The Law of Public Health
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S2: Hi and welcome to ambigous. This is Slate’s podcast about the courts and the law and the Supreme Court. I’m Dahlia Lithwick. I cover these things for Slate and the whole magazine is trying to model really smart community distance this week, which means we’re all working from home. We’re washing our hands, were avoiding unnecessary travel. And, yes, we’re podcasting from our closets. So welcome to the new normal now with extra piles of sweaters. There has been an immense amount of Supreme Court activity these last few weeks. We’re going to try to hit the high points and catch up with the rest of it with Slate’s Mark Joseph Stern in our new bonus segment for Slate Plus members. If you’re not a slate plus member, you should check it out at Slate.com.
S3: Slash ambigous. Plus, suffice to say that the 5 4 madness continues apace at the high court. The court just this week allowed the Trump administration’s remain in Mexico policy that we covered in a show in December to go forward over a stinging dissent by Justice Sonia Sotomayor. And it remains to be seen whether the court will continue to hear arguments in the coming weeks. But we promised we would do this week’s show about June Medical. That was the big abortion case that was argued last week at the Supreme Court. We also wanted to give a little news you can use about, well, the law of pandemics. Luckily, we have a guest today who is an expert on both those things, and we’re just delighted to have her back on the show. Michelle Goodwin is chancellor, is professor of law and director of the Center for Biotechnology and Global Health Policy at UC Irvine School of Law. Her brand new book, Policing the Womb, is out this month from Cambridge University Press. It is astounding. She’s also faculty in the STEM Cell Research Center, Gender and Sexuality Studies Department Program and Public Health and the Department of Criminology, Law and Society. In other words, I think she’s kind of the perfect guest for this moment. So welcome back to Amicus, Michelle.
S4: It is a pleasure to be with you. Dalia, thank you so very much for having me back on your show.
S3: So let’s start with June Medical. I know it feels like it was 100 years ago, but it was only a week ago that arguments were heard. And I wonder if you can just briefly lay out why it is that the Supreme Court is basically rehearing a case now about admitting privileges for abortion providers.
S4: Given that this issue, I thought was resolved in whole women’s health in 2016, you know, it’s it’s stunning that the Supreme Court is rehearing this case. So to to understand the case and its broader context in 2016, in a 5 to 3 opinion that was written by Justice Breyer, the Supreme Court struck down to Texas laws, one mandating admitting privileges by doctors and the doctors who perform abortions. Let’s be clear. And then the second was to turn clinics into ambulatory surgical centers. Both laws were struck down. There was a robust empirical record from the district court level which helped to show that, one, these laws related nothing to promoting or protecting the health of individuals who sought to have abortions at two. They resulted in the shuttering of more than half of the clinics that provide abortions in the state of Texas. Three, they had a dramatic impact on the lives of individuals who sought to have abortions, resulting in some having to drive hours distance in order to reach clinics. And keeping in mind that some of those individuals might have been working class, middle class or poor. This also resulted in other kinds of economic hardships. Think they might have children, the cost of that kind of transportation, the fact that they might have to. It would have to given Texas laws come back, you know, not just for one visit, but because of Texas is an informed consent standards having to come back again. So, you know, ultimately, the court found, based on many different modes of analysis, a robust and Puracal record, an empirical record that showed that, you know, the. Quality of care for patients was not reduced nor maximized by doctors being able to have admitting privileges. The court struck that down now as a different court at that time. A 5 to 3 opinion and as your listeners will likely think, well, why 5 3, not 5 4? Well, this was in the wake of Justice Scalia’s death. And also there was still on the court a more reasonable justice.
S5: And Justice Kennedy, at least on matters such as as you know and let let’s be clear, Justice Kennedy was not always a friend of causes that affect women’s lives. But on this in this particular instance, he was with a majority. Now, that was only, you know, three years ago during a half years ago, almost four years ago. It’s highly unusual that the court would revisit a case such as this, which nearly verbatim is the same language that comes out of Texas. These hospital admitting privilege laws that were passed throughout the country were just part of a kind of package circulated by states where the attempt has been to undermine abortion care access by basically sending the same kind of legislation through legislatures across the country as as many as could be possible. And so what’s highly unusual about this case is that this was vetted just very recently and the Supreme Court was quite clear in its ruling. But the court has changed since then. So Justice Gorsuch is now on the court. And so is Justice Kavanagh. And that in of itself changes the balance of the court. It further entrenches a certain ideology on the court, given their prior records. And it is causing alarm. And to be clear, the type of alarm that it causes should not just be for those who are concerned about reproductive health, rights and justice. The fact that the court would so quickly review a decision such as this should cause alarm with relation to the value of precedent in any case. And you know, I want to caveat and bracket that, too, because while we talk about precedent and how unusual this happens to be, it’s also we must also think about this in nuanced ways. So we’re thinking about holding on to precedent than we might never have had. Brown Right. Because Plessy v. Ferguson made clear that separate but equal was fine in the United States. Even if we knew that actually separate wasn’t necessarily equal. Brown v. Board of Education overturn that. So there are times in which in fact, we want to strike down precedent. Think about Korematsu. Think about Buck v. Bell. So many different cases. But that’s not this case. To be clear.
