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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. It was a decision day for the Supreme Court today. Tomorrow, they tell us, will be the last Supreme Court decision day of this term. Many major cases, one of them came down today. Some more will come down tomorrow. What we received this morning was the court's ruling on Medina v. Planned Parenthood. Michael just referred to it in the news. We're going to talk about that now with Kate Shaw, law professor at Penn and co-host of the legal affairs podcast Strict Scrutiny. Professor Shaw, welcome back to WNYC.

Kate Shaw: Thanks so much for having me, Brian.

Brian Lehrer: Brief our listeners with some background. What is, what was Medina v. Planned Parenthood?

Kate Shaw: Sure. This is a case involving a state effort. This is South Carolina's effort to defund Planned Parenthood. A number of states have tried to do that. This was South Carolina's effort. Some individual plaintiffs and also providers sued the state under a statute called 42 USC Section 1983. It's a federal statute that basically allows private individuals to sue to enforce their constitutional or statutory rights. Hugely important reconstruction statute that still gets used all the time.

1983 is the vehicle, but the specific statutory argument they were making is based on the Medicaid statute, which says that if you're a Medicaid recipient, and that's, of course, the state-federal merging scheme that provides health insurance to low-income individuals. If you're a Medicaid recipient, you are entitled to receive services from qualified providers. That's in the federal statute. What these plaintiffs have argued is that Planned Parenthood is a qualified provider, and so under the Medicaid statute, it was improper for the state to defund Planned Parenthood, making it impossible for them to receive their care from these defunded Planned Parenthood providers.

So sorry if that sounds a little complicated, but basically the gist is that the majority here said that these individuals do not have a right under section 1983 to sue to enforce their entitlement to services under the Medicaid statute. I think that has both a practical implication and a larger legal import. The practical implication is that it's going to be much easier for states to target Planned Parenthood, and no one will be able to sue to challenge that targeting. More broadly, Section 1983 is this long-standing key enforcer of various constitutional and statutory rights.

The Supreme Court has now said it will be much harder to use Section 1983 to enforce rights under either the Medicaid statute or, more broadly, under federal statutes.

Brian Lehrer: Looking at some quotes from the decision written by Justice Gorsuch, he explains that Medicaid is "a bargain," he uses that word, in which states receive federal funding on the condition that they comply with Congress. Therefore, "if a state does not comply, the Secretary of Health and Human Services can withhold Medicaid funding." Can you decode that reasoning within this decision and other things, maybe conditions that people on the left may have supported and people on the right may have opposed, if those exist, that Congress has previously placed on states with their use of Medicaid funding?

Kate Shaw: Sure. Maybe we could just talk more broadly. Whenever the federal government acts, when Congress passes a statute, it has to have some constitutional authority to do that. This is a statute passed under the spending clause that just gives Congress the power to spend money. It spends money, and again, it spends money in partnership with the states, which also spend money on the Medicaid program. The federal money comes with conditions attached. One of those conditions is essentially that individuals who are recipients of Medicaid are supposed to be able to see qualified providers.

What the opinion seems to say is that when Congress acts under the spending clause, it's only in most cases the federal government that can ensure that states are complying with the terms imposed on them by these federal programs. If private individuals can't sue to enforce, again, say, provisions of the Medicaid statute, it's only the federal government that can do that. if you have the federal government and state governments aligned on, say, a platform of trying to eliminate all access to abortion, which South Carolina has already done statutorily--

Planned Parenthood is not using Medicaid funds for providing abortions, but because Planned Parenthood, in a political imagination, is associated with the provision of abortion care even if it's not providing abortion services, there is political gain to be had in targeting Planned Parenthood. Even when it's simply providing all kinds of preventative cancer screening, ordinary OB/GYN care. Many, many other things that Planned Parenthood provides.

The import is that if the federal government isn't going to ensure compliance with the requirements of this federal statute and private individuals can't, it's not clear what, if anything, is going to happen if states actually don't comply with the requirements that federal statutes impose on them.

Brian Lehrer: I'm seeing that in her dissent, Justice Ketanji Brown Jackson likened this decision to the civil rights cases in general or a number of civil rights cases. Also, US v. Cruikshank. What's the comparison she's making?

Kate Shaw: It's a very, very powerful dissent. She is basically arguing that, as I said, Section 1983 is a Reconstruction Era civil rights statute. It's passed after the Civil War. In the wake of the Civil War, the Constitution is amended to add the 14th amendment, 13th, 14th, and 15th amendments. 14th Amendment guarantees the equal protection of the laws, but without statutes that actually give content to that equality guarantee. The constitutional language was not necessarily effective at actually bringing about conditions of meaningful equality. Congress passed a lot of statutes, including statutes that gave individuals the right to sue if they were being deprived of rights.

