moment not do I'm crazy, not let that go into effect until we determine whether or not it isn't that what I could do, that seems to be eminently reasonable and should be reasonable to people who are either pro abortion, anti abortion, Pro V Wade and Tyro V Wade. I think it's a sort of inexorably logical to do what he said and the other justice as such should be done as we discuss at the beginning. You know he picked justice, Briar Injustice, Kagan who joined in this descent? Justice?

to my or did not join, and although I think that you are correct that this is eminently that the right restrain judicial approach in this sort of a secure and I wonder if the reason so to my or didn't join, is because of the last clause of that sentence that you read where Robert was willing to consider whether estate can avoid responsibility for its flaws, quote in such a manner by creating this private, action mechanism, it seems to me that so to my or has gone on record by saying no way, knowhow can't do it. So I just joys. We should talk about what happens next. This case will continue to proceed dubbed case. teach proceed. There are actions being suggested and look like they will be undertaken by the Congress. People should remember this reminded everyone. If and when row actually get struck down

that doesn't mean that abortion becomes illegal everywhere. It means it goes back to the states and in some states, like California and New York and others. The right to abortion will continue to be a right that people have and other states like Texas in the ASEAN and Alabama. It won't be. So what is the potential solution to this, while some people are advocating for having Nancy Pelosi, the speaker of the house, as that there will be a vote on national federal legislation, basically codified? The standards of Rome and giving everyone the right. Twenty four slash: seven, whatever the local state wanted. Thanks for listening to hear the full episode had the cafe dot com insider and try out the membership free for two weeks, that's cafe dot com.

Either and to the many of you have chosen to join the insider community. Thank you for supporting our work.