S6: But one other thing that’s worth noting in this case is that the 5th Circuit saw that this law was totally permissible even in the wake of the Supreme Court’s decision in whole woman’s health. That, too, is striking. You might think about that within the relationship of Brown v. Board of Education as an analogy. Right. So imagine that Brown v. Board of Education of Topeka, Kansas. Magin, if there were municipalities, you know, cities and states and said, well, you know, that only applies to black people in Kansas. That doesn’t apply in Louisiana. That doesn’t apply in Georgia and Alabama. They say that that was absolutely ludicrous, the idea that Brown would only apply to one state and not others. And that’s essentially what we have in this case with the 5th Circuit saying, well, you know, Louisiana can go a different way.
S7: And that, too, is alarming.
S3: And Michel, there’s a sort of ancillary question that comes up in June, Menocal, that I think didn’t get enough attention. And that is just this question about whether physicians and abortion providers have what’s called third party standing to sue on behalf of their clients.
S8: And really, if you take away decades of third party standing, what you’re doing is saying pregnant woman, possibly indigent in deep distress.
S9: You have to stay pregnant for four years for the pendency of this lawsuit. And if somehow your pregnancy ends, you no longer have standing, so. So standing third party standing that physicians should be able to bring these suits on behalf of their clients.
S3: It has been uncontroversial. Now it’s suddenly on the table. And let’s just listen for one second to Justice Samuel Alito. He seemed to be, I think, at oral argument last week, the main proponent of the idea that maybe abortion providers should not have standing to sue because they’re not acting in the best interests of their patients. Let’s listen.
S10: That’s amazing. You think that if the plaintiff actually has interests that are directly contrary to those of the those individuals on whose behalf the plaintiff is claiming to sue. Nevertheless, that plaintiff can have standing if the plaintiff is directly regulated by the law.
S11: This court has allowed an attorney to bring third party claims against a statute that capped attorney’s fees in favor of clients. Well, that’s amazing. Let’s.
S8: I mean, Michelle, can you talk about what the impact of doing away with third party standing would be if that were the way the court decided to evade the bigger issues here?
S5: Well, basically, what that means is shackling women and and tethering them and persons who have the ability to become pregnant to the lives that they would otherwise choose not to have. Right. So that would mean that physicians are not able to intervene on behalf of their patient. And it also undermines the reality of what these relationships happen to be. And it’s a it’s a complicated space to if we’re to think about it for so long, the history has been that the rights of of women with relation to abortion were actually tethered to their doctor. So if you think about Roe v. Wade itself, it was a case that, yes, introduced the language of choice, but it decriminalized abortions, meaning that it was really about the doctors themselves. And even though Planned Parenthood v. Casey changed the dynamics of that. And Justice Ruth Bader Ginsburg spoke to that. In fact, in her nomination hearings to the Supreme Court, the reality is that for so much of the jurisprudence about abortion itself has been connected to doctors and we could debate whether that should be or not. But eliminating doctors from being able to have standing to protect the interests of their patients actually undermines the validity of that relationship. It undermines the reality and the nuance of that relationship. Now, I don’t think that women’s reproductive rights need to be litigated through their gynecologists and obstetricians. But I also think it’s highly problematic to suggest that those who are seeking to operate in the best interest of their patients and advocate for their patients in this regard that they don’t have standing is absolutely ridiculous. I also think that it’s problematic in instances such as this, given that so much of the targeted regulations of abortion providers trap laws which have targeted both abortion providers as clinics and also doctors, they have been on the front lines of those attacks. Between 2010 and 2013, there was more anti-abortion legislation that was proposed and enacted than in the three decades prior combined. And much of that was targeting the doctors and the clinics as a means of undermining women’s access to abortion. And so I think that, you know, when we hear Justice Alito wanting to undermine and to strip that that right from from physicians, it is highly problematic.
S3: One of the issues that I think the court elided a little bit, Michel, in oral argument is this fundamental question. You said it yourself. Justice Breyer really did do a meticulous job in whole women’s health of trying to figure out if there are any medical benefits to having admitting privileges. He determined there really were in any in somehow. We’re back in this conversation about maybe it’s different in Louisiana and Texas.
S8: But Ruth Bader Ginsburg, it argument was making, I think, the point that admitting privileges aren’t even tethered to the local hospital.
S3: Where? Which is sort of within this 30 mile radius for the abortion provider. That doesn’t make sense given the reality of where women may be. Even if they needed to be admitted. So let’s listen to her for a minute.
S12: What I sense this is the 30 mile limit me considering that certainly medication, abortions and the overwhelming number of other abortions. Just again, a woman has a problem. It will be her local hospital that will she will need to go to for the care, not something 30 miles from the clinic. She has had no necessary relationship to where she lives.
S3: Can you talk for just a minute about what lived life on the ground is in Louisiana when you may be sent home? It may be a medication abortion, but the chance that you need to be admitted to a hospital within 30 miles of the clinic actually makes no sense at all.
