In a decades-overdue basement cleanout, my parents came across some papers from my summer internship with the Public Defender Service in DC. I was an intern investigator (think Kalinda Sharma but without the bad ass boots). My partner was a junior from Ohio State named Dave (who was his school’s mascot during football season). Dave and I served subpoenas, took witness statements (“Really, he attacked you with a machete, and you don’t remember any of it?”), and made sure clients got to court. The lawyer we worked for was second chair on a murder case that summer, and we got to watch a lot of the trial which was simultaneously fascinating and painstakingly boring. (As a perk or an apology for our unpaid internship, we were put on the witness list which meant the court paid us $50 a day.)
My biggest regret from that summer until now was that I missed the deadline to sign up for the field trip to the Supreme Court. It turned out to be on the day SCOTUS handed down the decision in Planned Parenthood v. Casey, which upheld Roe but lowered the standards of obstacles states could put in between women and their right to an abortion. Casey ushered in the era of laws requiring ultrasounds, waiting periods, lectures full of inaccurate information, and extra-wide hallways as states tested how much they could chip away at access while still claiming to allow abortion.
Post the great-parent-paper-purge of last week, however, I may have a new regret. Apparently, one of the papers they threw out had Merrick Garland’s phone number on it. Now I’m desperate to remember how my path crossed with the should-have-been-Supreme-Court-Justice.
I know from Wikipedia that he was an Assistant United States Attorney for DC at the time. While AUSAs in other states work only on federal cases, it’s different in DC where some of them prosecute local criminal cases from misdemeanors to homicides. I can picture the judge in the murder trial very clearly (an elegant, young African-American woman, with false eyelashes, long red nails, and a smokey voice) and I can picture the lawyers for the co-defendants (one of the lawyers was named Floyd and he could best be described as a perpetually unmade bed). I cannot, however, picture the prosecutor. Could it actually have been our current AG early in his career?
Of course, the bigger question about Merrick Garland is not whether he prosecuted three defendants for murdering a homeless man on an abandoned school bus in the early 1990s but what would have happened if Mitch McConnell hadn’t blocked him from becoming a Supreme Court Justice. Would we have a 5 - 4 split? Would none of us know about Brett Kavanaugh’s drunken debauchery as a teen? Would we still have abortion rights? (The numbers don’t work on this one but as long as I’m reimagining the past, I could have RBG staying alive until Biden took office or retiring under Obama.) Would we be less fearful about the state of our democracy? Would the arguments in yesterday’s hearing on mifepristone access have gone differently?
We can talk more about that case next week after an endless stream of pundits have weighed in on which way the wind is blowing based on which justices asked which questions. Just remember as you read about the case between now and then, if the Merrick-Garlandless Court buys the Comstock Law argument, we could all very quickly be living in a country without access to abortion, birth control, or porn.
Don’t believe me? Keep reading. The road to hell (which clearly starts in Texas) may well be paved with 5th Circuit Court of Appeals rulings and efforts to “protect the children.”
5th Circuit Upholds Parental Consent for Birth Control
Matthew Kacsmaryk, the same judge who issued the original ruling in the mifepristone case being heard this week, ruled last year that Title X programs in Texas can’t provide birth control to adolescents without a parent’s consent. Earlier this month, a 3-judge panel of the 5th Circuit Appellate Court largely upheld his decision. Title X groups say the new decision only adds to the confusion about what they can and can’t do.
Title X family planning program provides birth control and reproductive health services to low-income people across the country. It was created in 1970 before the Republicans decided to declare war on birth control (or at least in between Comstock eras). George H.W. Bush was one of the programs biggest champions, arguing that funding the program was imperative “not only to fight poverty at its roots, not only to cut down on our welfare costs, but also to eliminate the needless suffering of unwanted children and overburdened parents."
Title X was built on the not-actually-contradictory ideas that families should be involved in a teen’s reproductive health decision whenever possible and that not all teens have adults they can trust. The program encourages family participation but is not allowed to require parental consent. While Texas has a law requiring parental consent for medical procedures, the Title X program was considered exempt because it was governed by these federal rules. Jonathan Mitchell, the former Texas solicitor general known as the architect of the state’s strict abortion law, set out to change this.
Mitchell brought a case against the Title X program on behalf of Alexander Deanda, a Christian father of three teenage daughters who he is raising to stay abstinent until marriage. Many legal experts believe that Deanda doesn’t have standing to bring the case because he can’t prove that he was directly harmed by the Title X rules. We have no way of knowing whether all three of his daughters are virgins or will be virgins on their wedding night, but we do know that none of them has been given contraception by a Title X clinic or even tried to access it. Still, Mitchell argued that his client is harmed by the mere existence of a rule that would allow his daughters to become slutty-birth-control-pill-poppers without his knowledge.
