Brian Steward had to come back on the show due to the changing nature of the litigation and rulings coming out of the courts about Planned Parenthood's fight with the State of Texas.

Transcript:

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Justin Hill: Hello and bienvenido, San Antonio. Welcome to The Alamo Hour, discussing the people, places, and passion that make our city. My name is Justin Hill, a local attorney, a proud San Antonion, and keeper of chickens and bees. On The Alamo Hour, you'll get to hear from the people that make San Antonio great and unique and the best-kept secret in Texas. We're glad that you're here.

Okay, welcome to The Alamo Hour. This is our first attempt at a bonus episode. We have Brian Steward with us. He's rejoined us today. He will be the guest on tomorrow, which will be today's episode of The Alamo Hour, discussing Planned Parenthood's lawsuit and ongoing issues in the fight with Texas over reproductive rights and what COVID-19 means for people who are trying to exercise what has been determined to be a constitutional right to access the reproductive freedom or rights.

When he was last on the show, we discussed the course of a legal fight between the State of Texas and Planned Parenthood that centered around, as you just heard, whether or not access to abortion, abortion procedures would be outlawed during Abbott's ruling that non-essential medical procedures are put on hold during the pendency of the emergency order related to COVID-19. After his order, the next day, the Attorney General said that it includes abortion and abortion procedures. The Texas Medical Board weighed in. A lawsuit was filed. Austin Federal Judge Lee Yeakel basically said, "We're going to put that ruling on hold and allow access to reproductive rights and abortion procedures to continue until I get some evidence from you all, and we'll have a hearing--" April 13th was that, right?

Brian Steward: April 13th.

Justin Hill: Then in the meantime, that got appealed to the Fifth Circuit. As we sit here today, about 35 hours ago, I think if I'm right, somewhere around that, the Fifth Circuit weighed in. As we sit here right now, Brian, what is the status of reproductive rights in the State of Texas? What is the next step forward for Planned Parenthood or the State of Texas in this fight?

Brian Steward: I'm going to answer your question and back up a little bit. As of 2:30 this afternoon, it's Thursday, April 9th, 2020, Judge Yeakel, who's in the Austin Western District, requested a hearing with the various parties to this litigation. In that hearing, he requested information about the pending lawsuit, the pending litigation, and evidence. You did a great job of walking us through this procedure-

Justin Hill: Thank you.

Brian Steward: -and walking us through these last 30 plus days, but I want to go back through it because there are certain things that are going to be really important. There are certain things that have been clarified since the last time we met. Thank you for allowing me to come back again.

Justin Hill: It's always good to see you. We're actually just so- we're supporting local. We're drinking some local beer from a Boerne Texas Brewery. We're trying to support local as we also try to give people something to listen to that's not COVID-19. It's a heavy, heavy deal. Let's have a conversation that is not focused on that necessarily. I mean, there's hinges on that, but it's a real legal issue going on. So walk us back through and fill in the gaps that I missed.

Brian Steward: All right, so let's back up. COVID-19, we're all aware of it now. We may not have taken it as seriously as some, but certainly we're on this path, and we can walk back to March the 22nd, 2020. That's when the governor, Greg Abbott, issued Executive Order GA-09, which postponed non-essential surgeries until April the 21st, 2020 at 11:59. What is that mean? It meant that surgeries which were not considered essential under some amorphous rules were deemed to be not necessary, and as such shouldn't be performed. None of us knew what that meant.

I can tell you that these types of orders have been coming from various places across the nation. Whether it's North Carolina or Michigan, we have had these orders, and they've been issued, and we've all wondered what that meant. As a board member of Planned Parenthood, South Texas, obviously, there was some communication about that because on March the 23rd, 2020, the Attorney General for the fine State of Texas issued a press release. In his press release, he specifically mentioned abortion providers, and the fact that that was non-essential, and as such, we shouldn't be able to proceed with abortions. So elective abortions, or pre-viable fetuses in the State of Texas.

On March 25th, 2020, Texas abortion providers and a specific provider up in Dallas filed suit and sought a temporary restraining order on this executive order. This is executive order, again, GA-09. Essentially, they said that there are substantive due process issues, as well as equal protection claims, and sought to enjoin enforcement of this executive order. Also, it sought the implementation of a rule which stopped the Texas Medical Board emergency rule from implementing this order, which was important because while the order, in essence, said that there were going to be civil penalties as well as potential jail time, the most important thing for healthcare providers was the fact that under the Texas Medical Board, they were going to implement this.

That meant that various doctors might lose their license, might lose their ability. On March the 26th, 2020, after this lawsuit was filed, Judge Yeakel, who's in the Western District in Austin, gave the parties until March the 30th, 2020 to provide briefing. That was done. Briefs were exchanged on March the 20th, 2020. Judge Yeakel issued a temporary restraining order against the executive order, which was issued by, of course, Greg Abbott.