S7: Well, there are so many reasons why it, in fact, makes no sense, which shows that these are really politicized power plays. Right. So first, these are not admitting privileges that are required in so many other categories of medical treatment that actually happened to be far more risky for women. And a woman is 14 times more likely to die by carrying a pregnancy to term than she is by having an abortion. That’s the first. The second is that there is federal law and Tahla, which requires that any person who’s in a status of a murder emergency must be admitted to any hospital and stabilize. So the very notion behind, oh, doctors need these admitting privileges because otherwise, if there’s an emergency, their patient can’t be seen is actually inaccurate. It’s not true. There is a federal law that protects every person who’s in any emergency. Being able to go to any hospital, they can’t be dumped. They must be seen and they must be stabilized. So the very idea that the doctors need this in order for their patients to be seen at any hospital is just so absolutely inaccurate. The thing is that because abortions happen to be so safe and in whole woman’s health. Justice Breyer went through the record. Right. You know, you’re more likely to be struck by lightning than to die due to an abortion. Kalinowski Cubby’s are far more risky than having an abortion. Tonsillectomies and so forth. You go down the line of the very things that people have on a regular basis. They’re all far more dangerous and risky in terms of death and having an abortion. When doctors have admitting privileges, this means that they are going to bring a certain number of patients to be served at that hospital. All right. The sort of predictability of doctors bringing patients. And for those who are performing this procedure, they can’t guarantee that because, in fact, abortions are, in fact, safe. And so that’s really important to keep in mind in terms of what happens on the ground. And you’re right. Abortion is not just a surgical procedure. Abortions can be had through taking pills as well and patients at home to take those pills. And given the fact that abortion clinics now are, you know, so far and wide spread and between, you know, a person may live, Miles, maybe even hundreds of miles away from the clinic in which here you would the clinic in which she has served or he if it’s a if it’s a trans man.
S13: And so on the ground, this doesn’t make any sense. In fact, what it is, is it’s burdensome, it’s stigmatizing, and it does not relate to the health and the science and the safety of the procedure itself. There are so many ways in which this is very clearly an attempt to undermine access to this medical procedure. It does not relate to health and science in any kind of way, in any kind of practical way, in any kind of on the ground way.
S6: There are outpatient surgeries that people have that are all far more risky than an abortion isn’t. I think that part of the rhetoric around abortion that has been played out by state legislators, by members of Congress and so forth, has really changed how people see abortion in ways that just simply don’t match the reality of. What it happens to be for that, it’s important to revisit Roe v. Wade and Justice Blackmun’s opinion in there, too. There was, you know, a kind of opening and a digging through an empirical record. The pilgrims practiced abortion. Right. Abortion had been legal in the United States. And we could talk more about this. You know, if you want in the show. But, you know, the reality is that abortion, when it became illegal, that, too, was a politicized move. Right. You know, nearly 100 percent of reproductive health care up until around the time of the civil war has been done by women. Half had been black women. The move to stigmatize midwives who did all of this work. Whether it’s birth planning, contraception, abortion, prenatal care, et cetera. The move away from that was really facilitated by the American Medical Association and two doctors who led the way Horatio Store and Joseph Darlie. You know, these were sort of forerunners of gynecology and obstetrics. And they wanted to move women quite explicitly out of doing this work. They wrote in their pamphlets and books about how they were stigmatized and how they were teased by other male doctors who told them they’re doing nothing more than women’s work. And it was at a time in which women were banned from going to medical schools and whatnot. And one of the ways of getting women out of the way of all reproductive health care was to politicize abortion.
S7: And it worked.
S6: And to try to criminalize abortion. And the women who performed them and racist ideology was used in much of the kind of ideology we see to do today. The A.M.A. got involved in anti-immigration campaigns. This was part of the anti-abortion movement and it was quite successful. They wrote about how important it was that white women use their loins and go north, west and south around the time of, you know, the liberation of black people from slavery. And so, you know, when we think about the broader context of what June medical means and you know what on the ground these kinds of movements have meant in the United States. Let’s be clear that this goes along side, you know, the rise of white supremacy, which I think, you know, if it hadn’t been for Heather Hyers, death a few years ago might have been really difficult for people to understand. Is that like what in the world? There’s no way that we could connect anti-immigration racism and white supremacy with reproductive health care, but that’s beginning to become far more clear. And there are those who are doing the research, which is showing it. Right. You know, so, you know, for those who are doing research on the rise of white supremacy and they’re following, you know, what they’re doing on Facebook and on Instagram and whatnot, abortion is part of their ideological, you know, platform. Get rid of it. And so, you know, there is a broader conversation for us to have in terms of not just what this means in the courts, at the circuit court level and now with the Supreme Court. But also the kinds of social movements that are aligning with this are really problematic.
S9: And it also goes to the sort of subtle point you made up top Michelle, which is for a very long time, doctors interests were not aligned necessarily with their obstetric patients for all the reasons you’ve just described. And then, you know, Justice Blackman and Roe sort of lashes the doctor and the mother together as though they are one person with the same interests. And here now we have Clarence Thomas and Sam Alito trying to say, oh, no, their interests are actually at odds. So it is this a little bit of a paradox that their interests have never been perfectly aligned, but they’re also not on a collision course the way Justice Alito would have it. But it does mean sort of threading this very, very fine analytic needle and saying, actually, doctors have autonomy, actually pregnant women have autonomy. And actually, that’s a little bit complicated. And historically and as you say, for all sorts of race based and income based reasons, a really, really complicated thing to parse. I wonder if you probably agree. I think everybody who watched and heard oral argument agrees it is all going to come down to John Roberts.
S8: And he seemed very fussed about the question you raised, which is maybe Texas and Louisiana are different. Maybe we just have to look at the states separately and maybe there is some reason to relitigate this over and over. Let’s listen to him for a second.