Kacsmaryk, a champion of modern-day Comstockery, agreed that Deanda had standing to sue and went on to agree that the federal rules violated his rights as a Texas parent. Kacsmaryk also used his decision to strike down a 2021 federal rule confirming that Title X-funded clinics cannot require parental consent. That rule was put in place after—and as a direct result of—this case.
The government appealed to the notoriously conservative 5th Circuit. A three-judge panel mostly upheld the lower court’s decision. It agreed that Deandra did have a right to sue and said that Title X’s rules do not preempt Texas’s parental consent law because the two laws are actually complementary:
"Title X's goal (encouraging family participation in teens' receiving family planning services) is not undermined by Texas's goal (empowering parents to consent to their teen's receiving contraceptive)… To the contrary, the two laws reinforce each other.”
The appeal’s court, however, said that Kacsmaryk was wrong to strike down the 2021 rule prohibiting clinics from requiring parental consent because that wasn’t at issue in the case at hand.
This decision is confusing at best. What’s a clinic in Texas to do if both the Title X rule telling them they can’t ask for parental consent and the Texas law saying they have to are equally valid? What about clinics in other states that require parental consent for medical treatment?
Stephanie LeBleu, the Title X Project Director for Every Body Texas which administers the grants in the state told the Texas Tribune, “While we agree with the court’s decision to keep in place the 2021 Title X rule that prohibits clinics from requiring parental consent, we remain concerned that the ambiguity of the ruling continues to impose barriers for young people in Texas who are trying to access birth control.”
Since Kacsmaryk’s ruling last year, Every Body Texas has told clinics to err on the side of caution by getting parental consent, and a spokesperson for the non-profit organization has said they will continue to do so at least while they try to figure out the full implication of this new decision. The spokesperson said that it’s unlikely that advocates will appeal this decision to the Supreme Court because a national ruling on parental consent for birth control from a court that has proven itself unfriendly to reproductive rights could have negative repercussions for teens across the country.
5th Circuit Let’s Texas’ Anti-Porn Law Take Effect
Texans can no longer directly access Porn Hub and it’s not because they have a crumbling power grid. The porn giant turned off services in Texas as the result of an age-verification law theoretically designed to protect innocent children from pornography.
Texas House Bill 1181 required adult sites to verify age using government issued ID, digital ID, or other transactional data. Perhaps more telling of the legislative motives behind the bill, however, it also required sites to display the following misinformation before anyone—adults included—could see MILF-on-MILF action:
Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses and weakens brain function.
Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development and other emotional and mental illnesses.
Pornography increases the demand for prostitution, child exploitation and child pornography.
This echoes the GOP position that porn is a public health issue (which I’ve been writing about for many years), but it doesn’t echo or even closely resemble science.
Pornhub asked for an immediate injunction against the law saying the requirements impinged on free speech for adults and would have dangerous privacy repercussions. The site’s parent company claims it has no problem with the goal of preventing young people from accessing its content but says that putting the onus on content providers to do this will be dangerous to adults (who might have to upload a picture of their ID every time they want to access porn) and children (whose images might be captured by facial recognition software). Pornhub has long argued that the only safe form of age verification has to happen at the device level (read: it’s Apple’s and Google’s problem to solve, not ours). A district court agreed and issued an injunction that prevented the new law from taking effect in the fall.
Last week, the 5th Circuit lifted that injunction. A 3-judge panel upheld the age-verification requirements saying the state had a legitimate interest in preventing minors’ access to pornography and that the age verification requirement was sufficiently related to this interest.
The judges did, however, strike down the misinformation requirement saying the state did not prove that such warnings would be effective in reducing harm. The court was skeptical that a kid who had gotten around the age verification requirement would be deterred by the warning and also noted that the language was far above the reading level of most young people.
Eric Goldman, a law professor at Santa Clara University, has raised questions about the decision to leave the age verification requirements in place. He pointed out that the 5th Circuit used a 1968 ruling about selling porn to teens in person to justify its decision rather than relying on precedent set by courts post-interwebs. He thinks this decision could set the stage for "rampant government censorship." Goldman fully expects this issue to wind up in front of the Supreme Court in the near future.
In the meantime, Texans—like their friends in Arkansas, Mississippi, Montana, North Carolina, Virginia, and Utah—will have to beat the system (through the use of easy-to-set-up VPNs) before they can beat the meat.