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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
Nia Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, yeah. How are you?
Nia Rodgers: I'm fine. How are you?
J. Aughenbaugh: I'm good. Listeners, Nia and I have interrupted our usual late spring late spring hiatus, because we felt the need to record a couple in the news episodes.
Nia Rodgers: That's right, because the Supremes are out being interesting. The Supremes of various places cause our last one was the Supremes of Virginia. This is the Supremes of the United States. United States.
J. Aughenbaugh: Yes. Because, lower federal courts sometimes do um shall we say, strange things, which one could plausibly describe what the Fifth Circuit Court of Appeals did of recent vintage. We decided to record another podcast episode in part because both Nia and I think that the way the media has been portraying what's going on with this case is slightly askew. There are some things that aren't being covered or other points that are being emphasized that we're like, no, that's not really what's going on here. Listeners, what we're referring to is we are recording a day after the United States Supreme Court issued an order that has continued to block a ruling by the Fifth Circuit Court of Appeals and Hudson. It covers the states of Texas, Louisiana, and Mississippi.
Nia Rodgers: Thank you.
J. Aughenbaugh: It is considered by most scholars Nia as the most conservative lower federal appeals court.
Nia Rodgers: Is it nine that covers California and Washington and Oregon and they're like, the wildest, most liberal?
J. Aughenbaugh: Yeah. Well, they used to be. Now, scholars argue that the fourth Circuit Court of Appeals, which is the one we live in, which covers Maryland, Virginia, West Virginia, and the Carolinas, they're giving the Ninth Circuit a run for their liberal money.
Nia Rodgers: But Fifth has always been.
J. Aughenbaugh: Fifth has been for years.
Nia Rodgers: Conservative. You don't get appointed there if you're a liberal judge. You just don't.
J. Aughenbaugh: I mean, two thirds of the judges who serve on that court have been appointed by Republican presidents. I think Trump is appointed like four or five.
Nia Rodgers: I mean, Well, and the reality is the most you're gonna get is a centrist. Yeah. You're not going to get.
J. Aughenbaugh: Now, what's at issue here is the Fifth Circuit Court of Appeals issued a ruling saying that the abortion pill, and me and I are probably going to mispronounce the drug. But the specific drug is mifeprestone prestine, prestone.
Nia Rodgers: I know it's stone. Mifeprestone, I think.
J. Aughenbaugh: Mifeprestone.
Nia Rodgers: Call it M.
J. Aughenbaugh: Yes. Or the abortion pill. That the mailing of abortion pills to women in Louisiana, violated the Administrative Procedures Act.
Nia Rodgers: Now, because their argument the court rule, the court rule basically you can't do that. You can't have those pills mailed to you.
J. Aughenbaugh: The FDA during the Biden administration, loosened the mailing of the abortion pill to states across the country. Previously, the FDA required that you had to actually physically go to a doctor and get the abortion pill prescribed to the FDA during the Bide administration said, you no longer have to do that. You can do a telemedicine, if you will, consult.
Nia Rodgers: You still have to consult with a doctor.
J. Aughenbaugh: You just don't have to do it in person, and then the abortion pill can be mailed to you. Now, this becomes a problem because post Dobbs V. Jackson US Supreme Court ruling, a number of states controlled by the Republican Party went ahead and said that the mailing of abortion pills to residents in their state would violate state law. Louisiana went ahead and challenged the shall we say, loosened mailing options of the abortion pill issued by the FDA on the grounds that it violates state law and harms Louisiana's sovereign public health and safety laws. The Fifth Circuit Court of Appeals agreed. The manufacturers, Nia, of the abortion pill, in particular, I want to make sure we get them correctly, Danko Laboratories, and then the genetic version is.
Nia Rodgers: Geno BioPro.