S14: Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we’re talking about? I mean, I understand the idea that the impact might be different in different. Places. But as far as the benefits of the law, it’s going to be the same in each state, isn’t it, Michelle?
S3: Given that you frame this initially as a referendum on stari decisis and the role of precedent. Can you make any sense of what it is that John Roberts was trying to do and where this may go in his hands?
S15: Well, they’ll hope so for those who are hopeful. It’s been that Justice Roberts will care about his legacy and that he has articulated in the past that the Supreme Court is not comprised of Trump judges or justices or Obama justices.
S16: He made that as a statement about the Supreme Court and also the lower courts as a means of showing the or attempting to show the objectivity of the court, that the court will be independent and it will be discerning, discerning based on the record that comes before it. But just as the clip that you just played shows, this may be far more complicated than those who are hopeful are mindful about. You know, I’ve been part of the group that has said that, look, this will come down to Justice Roberts. It will come down to how he perceives of his legacy and a legacy about seeing the validity of the court and not just simply a politicized which is a sympathetic to the Republican Party, much of which Justice Sotomayor has now accused the Supreme Court of being.
S15: It’s a wait and see. I mean, I wish that I could have that crystal ball able to predict. But I will say this, that the fact that we see this being relitigated, the fact that it’s being litigated at all, the fact that in 2020 we’re still debating these types of issues when the United States leads the developed world in maternal mortality and the very states like Louisiana and Texas are considered the deadliest places in the developed world to give birth. Those are not just the deadliest places in the United States. It was like the deadliest places in the developed world. And if you go to the CIA, a Web site, that Central Intelligence Agency, you’ll see that the United States ranks 50th 50 first in the world in terms of maternal health and safety that is keeping women alive during their birth. You’ll see countries that are rated ahead of the United States are former or, you know, war torn or genocides have taken place like Bosnia. And so in that context, one can’t help but see this kind of momentum towards shackling the rights of women as being a referendum against the independence and autonomy and even the livelihood of women. It’s important to understand this case and not with hyperbole, but really, these are life and death matters in the United States and these very states where these challenges are taking place. Let’s be clear, they’re not only the deadliest places in the developed world and with horrific records in the United States, but that African-American women are three and a half to four times more likely generally within the United States to die during pregnancy. And in some of these states, the rate of death is 17 times as high as their white counterparts. And what we haven’t seen is the same kind of momentum and action and interest in these states about keeping women alive during these pregnancies. And that is really the horror behind what is going on. We have the statistics. We have the data. Right. And so with that, this leaves us only to see the political machinations of what this all happens to be. It’s not about preserving the health and safety of women at all. It’s not about holding doctors accountable in any kind of way. It’s a different kind of agenda that we see going on here.
S9: And it’s worth just flagging that. Your book, your brand new book, Policing the Womb opened My Eyes in a hundred new ways about the creeping Handmaid’s Tale world we’re living in now of using the criminal law, among other things, to privilege the rights of fetuses over actual living women, including actual shackling, which you describe. And I think it’s really of a piece with this move you’re describing.
S3: Michel, I want to turn if we. Could to coronavirus. Yeah. You have done so much thinking, I think, about these issues of public health. International public health and civil liberties. And of course, one of the reasons I actually wanted to have you on the show is because those two seemed to be smashing into each other. Now, in this country, you serve on the executive committee and the national board of the American Civil Liberties Union. So I think might just first framing question is how do we even think about the tension between these very American ideas of freedom, the ability to walk in, to speak and to move and to assemble against the backdrop of the kinds of measures we’re seeing put into place even today in places like China, in places like Italy. How do you even just help me look at the landscape? Because I see just a fundamental, possibly intractable tension between ideas of liberty. The way we conceive of them in this country and it seems what needs to be done to control a pandemic.
S17: It’s an excellent question. I just love being on your show. Right. You ask six billion questions. So. So if we’re to understand the history of the parents pay, try authority that the state has. We could look back to nineteen 0 5 and the Supreme Court’s ruling in Jacobsen’s a Massachusetts. It’s a case where an an individual refused to be vaccinated. In his local community. And the case goes to the Supreme Court. Now in this instance, for an individual who refused to be vaccinated, they could have paid a fine and he didn’t want to pay the fine. The Supreme Court in ruling against this individual, said that it is within the state’s authority to protect the health and safety of the community. And this further undergirds really the state’s authority with regard to protecting health and safety and imposing certain conditions on individuals in order to do so.
S15: Now, what’s interesting is that the court uses that same type of logic in a case that doesn’t deal with the public health. Although the court claims that it does, and that’s in Buck v. Bell in 1927.
S17: It’s a case that involves a poor white girl who had 16 carry who had been raped by her employer’s nephew. She becomes pregnant. And in the state of Virginia, they had enacted a law that provided for compulsory sterilization of people who were considered to be socially more morally unfit. When the Supreme Court sanctions this in a horrific ruling that ushers in eugenics into the United States, which ultimately affects tens of thousands of people being sterilized against their will in the United States, children as young as 10, it eventually becomes racialized and known as the Mississippi appendectomy. That is doctors lying to parents of kids in Mississippi and in Georgia and other places saying they just need an appendectomy and basically sterilizing little black girls. What we see in that is the public health being used as a proxy for something that is nativist, xenophobic, racist or discriminatory against individuals who have disabilities. The concern then is what are the ways in which the status to mediate then public health and not fall prey to nativist types of concerns. So, for example, one might say, well, is it a nativist type of concern that all travel now is blocked from Europe with the exception from the UK?