This is one of those critical, really ambitious federal statutes that was largely about giving individuals the right to challenge states when states violated rights. She says obviously this case is important because of what it means about access to health care, but by making it so difficult for individuals to bring federal suits when states violate their rights. This is essentially inconsistent with this core promise of the post-Civil War Reconstruction Congress that tried to pass big broad federal statutes that let private parties enforce their rights. In particular, where states like say South Carolina were trying to violate the rights of individuals. She says this case has to be understood in a broader historical context.

Brian Lehrer: According to Reuters, the decision has cleared the way for South Carolina. I guess it was a South Carolina case to strip Planned Parenthood of funding from Medicaid. Are there other Republican led states ready to enact similar moves, and does it automatically apply to them?

Kate Shaw: Yes. I think that essentially because the target here is the individual's inability, according to the majority, to bring a federal statutory challenge if a state acts to say, target Planned Parenthood, and does it in a way that might violate or at least be in tension with the Medicaid statute, absolutely. This essentially insulates other Republican led states, of which I imagine there will be many, if they wish to target Planned Parenthood in a way that is similar to the way that South Carolina has done.

Brian Lehrer: This is a standing case. I'm just getting the details as I'm listening to you. The rights of a state were elevated above the rights of an individual Medicaid recipient. Am I hearing you right?

Kate Shaw: It's not exactly standing. It's simply about the ability of an individual to bring this kind of challenge. Individuals might be injured, but where a statute is passed by Congress under the spending clause, it is only if the statutory language very, very clearly, according to the majority, explicitly gives an individual the right to go to court to challenge a violation, say, of the statute. Only then can Section 1983, this reconstruction statute, be used to challenge compliance with another statute.

It's somewhat complicated because you have both 1983 and the Medicaid statute. This holding as to the heightened requirements on Congress if it wants to give private parties the right to enforce statutory provisions applies, I think, beyond just the Medicaid statute. In terms of Brian, what you said, elevating the rights of states, I think that's right. It disempowers individuals as private plaintiffs from suing to challenge violations of rights. Here, it is states, the state of South Carolina, that is allegedly violating the rights of individuals to choose and see qualified providers as federal statute allows.

I think it is both empowering the federal government and empowering state governments and disempowering private individuals who might be injured and might have plausible legal claims, but there's now this heightened requirement for their ability to actually get through the courthouse doors.

Brian Lehrer: Listeners, we can take Supreme Court calls for University of Pennsylvania Carey Law School professor Kate Shaw, also co-host of the Supreme Court-oriented podcast, Strict Scrutiny, and a contributing opinion writer with the New York Times. 212-433-WNYC on this case or any other. 212-433-9692. Call or text. As we wait for other major decisions to come down, maybe still this morning and some remaining ones tomorrow, I want to ask you about a decision from the Supreme Court that came down through the so-called shadow docket earlier in the week.

It was a 6:3 vote on Monday, and the court affirmed the Trump administration's right to deport migrants to third countries, meaning they can be sent to countries other than where they came from. The decision seems to open the door to allowing deportation flights to continue to places like South Sudan and El Salvador, often without due process and despite the risk of torture or death, at least to some of those individuals. Tell us about what the actual question was and who it applies to.

Kate Shaw: Sure. As you said, Brian, this was a case that the court decided on its so-called shadow docket. Those are decisions that are-- they're not issued the way this morning's opinions were issued. On ordinary announcement days like today, the Supreme Court tells us, "At 10:00 AM, we're going to have opinions in argued cases." The justices actually take the bench, and they read a summary of those opinions, and then we take them and read the full opinions and digest them. The shadow docket operates differently. Cases that come before the court in the shadow docket are not subject to full briefing. There aren't oral arguments. The justices don't take the bench to announce them.

They just essentially pop up on the Supreme Court's website as these orders, and they're often not signed. Frequently, as in this case, there's not even any reasoning given. That's the way we learned about this case on Monday evening. At issue in this case are what are known as third-country removals. These are removals by an individual who has an order of removal, but removals that are going to be to a country other than the one designated in the order of removal. Usually, that's someone's country of origin.

The law does have a provision for the government to order individuals removed to third countries, including to countries that an individual might have literally no connection to under narrow circumstances. There's also, under US Law and a treaty, the Convention Against Torture, an entitlement to some due process to be sure that individuals who are going to be removed to a third country will not be subject to torture or inhumane treatment if they're going to be removed. In this case, there was a challenge in lower courts, and the plaintiffs basically said the government didn't comply with that requirement, gave them essentially no process when designated them for removal to third countries.