J. Aughenbaugh: Yes. The two abortion pill manufacturers appealed the Fifth Circuit Court of Appeals ruling to the US Supreme Court and asked the Supreme Court to issue an administrative stay, meaning the Fifth Circuit Court of Appeals ruling would not go into effect. The US Supreme Court, the way this goes down, Nia, this is a case for the Supreme Court's infamous emergency or interm docket. Typically what happens is each Supreme Court justice is assigned to at least one, if not two federal appeals courts to receive emergency appeals from that court's ruling. The US Supreme Court Justice assigned to the Fifth Circuit is Justice Alito. Alito earlier this week, issued a stay. He then brought in the rest of the justices to get them to weigh in on whether or not the court should stay Fifth Circuit Court of Appeals ruling. Now, at this point, there have not been written briefs and oral arguments. The Supreme Court has not even decided whether or not they're going to take this case. All they are doing is basically saying the Fifth Circuit Court of Appeals ruling will not go into effect, meaning women of Louisiana can still get what?
Nia Rodgers: Access the M drone.
J. Aughenbaugh: That's right. That's all the Supreme Court has done. The full court yesterday, so we're recording this on Friday, May 15, the full US Supreme Court announced that it was stained the Fifth Circuit Court of Appeals ruling. The vote was not unanimous. The vote was seven to two. The vote was 72. Thomas and Alito both dissented. Thomas said that the drug manufacturers had no grounds to sue because the mailing of this drug actually violates a federal law that was passed in the late 1800s, known as the Comstock Act.
Nia Rodgers: He's made that argument before.
J. Aughenbaugh: Before? Yes, hey.
Nia Rodgers: What was Alito's objection?
J. Aughenbaugh: Alito's objection was that a he said that states, had the authority to prohibit this based on the court's ruling in Dobbs V. Jackson.
Nia Rodgers: Is a state's rights issue?
J. Aughenbaugh: It's a State's rights issue and that the FDA more than likely violated the Administrative Procedures Act because they did not do reasoned deliberation before they changed the regulation. Because before the Bn administration, Nia, the FDA did not allow women to have the abortion pill mailed to them. They had to go to a doctor, get a prescription, and then go to a local pharmacist to get the prescription filled.
Nia Rodgers: On the other side of that argument, this drug has been highly tested.
J. Aughenbaugh: Yes.
Nia Rodgers: It's as safe a drug as you're going to get to do this procedure. Will there be complications for some people? Yes. That is a thing to be aware of and to take into account. What I think is interesting is the argument has not been made yet that these companies have a commerce clause argument. You are limiting our business.
J. Aughenbaugh: Well, if they make that argument, then they have to go ahead and explain how the Comstock Act does not apply, because the Comstock Act would bans the use of the United States Postal Service to mail drugs that some states might find to be unsafe for their residents.
Nia Rodgers: Interesting. I would be an interesting argument.
J. Aughenbaugh: I would love to see this case actually be decided on the merits. The problem I have is the way the media is portraying this case is that the US Supreme Court.
Nia Rodgers: Has upheld a woman's right?
J. Aughenbaugh: Yeah, they haven't done any of that. All they have said is the Fifth Circuit Court of Appeals ruling is being stayed. I got to tell you, Nia, if Those are two different things.
Nia Rodgers: Those are two different things.
J. Aughenbaugh: If this case got to the Supreme Court, I think states will be really, really concerned about how the Supreme Court looks at this case because the major argument that the drug manufacturers are making is that Louisiana does not have standing to sue the FDA in federal court. The drug manufacturers are saying the state of Louisiana cannot show how its sovereign interests are being harmed. And this becomes potentially dangerous for every other state in the country because the Supreme Court, since 2007, in the Massachusetts versus EPA greenhouse gas case, the Supreme Court gave states greater standing to sue federal agencies in federal court.
Nia Rodgers: They're trying to take and they're saying that should be narrower.
J. Aughenbaugh: That's right.
Nia Rodgers: Careful what you ask for. As for careful what you ask for.