S18: How does that relate to health and science and what’s really important here? And we saw this with, you know, Casey Hickox in Maine when the governor, after she had been working with Doctors Without Borders and and helping individuals came back, had not tested positive for Ebola. But the governor of Maine thought, well, she should be quarantined anyway. Fortunately, a district court disagreed and sought an empirical record of a person does not test positive. You cannot just simply limit that person’s civil liberties, which deny them the opportunity to be able to work, socialize with others, et cetera. And so in these times, while we want to be careful and practice exactly what they’re doing at Slate, which is to be preventative and proactive, we also want to be mindful of real empirics health and science data to get a public health record, a mass to do the kinds of things that. Proactive, informative to republic, and in this particular instance, we have lost opportunities, for example. We rejected test that we could have had in the United States that would have been provided through U.N. agencies. We said, well, we will create our own. We saw that there were tests that were done in the state of Washington, but the tests were not reviewed at all. And so they expired. We’re still not doing tests. Right. There are people who are flying back to the United States from Italy, but not being tested yet. I hear there are some universities that at first were told, well, they couldn’t develop their Rhône Corona virus tests and some went ahead and did so anyway. And now they’re being told that they can. So what we haven’t had is the type of coordination from the federal government that we could have had to be more proactive to calm concerns and then to set pathways forward. What we also see is that there are institutions that are taking these matters now into their own hands until, you know, there is more coherence coming from federal and state level. We see that with universities, for example, that have now gone to remote classrooms. Right. And that’s universities taking this into their own, you know, hands and some without any cases of Corona virus on their campuses. But they are trying to be proactive in the wake of this. The question that you’ve asked is so important, because we have to think about vulnerable individuals. So if we’re thinking about a university, this may not be where you wanted to go. But I just want to add to this, which is that on college campuses, they’re now shutting dorms. Well, that might work for people who actually have families and homes to go to. But for students who are indigent, for those who’ve come from abusive family backgrounds, for those who happen to be immigrants, this is their home. Their dorm is their home. And to not put too fine a point on it for those who’ve taken out loans and have now paid the university that fourteen or fifteen or sixteen or twenty thousand dollars for their housing for this year or even just for this semester now it being kicked out, they don’t get that money back. I mean, hopefully universities will be sensitive about these issues. So there are civil liberties concerns that we must be mindful about. And then we also need to be mindful, too, just about the ways in which, you know, institutions will carry out what they are thinking about in terms of being mindful and proactive. You know, I think if we want to be mindful, that it just simply doesn’t hurt those who are most vulnerable.
S8: And I love that you that you laid out that way, because I think these are we are making choices and trying to pick the least bad option.
S9: Certainly that’s the case redoubled in the case of closing public schools. Right. Where many, many, many, many children in this country are reliant on them for lunches. RATH I had breakfast and I read somewhere a statistic that 40 percent of registered nurses in this country have kids enrolled in a school age, children. What are they going to do if their kids schools are shuttered? So there’s no great choices here. But you do raise this interesting framing question again, which is it reminds me a little bit of the war on terror cases, Michel, after 9/11, where everything you’re describing almost requires forward looking, proactive, very quick decisions, not a ton of time to sort of sit around and develop a record and make very, very nuanced choices. You have to act quickly. That was the theory after 9/11, ticking time bombs everywhere and then work it out after. And somehow it feels as though that is again in direct conflict with how we think of that judicial process, building a record and civil liberties. So, again, I feel like we’re right back in that box where the kinds of things that need to be done are going to be massively over inclusive and massively encroaching on civil liberties. And I don’t know whether there’s a national consensus in this country to do that kind of thing. But as you say, there are massive costs.
S19: That’s that’s absolutely right. And to be clear, those who end up suffering the the the fringe mint on their civil liberties often are the people who are most. Vulnerable and in a society, there will be stereotypes about the people who will be the carriers of disease.
S20: And often we will get that wrong. Right. You know, historically we have you know, when Ellis Island was really a quarantine station and what was very interesting was the way in which it was handled. Right. So people were tested who were down below often, but not people who were above, you know, up above. That was absolutely ridiculous. The idea that disease follows class, that it follows race is part of a racist type of ideology. And in fact, when we’ve seen the worst type of harms in the United States, such as smallpox, it was so many white folks died and were harmed by it because they presume that it was only black people who could contract it. So you’re absolutely right. I mean, there will be actions that potentially are over inclusive. There will be things that are under inclusive and class based matters. Our reality here, we are not a country that has invested in childcare.
S21: In day care, in providing the kinds of means for working class families to have reasonable and affordable alternative means. And now this will be when the chickens come home to roost. And this, too, relates to reproductive health care. I think it’s one other matter that’s really important for us to surface with this, too.
S20: There is very interesting data coming out of South Korea as they have been doing so much testing in this regard. And we have not in the United States. And what they found was, is that the majority of the people who contracted Corona virus, there are women. And there are ways to explain this, because for the most part, women have been caregivers and more exposed to providing care to different kinds of people in various kinds of situations. Now, it’s also important to note that simply contracting corona virus does not mean that one will die from it. Many people may end up having it and not even know that they had it.