This happened actually first to an individual sent to Guatemala by way of Mexico, and then the government tried to deport a group of individuals to Libya unsuccessfully, and then to South Sudan. In the litigation that arose while individuals were being designated for removal to South Sudan, the lower court agreed that the government wasn't complying with this requirement that it give meaningful notice and an opportunity to object to these individuals, and so issued an injunction. There is actually a plane with individuals who were initially bound for South Sudan, but that has been in Djibouti, essentially in limbo, while this litigation was ongoing.

The lower courts basically said individuals just have to be given some opportunity to object to say they are fearful of torture. They didn't have a previous opportunity to say, "We're afraid of being sent to South Sudan," because they were not told until essentially the eve of removal that that's where they were going to be sent. The Supreme Court on Monday evening stayed the lower court injunction without any explanation at all. Meaning essentially opening the door to the government resuming these removals to third countries, maybe without any meaningful process at all.

Brian Lehrer: That plane that you just mentioned that was in limbo, it was able to proceed to South Sudan?

Kate Shaw: Actually, no, because there has been some intervening development. The Supreme Court issued this order, but gave no reasoning. It was very hard to understand what it was the Supreme Court thought the lower court had gotten wrong when it found that some due process was owed. The lower court actually said that as to that plane with a small number of individuals, they were subject to a different order, not the order that the Supreme Court was technically reviewing in the decision that it issued on Monday. The district court's order, according to the district court, remains in effect as to that plane.

Actually, the Trump Justice Department yesterday filed a request for clarification of this to the Supreme Court, essentially saying the district Court, by saying that plane had to stay grounded, was defying the Supreme Court's order, although again, there was no reasoning in the order, so it was hard to know exactly what it meant. I think we could very well get another decision, maybe even later today. Again, because it's the shadow docket, an order can come at any time. The Supreme Court might be forced to tell us a bit what it meant.

I think the fact that the district court thought there was an opening in the opinion because it just wasn't clear what it meant reveals just how much chaos and uncertainty the Supreme Court can engender when it intervenes in these incredibly high-stakes cases without providing any kind of reasoning at all. These individuals bound for South Sudan, I think maybe one of them is Sudanese, but the others are from Southeast Asia. No meaningful connection that we're aware of to South Sudan. Again, until essentially the day before they were placed on this plane, they had no reason to even know, let alone prepare a legal challenge to their being sent to this place, because it was never on the table.

They're not actually even challenging the government's power to effect these third-country removals. They're simply saying due process has to be granted before the removals happen. That's what the fight is over.

Brian Lehrer: I'm confused about where the Supreme Court stands on due process overall now with respect to deportations. I thought that in the Abrego Garcia case, besides the fact that the court acknowledged that the government acknowledged that he was deported to El Salvador by mistake and so they should bring him back, I thought there was a due process ruling in that, too, that said he should have the right to challenge his deportation before it occurs. Now, you're saying in this ruling also about deportations to countries the people didn't come from, there's no due process, according to this ruling that was issued without an explanation. Can you clear it up for me?

Kate Shaw: I wish I could. I think there is just irreconcilable tension between what the Supreme Court has said in both the Abrego Garcia case and the other lawsuit also involving these removals under the alien enemy, Zach. Abrego Garcia's case came up out of Maryland. Then there was a group of individuals who filed challenges in the District of DC that was before Judge Boasberg. You had two separate cases, both involving individuals who were designated for removal under this 1798 Alien Enemies Act. One was a group, and then one was Abrego Garcia.

In the case involving the group of individuals, the court was really explicit. All nine justices agreed that due process had to be afforded to individuals before they were removed in these cases, where the government was relying on their designation as enemies, essentially under the 1798 Alien Enemies Act that it said it was using against members of the Tren de Aragua gang. So the court has actually been really clear. Due process applies. It's not suspended. Even when the government says, "We have serious concerns about individuals or they're members of gangs," or "This gang is involved in an invasion or predatory incursion," that does not suspend the requirements of due process.

It's very difficult to see why that core requirement of due process would not also apply in this case. Again, that's essentially all the individuals designated for removal are asking for. Yet the Supreme Court has created this very deep tension with its previous statements in the Alien Enemies Act cases and this case by not saying anything at all. I think it's going to have to provide some degree of clarification as to why it came down differently in this case. To my mind, it's very hard to even imagine what a principal justification for finding that no due process is owed here, where it is owed in the Alien Enemies Act context.

Brian Lehrer: This may not be a legal question per se, but do you even understand the administration's motivation for wanting to deport people to countries that they didn't come from?

Kate Shaw: There's some broad language in the statute that gives the government the power to do this that basically says individuals can be removed to countries that the statute describes as third countries if sending an individual to their either country of origin or country of citizenship, if that's not the same or other country they resided in. Those are the natural places that somebody would be sent if they are subject to an order of removal.