J. Aughenbaugh: Again, this goes back to the other episode that we're also going to be releasing at roughly the same time, which is, be careful the arguments that you make because if the Supreme Court accepts them, then they could be used against you in the future.
Nia Rodgers: Because that's how precedent works.
J. Aughenbaugh: That's right.
Nia Rodgers: All you got to get is one court.
J. Aughenbaugh: Yes.
Nia Rodgers: See it your way, one high court, to see it your way, starts precedent, and then it's harder and harder to with, I'm torn about this because I am I personally believe in a woman's right to choose. I also personally am not a fan of abortion. I live with these two things in my brain at the same time, which is what I would not do myself, I cannot tell you not to do because that's not I believe that's democratic. But this pill is known to be safe, and it is significantly safer than backstreet abortions. It is significantly safer than what women were doing before 1972 in the United States when they did not want to have a child. I don't want to go back to that. I don't want to go back to women in Louisiana with coat hangers, and I'm not trying to be graphic, so I'm going to stop there with that description. But you know what I mean? It scares me. If there is a safer way to do this, it terrifies me that that could potentially be cut off. I don't mind having to say, you need to go to a doctor to get it because then they can see if there are other complications. We can't give you this med because we're looking at the other meds you take and it could cause an aneurysm or a heart attack or whatever and they may not be comfortable doing that. But so I'm not sure I disagree with having to see someone, but I do think I disagree with this not being available to some women in the United States because of what might happen when you turn to other alternatives.
J. Aughenbaugh: There are a number of issues that this case touches upon the one you just mentioned. Because after Dobbs, the Supreme Court basically turned it back to the states. Not surprisingly, you're going to have conflict between the states and an administrative agency of the federal government who made it easier for women get around state prohibitions on receiving abortion. What do you do with that?
Nia Rodgers: When the feds say, you don't have to worry about state law, do what we tell you.
N. Rodgers: Is that a road we want to start down?
J. Aughenbaugh: Be careful what you argue or wish for, because if you're going to go ahead and undercut state police power, then what about those state laws that you do like that are based in the Tenth Amendment's police power afforded to state governments?
N. Rodgers: There's no national drunk driving laws. Those are all state-level drunk driving. We like those laws because they keep people from getting killed.
J. Aughenbaugh: I'm also cognizant of the fact that the FDA, particularly of recent vintage, under the last two presidential administrations have from an administrative law scholar point of view. Have played fast and loose with the Requirements of the Administrative Procedures Act.
N. Rodgers: The FDA is living in the Wild West, and that's not just Trump. That was Biden. That was Trump before Biden; it's been the last 10 years or so, where the FDA has just gone.
J. Aughenbaugh: Gone rogue.
N. Rodgers: Gone rogue, totally on its own. It's just like I think we'll do this today, and you're like, What's that based in?
J. Aughenbaugh: What's the science? By the way, did you even throw the metaphorical bone to the Administrative Procedures Act? I'm also aware of the fact that you have this issue of states having standing because, before Massachusetts versus EPA, the Supreme Court was very fond of telling states if they didn't like a federal law or a regulation issued by a federal agency. Then states should go to Congress and change the law or put pressure on the agency to change the regulation.
N. Rodgers: Similarly, I hold anger and resentment in my heart that Congress did not enshrine a woman's right to choose in a national law, which they could have done in the intervening 50 years between Roe and Dobbs. It's not like there wasn't time. Those two things did not happen open back to back in a year. You had a substantial amount of time, and you were too cowardly to do it if you believed it to be the right thing to do. Now when people are [inaudible], I'm like no. That's totally on Congress. Congress could have fixed that. Congress could have done something.
J. Aughenbaugh: Go ahead and bemoan the court's ruling in Dobbs, but also recognize that Dobbs would have been shortchanged if the United States Congress, using its Commerce Clause authority, had passed a nationwide abortion law.