S21: What this really boils down to is also having a very strong immune system. So one of the things that we actually haven’t heard are the ways in which people can keep themselves healthy. And again, that’s because, you know, we’ve seen a lack of coordination, a lack of clear action, a lack of a kind of coherent message.
S20: And I want to tack one other thing onto this, because your point about decisions being made, decision needing to be made on a quick turn. One troubling aspect of this is that there are meetings happening behind closed doors.
S21: Individuals aren’t being informed. We’re supposed to wait for reports from people who actually happen to not be medically trained.
S20: But the reality is that there are virologists in the United States who’ve been studying corona viruses for decades.
S21: These are individuals who could be part of a task force to help the United States government figure out what to do in a situation like this. Saras and Murs were also are also corona viruses. Right. So this is actually not new to us.
S20: But what we have not seen is that level of coordination and sophisticated kinds of implementations of plans that provide confidence for Americans.
S9: That’s such a good point, Michel, because I think that in a little bit goes back to my civil liberties question, which is in a country where there is already so much mistrust of government, so much mistrust of vaccine, so much mistrust of racialized policing, kind of the worst thing you can do is sideline transparency and sideline sort of open process in a time where we don’t even agree on facts, much less what procedures are to be put into place. And I think that that it feels a little bit like a powder keg to introduce any questions of, you know, we’re gonna do this behind closed doors or, you know, Jared Kushner is going to make decisions for all of us in a moment where there’s not an abundant sense of trust that any level of government, whether it’s, you know, deploying the National Guard in New Rochelle, whatever it is, I think some sense that this may not be in my best interest and that can only be exacerbated by secrecy and lack of transparency. I want to just ask you one last question, which is can you unpack? It’s such a complicated thing in a federalist system like the United States, where this is not BYB stroke of a pen and executive order. There are layers and really overlapping layers of municipal authority and state authority and then federal authority. How do you unbreak it and think about who is in charge or is it simply the case, as you just suggested, that, you know, when the CDC fails to do something, we’re gonna see state authority when New Rochelle needs to be locked down, that will simply happen on a local basis. Is there some unifying theory of how to look in a deeply federalist system and who’s in charge right now?
S22: That’s a really important and a very good question. By default, typically we look to the federal government as providing the final answer or trumping state law with no pun intended there. And there may be at state levels, enhanced efforts to protect the health and safety of its. Communities or states act when a federal government doesn’t. By example, there is no federal right to an education. Interestingly enough, in our Constitution. But that’s been baked into state constitutions. So there are times in which states will act to protect and to promote its citizenry. When the federal government hasn’t in this particular instance, what we see is a real mishmash in real time. We don’t see a Coke kind of coherent action plan coming from the federal government. There is a kind of trickling that’s taking place. You see the CDC is seemingly a bit handcuffed. You see that there is a lack of coordination with international agencies, even when international organizations have attempted weeks ago to work with senior members of our federal government. You know, President Trump in his administration.
S23: And so that mish mash further undermines the confidence then that individuals would have a right now between states.
S24: There are different protocols in terms of how to handle something that might be a health crisis such as this. So between states, there isn’t necessarily coherence in terms of states laws. There isn’t any kind of coherence vis-a-vis state and federal law in this domain. And so to some degree, we’re really starting in some ways a kind of new and a fresh, although this is not new and a fresh that we’ve dealt with public health crises. Now it affords an opportunity to try to get it right and to put the kinds of processes in place to aid in instances like this, because this may not be the last time when we get beyond this particular pandemic, which is what the U.N. and the W.H.O. has now called the Corona virus, this COVA Dash 19. But we may see more of this in the future with more travel, more people on cruise ships, more people on airplanes, et cetera. So figuring out how we get this right while protecting civil liberties and civil rights is so important while at the same time promoting the public health and safety. And so I would close with saying, you know, what this also underscores for us is the urgent need of getting the right people around the tables to figure out these things. And we’re not going to be successful at that if we shut out the researchers and the scientists who know most about these kinds of pathogens, viruses, et cetera.
S8: And I was going to close Michelle by just asking the question I think you’ve already answered, which is news you can use. What rights do you have if you are in a quarantine? But the fact is it’s just a patchwork. It’s a state by state. Minute to minute shifting patchwork. Right. We can’t tell listeners that it’s the same in Minnesota as it is in Texas because there’s just no coherent lay of the land.
S23: Right. That’s absolutely right. And I couldn’t emphasize any more the importance of empirics. And how do we get those empirics in a situation such as this? Well, we need testing, right? We need for individuals to be tested. And our civil liberties don’t just simply go away because there is a virus that is afoot that might affect many people. That’s also important to be understood at the very local level. And even though we might say, well, everybody knows that, no, we can see in instances, even when there is not a virus and there are certain people whose civil liberties become far more, more vulnerable every day. You know, I mean, with little girls being handcuffed at schools and taken off without their parents permission to be tested and institutionalized about their mental health. Right. Beth, that’s civil liberties violation right there. You don’t lose your civil liberties simply because there is something in the air. You don’t lose your civil liberties simply because you become sick. Right. So it’s important to understand the primacy of due process, both procedural and also substantive due process that, yes, we do want to protect health and safety. And in times in which the state does do that, there are times in which our civil liberties are mediated against that. But there should never be a wholesale removal or the trampling of an individual’s or whole communities, civil liberties, because we are struggling with a health concern or even a health crisis. But we need good information. And the only way that we get that good information is by doing the work and engaging in science and engaging with those who truly do understand these types of of issues. And I couldn’t underscore that more science.