Justin Hill: What day was the TRO entered, because I've got my dates off?

Brian Steward: Sure. The TRO was entered, it was issued on March the 30th, 2020 by Judge Yeakel.

Justin Hill: You said the 20th. Sorry, that was--[crostalks] March 30th is when Yeakel entered the TRO.

Brian Steward: What the TRO said, and it was well written, and if you have the opportunity to read it, please Google it or Google Scholar it because it's well written. There's a lot of beneath the scenes that is connected to that order. But essentially what it said is, it acknowledged the healthcare emergency, obviously. It found that under the circumstances the language of GA-09, which is this executive order from Greg Abbott, it effectively banned all abortions before viability. That's important because that fits into other precedent. It fits into other cases. We're going to get to that when we get to the Fifth Circuit, but Judge Yeakel obviously sees that, and says, "Okay."

Based upon what he sees and how he interprets the briefing and how he interprets the information that was provided to him, this executive order contravenes the Supreme Court and Fifth Circuit precedent. Ultimately, he decided that this executive order cannot be enforced. This is a temporary restraining order, which means that the next part is going to be a preliminary injunction hearing. That was scheduled on April the 13th, 2020. The expectation according to the order was that we're going to hear evidence at that time on the validity of applying this executive order to specific restrictions. What that means in this fight, in this reproductive rights fight is this.

There's a difference between medication abortions with a medication called mifepristone, and surgical abortions. Surgical abortions, if you think back to Roe versus Wade and its progeny, surgical abortions are D&Cs, dilation and curettage. There were instruments are introduced. Medical abortions or simply medication. There are references in that initial opinion from Judge Yeakel which precede and pre-focus on us, on what is coming. We get that. Now, on March the 30th, 2020, the State of Texas as expected sought a writ of mandamus against the order, which means the State of Texas went to the Fifth Circuit, which is above the Western District federal district court judge level, and said, "Okay, we need an emergency stay of the TRO which Judge Yeakel had issued. We also need a temporary stay of the administrative stay from the Texas medical board, and we need for you the circuit panel, which is going to be three justices, to take in information and ultimately make some rulings with respect to this TRO."

Justin Hill: What day was that that the State of Texas asked for an emergency stay?

Brian Steward: The State of Texas asked for the emergency stay on March the 30th, 2020.

Justin Hill: So right after the TRO was entered?

Brian Steward: Absolutely.

Justin Hill: Just to get the legal ease out of it, the trial court Judge Lee Yeakel is the first level of the courts for anybody who have a dispute, they're going to file- same and except- very random exceptions, and very rare exceptions. After that, the Fifth Circuit is the next level of appeals that somebody goes to if they have an issue they want to file, and then from then on it goes to the US Supreme Court, which everybody's heard of and everybody knows what they do. The State of Texas said effectively we got a TRO, which means Judge Yeakel in Austin said, "We're not going to enforce this order just yet until I get the hearing on the 13th," right?

Brian Steward: That's right.

Justin Hill: The State of Texas said, "This is such an emergency that we can't wait 14 days that we need to have this determined now, Fifth Circuit." That's where we are now, which the Fifth Circuit is starting to weigh in. What was the process once it got to the Fifth Circuit?

Brian Steward: Sure. I think what you just pointed out is really important because mandamus, which is one of these legal terms, it really translates into something fairly important for all of us. What it means is mandamus is proper only in exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion. So essentially, what the State of Texas did is they said this Western District trial court judge, Judge Yeakel, has usurped the power of the fine State of Texas. We're going to get to that when we get to the ultimate ruling from the Fifth Circuit, but essentially, it's saying that, "Judge, you did wrong, and the only way for us to figure out and change what you've done is to go to Fifth Circuit [crosstalk]"

Justin Hill: Immediately. Emergently.[crosstalk]

Brian Steward: Right, because if we don't go emergently, there are going to be problems which we cannot solve. So within this window, and again, this writ of mandamus was filed on March 30th, 2020. On March the 31st, 2020, the Fifth Circuit comprised of a panel of three temporarily stayed, which means they said, "Okay, the TRO which Judge Yeakel had issued, we're going to hold off on that, and we're going to set an expedited briefing schedule," which means they wanted additional information from both sides about this issue. Meaning they wanted information about how this truly would impact the people of the State of Texas, but also whether the rulings from Judge Yeakel were appropriate.

So briefing was exchanged, and actually things were fairly quiet. It was weird, until April the 7th, and I think it's April the 9th today, my days blend together. But on April the 7th, 2020, the Fifth Circuit granted the writ of mandamus, which again is extraordinary remedy, which says that our trial court judge, Judge Yeakel, has done some things wrong. I want to talk about the reasoning because it's important because I think it's going to predict to all of us where this thing goes. You made some mention about the United States Supreme Court, that's a possibility. But in the short-term, this goes back to the Western District and Judge Yeakel. That's really important because of his history.