N. Rodgers: Something reasonable that people could live with it's certain number of weeks, and that's not unreasonable; it's not five days, there's enough time to figure out you're pregnant and to make a choice and make a reasoned choice, but safely. European countries have figured this out. The United States really can't figure this out. I find that hard to believe. Now we have 50 different laws. It's just going to come back to the Supreme's at some point because it's unequal treatment. Now you have unequal treatment. If women in Texas and Louisiana cannot access whatever healthcare they wish to access, and women in California and New York can. We now have an uneven system.
J. Aughenbaugh: This is where these tangential legal and constitutional issues will play a role. If Louisiana and other states cannot ban women receiving the abortion pill via mail, because they don't have standing. Then think about what that does for standing in regards to states who are challenging Trump administration, federal agency regulations.
N. Rodgers: Minnesota struggles with ICE at that point.
J. Aughenbaugh: Or California wants to challenge something that Trump does or New York does.
N. Rodgers: This slope it is slippery.
J. Aughenbaugh: Over top of all of this is the abortion issue. Nia, you've done a very good job describing all the related issues. But then underneath this, you get to how much deference do we show the FDA for changing a regulation that basically was in place for multiple decades. All of a sudden, we could mail this, and there's not a problem. You have to do a little bit more than, well, this is a reaction to Dodds. That's not an appropriate justification per the Administrative Procedures Act. But then you got this arcane thing known as standing, and if I had to venture a guess, the reason why the US Supreme Court went ahead and said the Fifth Circuit's ruling is not going to go into effect right away. Is that there are a whole bunch of judges on the Supreme Court who are like, man, I'm really uncomfortable with Louisiana's standing argument. Now they're playing out in their heads. If Louisiana doesn't have standing, what does it mean for all these other states who claim that they are being injured by ICE raids or the federal government cutting funding to programs that their residents like?
N. Rodgers: Or the selling of land or releasing of oil. There's 1,000 things that states could say, Hey, that hurts us.
J. Aughenbaugh: Now, you got Supreme Court justices who are like, This is about abortion and the abortion pill. But it's also about all of these other policy areas.
N. Rodgers: It's the worm on top of a can of worms.
J. Aughenbaugh: That's right. You want to talk about the proverbial Pandora's box; we opened it.
N. Rodgers: Don't open it.
J. Aughenbaugh: Whereas justices like Alito and Thomas are like, whatever, let's wade into this. I think a lot of the other justices, and this is where the media is not really capturing this. This is more than just about the mailing of the abortion pill. This is about the fact that the US Supreme Court, increasingly, has had to tell the Fifth Circuit Whoa, cheater, rein it in.
N. Rodgers: Slow your roll. Slow it down.
J. Aughenbaugh: Because we got some other things that we have to take into account, that you guys basically just went ahead and gave a cursory glance to.
N. Rodgers: You passed on your way to doing something else. I will say, Aughie and I would like to kudo, Amy Howe over at the SCOTUSblog, because unlike most media, her headline was, Court Allows for Access to Abortion Pill by Mail for Now.
J. Aughenbaugh: Yes.
N. Rodgers: Which is exactly how that should be worded. It's not forever. They haven't made some large statement. This is not a win or a loss for anybody. This is everybody, stand still, let the water calm down, and we'll figure out where the alligator is. Everybody, just stop thrashing around.
J. Aughenbaugh: We can actually give this more thought.
N. Rodgers: Some deeper thought.
J. Aughenbaugh: Amy Howe did a really good job with this. Listeners, if you get a chance, go to SCOTUSblog and take a look at how she described it because she did an excellent job. With something that's pretty complicated, and I wish sometimes the media would just go ahead and say, Hey, guys, this is nuanced.
N. Rodgers: We're not going to attempt to push your emotional buttons with our headlines and our breathless reporting. Frankly, very little of viscodis should be treated as breathless. You know what I mean? I get the red carpet at the Met Gala, being breathless. Look at that. Oh my gosh, that's amazing. Oh my gosh, that's horrible. I could see that being breathless, but the Supreme's shouldn't really draw that reaction from you.