S8: Fact, nuance.
S3: Good. In the time of cholera or coronavirus.
S9: Michele Goodwin is Chancellor Professor of Law and director of the Center for Biotechnology and Global Health Policy at University of California, Irvine School of Law. Her brand new book, Policing the Womb, is well worth checking out. It really, really changed the way I think about a lot. And Michelle, thank you so, so much for your work on this and other things. It is a delight to have you back on the show.
S23: Thank you. Thank you so very much for having me on your show. And I wish all of your listeners good health.
S8: So now for our Slate Plus members, we are going to continue to do a deep dive, especially for you.
S25: And this is a look at some of the things that have happened at the Supreme Court that we may have missed in the main show, but really warrant our attention as much as ever. So. Mark, Joseph Stern, my absolutely indefatigable wing person at Slate on all things law and SCOTUS joins me now. Mark. Welcome back.
S26: Thank you so much for having me back. Hello, Slate Plus.
S27: And Mark, I guess let’s start with what the heck is Corona virus doing to the Supreme Court?
S25: We’ve got some 80 year old justices. We’ve got stuff in Washington slowly, inexorably shutting down what’s happening at one first street.
S26: This week, the Supreme Court is closed to the public. Starting yesterday, there will no longer be access for tourists and other individuals who’d love to see the building. They are shut out, but the court will go on as usual. And in fact, the announcements made it very clear that the deadlines for filings for those before the court have not been waived. So everyone has to stay on their toes and there’s been no talk of canceling the next set of arguments, which began on March 23rd. So basically, it looks like the court is just going to become a kind of secret chamber where an elite group of lawyers argues about a bunch of stuff and no single member of the public is allowed to watch them do it.
S28: And no press mark, that is an ambiguous points that has not yet been clarified. We just do not know right now. There’s. No guidance for the press. So I think there is a possibility the press would be able to go. Perhaps we’d get better seats since the public wouldn’t be taking them up. But, you know, I do want to get ahead of myself. It it’s still very much a shifting issue.
S27: And is this the moment at which maybe the court agrees to do televised oral argument? I’m just kidding. Ha ha. That’s well, that’s what everybody wants.
S28: Right. I mean, it makes much sense to say, well, if everybody’s germy and they’re all gonna hack and confident facts, the 80 plus year old justices, why don’t we just lifestream it? You know, the Supreme Court has the capacity to livestream at least audio of oral arguments. They’re already being recorded. It seems like this is something the court could do pretty easily. But there’s been no talk from the chief justice about granting any kind of audio or video access in real time to this next round of arguments. The court seems to be sort of putting its head in the sand and saying, well, we’ll just keep the tourists out and that’ll keep us safe from all the icky viruses and everything else can just go on as usual.
S3: Mark, maybe this is a good moment to Segway to an issue that may may be of some interest to listeners who are in the midst of what looks to be a pandemic. And that is, um, Obamacare. Do you want to talk a little bit about the fate of the Affordable Care Act and what the Supreme Court is doing right now?
S26: Yeah, absolutely brilliant timing here. As we’ve discussed on this show, a coalition of red states joined by the Trump administration are asking the federal courts to destroy Obamacare, to obliterate it entirely under the bizarro theory that by reducing the individual mandate to zero dollars, Congress actually rendered the entire law unconstitutional. And the Supreme Court will hear that case. Now, it won’t hear the case until next fall. And it seems pretty likely that the Supreme Court will hear it in the weeks before the 2020 election. Very interesting timing for the Trump administration and probably not the timing that the Trump administration wants, because this is a case that could put the health insurance and health care of 20 million Americans or more on the line if the Supreme Court strikes down this entire law. There will be millions of millions of people who have no affordable access to care. And should I mentioned that all of this could be going on in the midst of a pandemic. So, yeah, Obamacare, it’s back at the Supreme Court. This is the most frivolous of all of the challenges. And it’s, you know, probably not going to succeed. I think you and I still believe John Roberts doesn’t want to sabotage this law on the basis of a conspiracy theory. But the fact that the Trump administration will be arguing to take it all down weeks before the election isn’t going to be exactly a political boon for them.
S25: And you and I have written about this as well, Mark. Just the strange, strange fact that if we were all focused on the fact that the Supreme Court might eviscerate Obamacare, that would be a big voting issue. But it’s about a 15th order concern right at this moment and dropping quickly down that list, right?
S28: Well, I think that’s right. I also think this case is so bizarre. It’s really snuck up and caught a lot of people by surprise.
S26: Like you’d think we sort of did this already twice. And yet here we are again going through the motions. But opponents of Obamacare are indefatigable. They really, really, really don’t want people to have health insurance. And I think people just have some fatigue with the whole Obamacare and the courts thing. They’re tired of it. Like we don’t have huge legal battles over Social Security’s constitutionality every other year.
S28: Unfortunately, we are doomed to go through this cycle with Obamacare, possibly for eternity.
S9: It’s ACA, Groundhog Day every day at the court. Let’s talk briefly, if we might, about remain in Mexico and what happened this week.