Justin Hill: What I think is just so bizarre is we're in the middle of a global pandemic. We have a situation nobody's ever seen in our lifetimes in which people are told don't go to work, people are told keep your distance from other people, people are told accept losing your job, and trying to get government assistance because we're in such a terrible situation. And this microcosm of a 40-year political fight of abortion with the State of Texas and our taxpayer dollars is playing out-- Political inclinations aside, this is bizarre that we are 22 days from Abbott's order saying we have an emergency, withhold non-essential medical procedures, and we have hundreds, if not thousands of man-hours, including taxpayer dollar man-hours fighting something like this.

To me, this is politics aside, I don't think this is the best use of our state's time and money. That's for other people and voters to decide, but this is a wild ride of a lot of legal complexities and strange movement. And now we're at the Fifth Circuit when you say they stayed the TRO, just to put that in normal terms, they're saying, "We're going back to Abbott and Paxton's order. So ignore what Yeakel did, ignore what they did at the District Court, we're going back to Paxton's order of all reproductive right procedures, abortion procedures are put on hold due to COVID-19." What was the reasoning of Fifth Circuit?

Brian Steward: The reasoning of the Fifth Circuit is fascinating. I was a history major in undergrad, I still enjoy history. I can tell you that when you look at constitutional law cases, I don't even pretend to be a constitutional law scholar. When you look at constitutional law cases, you're always amazed. So here's where they went. States like the State of Texas, like North Carolina, like Michigan, have a state police power, and the state police power gives them certain rights in certain emergencies. There are things called emergency public health measures. And what the Fifth Circuit did is they went to a 1905 emergency health case, which is called Jacobson versus the Commonwealth of Massachusetts.

Justin Hill: You mean pre-Roe v. Wade?

Brian Steward: By at least 62 years.

Justin Hill: All right, so we went way back.

Brian Steward: Let me tell you what Jacobson was about-[crosstalk]

Justin Hill: Pre-World War I.

Brian Steward: Yes. Let me tell you what Jacobson's was about because it's really important when you think about this, and it may precede or preview some things that may be coming. What that case dealt with, and I'm going to give you the highlights because I think that's important. Here's one of the holdings from that 1905 US Supreme Court. Under the pressure of great dangers, constitutional rights may be reasonably restricted as the safety of the general public demand. That's general and that's fine, but this dealt with smallpox. It dealt with smallpox in the Commonwealth of Massachusetts, and what it dealt with was an individual who said, "I'm not getting the damn smallpox vaccination. I'm not doing this."

Listen, vaxxers, because this could be coming your way. What the Commonwealth said is, "No, wait, hold on. We're looking at the general well-being of the general populace, so if we want to enforce this, we're going to be able to do it because we have the state police power, and this general response is going to protect more of the people than the limited number of people who might not want to get this." The United States Supreme Court in 1905, please don't forget the 1905 part because it's important. They said, "You know, you're right. The state has certain police powers, and within the constraints of the Bill of Rights and other amendments, because remember, there are other amendments which aren't in existence at that point as you look to the '60s, we're going to permit this to take place."

That was the first punch that was thrown. It was this whole Jacobson versus Commonwealth of Massachusetts case. It's a 1905 case, which preceded much of the litigation and much of the legislation which we all deem important to our everyday lives. The second part was simply this. There was a case after Roe v. Wade called Casey. It was Planned Parenthood of I think it's Southeast-[crosstalk]

Justin Hill: Wasn't it Pennsylvania?

Brian Steward: Yes. Southeast of Pennsylvania which looked at the restrictions because, of course, Roe v. Wade said it recognized the right of privacy and the right of women to have abortion for pre-viable fetuses. Casey was the case, and which 17 years later, which essentially gave you parameters, and looked at pre-viability issues and said, "Okay, here's what the parameters are, here's what the legislation from the states can be. Here's how we can make this work." So the Fifth Circuit, when it's looking at this ruling, says, "Okay, Judge Yeakel, you failed to apply the Casey undue burden analysis. You fail to balance the executive orders temporary burdens on abortion," because remember, the executive order placed a restriction on these non-essential surgeries until April 21st at 11:19. But the fun one was this, you usurped the state's authority to craft emergency health measures, which you didn't even pretend to do.

The court then gave itself sort of a pat on the back and said, "Given the extraordinary nature of these errors, the state's critical interest in protecting public health, we find the requirements for the issuing of the writ satisfied." In other words, we need to enforce GA-09, this executive order, and these non-essential procedures need to be stopped and we need to protect the fine citizens of the state of Texas. Then there was this comment made in the ruling which is really important because it shows you how confusing all of this is. Based upon the prior ruling from Judge Yeakel, there was a telephonic...