J. Aughenbaugh: The opening of the World Cup should be breathless.
N. Rodgers: That's breathless.
J. Aughenbaugh: The opening of an Olympic ceremony. Wow.
N. Rodgers: Fireworks on 4th of July. Breathless. Supreme Court? Not so much.
J. Aughenbaugh: We want them to be the boring people that go ahead and say, give us a couple of months. Right?
N. Rodgers: Yes. We want them to be boring. They need to be as boring as possible in the sense of, let's have some really reasoned, thought-out arguments about what's happening here, so that we're not just pell-mell running around doing crazy stuff and then having to take it back. Aughie, will they take this as a case? Will they decide this, you think, or will they just leave it like it is right now?
J. Aughenbaugh: The drug manufacturers have not filed an appeal. All they filed was a request to stay the Fifth Circuit. If the drug manufacturers file an appeal, then the Supreme Court will probably ask the FDA to weigh in. This is the other noteworthy thing about this case.
N. Rodgers: The FDA is out playing golf. They're like, what? Were you talking to us? I wish I could get away with doing that at my job.
J. Aughenbaugh: I'm out here mowing the yard. What the heck happened? No, you're going to have to actually, like, come back inside. Yes.
N. Rodgers: I have a question then, and I know we need to wrap up. It's expensive to have a Supreme Court case. Anybody who tells you that is not expensive is bonkers. Unless somebody's doing it pro bono, that is a lot of money that you spend to go through that process. Do you think they waited to see if they could get the stay, so that if they didn't get it, they didn't waste the money on appeals and stuff like that?
J. Aughenbaugh: No, I think that they rushed to the Supreme Court to get a stay because they recognize that if the Fifth Circuit's decision was not stayed, there could be possibly two or three other states that also have prohibitions on mailing abortion pills to their residents, who then would go to their courts.
N. Rodgers: Then you'd have a much larger loss.
J. Aughenbaugh: That's what I was thinking.
N. Rodgers: I guess we'll find out in the next few weeks what's going to happen with this.
J. Aughenbaugh: Whether or not the Supreme Court. 1. Gets an appeal. Then, 2, if they decide to accept it. If they do, they won't hear the case until the next Supreme Court term.
N. Rodgers: That's in October.
J. Aughenbaugh: The '26/27 Supreme Court term.
N. Rodgers: Is that the first Monday in October? Is that the book is named that?
J. Aughenbaugh: The first Monday of October. That's when they will hear their first case for the new term.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Thank you, Nia.
N. Rodgers: Hopefully, I won't talk to you again until Scots because nothing else will happen in the news. But the chances of that are nonexistent. We'll see you soon, I'm sure.
J. Aughenbaugh: Listeners, Nia and I plan out our schedule for recordings.
N. Rodgers: Then we think we're going to get a break.
J. Aughenbaugh: We're going to get a break. Then stuff happens, and we're like, well, there goes that break.
N. Rodgers: What is it? Man plans, God laughs.
J. Aughenbaugh: That's right. What's the beginning of the Steinbeck book of Mice and Men? What is that?
N. Rodgers: We're both looking it up.
J. Aughenbaugh: We're both looking it up.
N. Rodgers: The best laid plans of mice and men.
J. Aughenbaugh: Often go, what, awry, astray.
N. Rodgers: It's actually, it's in a Robert Burns poem. That's it, the best laid schemes of mice and men often go awry. Steinbeck borrowed it for the beginning.
J. Aughenbaugh: Mice and Men. How about that?
N. Rodgers: Thank you to you all, Mr. Well Red.
J. Aughenbaugh: The nuns in my youth right now would be so happy.
N. Rodgers: He finally came around.
J. Aughenbaugh: Yes.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: That troublemaker, actually.
N. Rodgers: That's right. He amounted to something.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Bye.
J. Aughenbaugh: Bye.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.