S28: Terrible order from the Supreme Court reinstating the Remain and Mexico policy, meaning that thousands and thousands of asylum seekers who may well have perfectly valid, lawful claims to asylum will be forced to stay in Mexico just over the border while they’re waiting for their claims to be adjudicated and assessed in the U.S..
S29: This was an order with only one noted dissent, only Justice Sotomayor noted her dissent. That doesn’t mean the other liberals did not dissent. This is a kind of funky little procedural thing with the Supreme Court. When they issue these orders, they don’t have to log their votes. So we don’t know what the actual vote was. We only know that Sotomayor was angry enough to log her dissent. The real-world impact of this decision re-instating remain and Mexico will be devastating because these border camps that have sprung up for these individuals affected by the policy are overcrowded. They have little access to sanitation. They are unhygienic. And they’re really sitting ducks for coronavirus. And so I think the Supreme Court has put a lot of lives at risk by reinstating this policy and forcing so many people to languish in these camps where they are making themselves unfortunately quite vulnerable to a pandemic.
S25: And this was when we covered it in December. This was already a public health emergency before coronavirus. Now seemingly exponential public health risks. And it’s interesting, Mark, that Sonia Sotomayor is taking on this sort of solo role of jeremiads slash. What do you have some sense of why it is she’s doing a lot of lone dissenting on these cases?
S29: Well, she seems to be carving out this space as the justice who says this is not normal. The justice who says, look, we have rules and standards and procedures here. The Trump administration is throwing them all overboard. It seems like every other day the Trump administration is running to this court, claiming that there’s some emergency and that it has to implement a policy that’s been blocked by a lower court immediately or all hell will break loose. And you guys, my esteemed colleagues on the Supreme Court, you are encouraging this. You are rewarding it by giving the Trump administration what it wants. Over and over again and letting it short circuit the usual process. So I think Sotomayor is kind of speaking truth to power here and reminding not just the Trump administration, but her colleagues on the bench that they are going way out of their way to help out Trump, to give him these extraordinary relief that his administration is seeking if pretty much any other litigant asked for. They’d be laughed out of court.
S25: So last question dovetails into that, Mark, which is this 5-4 thing we’ve got going at the court. You know, usually by this time in any term, there’s a lot of seven to twos and there’s a lot of eight to ones. And we don’t see rock solid five, four immutable splits. And this term, you wrote about this recently. It’s a thing. I wonder if maybe you can look at it through the lens of a decision that just came down recently that is going to allow states to prosecute immigrants who use fake Social Security numbers to secure a job. Another 5 4. What’s up?
S29: Yeah, I mean, this was a 5 4 along the usual ideological lines. Five conservatives just basically throwing their weight around and really, frankly, retreating from the position that the Supreme Court took back in 2012 in the Arizona case. You may remember that in that case that the court said, look, immigration is really a federal matter and we’re not going to let states get into this area and start to prosecute all of these individual crimes that are sort of outlined in the federal code that are meant for federal officials to deal with. And now, I guess with Cavitt on the bench, with Kennedy gone, the conservatives have sort of changed their minds and they’re saying, hey, Kansas, if you want to go prosecute undocumented immigrants for faking Social Security numbers, go at it’s 5 to 4. And it is the third 5 to 4 decision of the term so far. That means that court has has mat’s a record that it set 10 years ago. It’s been 10 years since the court has issued this many 5 to 4 decisions. This early in the term. And these are big, big cases. These aren’t just little minnows. I mean, this immigration case is quite important. The other five to four decisions, one involved the death penalty, one involved the horrible cross-border shooting. And what seems to be happening here is that there’s no Anthony Kennedy to sort of force compromises between both sides. There’s no apparent middle ground. And maybe most importantly, there’s no appetite among the five conservatives to try to narrow their opinion or find some other ground to decide the case on that might draw in more votes. The five conservatives are taking an extreme hard line on the rights and they count to five and say we have the votes. We don’t need to compromise. And that is a relatively new dynamic that we are seeing emerge with Cavenagh on the court, not something that we saw nearly as much or nearly this early in the term when Kennedy was still on the bench.
S25: It’s a tiny little smash and grab vibe for this smash and grab moment. Mark Joseph Stern covers the courts and the law, LGBTQ issues and so much more at Slate. Mark, I opened the show by saying that we are all working from home this week. Can you tell us what you see around you in your wherever you are working right now in Washington, D.C.?
S29: Well, I see two framed Jackson Pollock prints that I bought as a very pretentious sophomore in college that I somewhat regret having hanging in my bedroom, but I’m too lazy to replace them. So I guess they’re giving me inspiration to grow and mature during this entire episode.
S25: And Mark Scott, a tweeting bird in the background and I’ve got chirping teenage boys. So there it is. Marc Stern, always, always, always a pleasure to have you let us know. Posted what’s happening at the court.
S27: As soon as you know anything. Always good luck out there and don’t touch your face.
S30: And that’s a wrap for this episode of Amicus. Thank you so much for listening. Now go wash your hands if you want to stay in touch or if you have questions that you want answered, you can e-mail us at Amicus at Slate.com, or you can always find us at Facebook dot com slash Annika’s podcast. Today’s show was produced by Sara Bermingham. Gabriel Roth is editorial director of Slate podcasts and June Thomas is senior managing producer of Slate podcasts. We will be back with another episode of Amicus in two weeks. Till then, take good care.