Then there is a broad provision in the statute that basically says where it is impracticable or inadvisable or impossible to remove an individual to one of those more natural countries, then the government may designate another country whose government will accept the individual into that country. I think the general claim is that the government has had difficulty obtaining permission from the country of origin or other more natural destinations. It has obtained permission from countries like South Sudan, presumably. These are individuals who are convicted of crimes, and serious crimes, some of them.

It may be that there are diplomatic difficulties in obtaining permission to send or to return to home countries. I can't sit here and manufacture a defensible policy position. It's, again, to my mind, very difficult to conceive of any reasonable or defensible basis on which an individual from-- these are individuals from Myanmar and Laos and far from South Sudan could defensibly and humanely be sent to a place like South Sudan, which not only do they have no connection to, but also is a profoundly unstable place.

Brian Lehrer: Considered one of the worst places in the world these days, with the war that's going on there and the effect on the civilian population. On what you just said, listener text something related. Doesn't removal to a third country constitute cruel and unusual punishment? That, of course, is prohibited by the Constitution, but I don't know that that was the grounds for the challenge.

Kate Shaw: No, there was no real constitutional challenge. It's simply an argument that there's this treaty, the Convention Against Torture, that we're signatory to. There are general due process requirements. I guess there are due process arguments. It certainly doesn't seem frivolous to suggest that a cruel and unusual punishment prohibition would, at least in general terms, be implicated here. A removal is not a sentence in the ordinary criminal sense, and it is usually criminal sentences that the Eighth Amendment's prohibition applies to. Certainly, broad constitutional principles against cruel and unusual punishments and in favor of due process would seem to me to raise real questions about this practice.

Again, even though I think these third-country removals do raise sort of deep questions, they're not even being challenged. The government has the power to do it under a statute. Whether that's a wise or humane statute or not, all these individuals are arguing is that they need some opportunity to make out a showing that they're likely to face torture in here, South Sudan, but any third country to which they might be sent. That's all the lower court essentially found was required, and that's what the Supreme Court put on hold.

Brian Lehrer: I think a lot of listeners probably know that where Abrego Garcia was sent and some others to El Salvador was to that prison that had a particularly harsh reputation for how people were treated. Is there something like that in South Sudan that some of these others are being sent to? Is that the reason for South Sudan? If you know.

Kate Shaw: I don't know. I don't believe the government has suggested there is such a facility or the same kind of agreement as the government has explained exists with El Salvador and this CECOT Terrorism Confinement Center. There was there were other individuals, I think also some from Southeast Asia, deported to Central America early in the administration. There was essentially a short-term hotel-like holding sort of arrangement. Then individuals later ended up-- and this is all just from reporting that I've seen but ended up making their way where they could to their home countries.

Those earlier removals to third countries at least involved a designated initial landing spot for individuals. I don't know if there is such an arrangement in place in the context of South Sudan.

Brian Lehrer: We'll continue in a minute when we come back from a break with University of Pennsylvania law Professor Kate Shaw talking about things the Supreme Court did this week. We're going to talk about some things that they're obviously going to do tomorrow because there are a number of cases left on the regular docket, and the session for the year ends tomorrow, or for the term that ends at the end of June, will definitely be decided tomorrow. We'll give you a preview on that. 212-433-WNYC, if you want to have any more input on a call, with a call, or a text. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC. Another few minutes with University of Pennsylvania law professor Kate Shaw, also co-host of the Supreme Court-oriented podcast Strict Scrutiny and a New York Times opinion columnist. We have a few people calling in about another deportation case, that they're wondering how it's being resolved. Let's see if you know Professor Shaw, it's Jim in Brick, who's going to represent. Jim, you're on WNYC. Hello.

Jim: Oh, hi. Good morning. Yes, the Romero case, I believe that was his last name. He was a gay hairdresser who was rounded up along, I believe with the same roundup that Abrego Garcia was, or at least the same allegations were based on tattoos and such, but that Abrego Garcia was called back and then charged with trafficking. This other Romero individual, what happened? I don't know. I didn't hear anything.

Brian Lehrer: Do you know this case, Professor Shaw?

Kate Shaw: Yes. So this is Andry Hernández Romero, who I think is one of the 200-plus Venezuelan migrants who were in those early groups of planes that went to El Salvador, maybe even the same one that Abrego Garcia was on. Although, of course, Abrego Garcia is El Salvadoran, and I think Romero is a Venezuelan. Abrego Garcia, of course, filed a lawsuit, and his claim was somewhat different. It was that he wasn't even in the category of individuals designated for removal under the Alien Enemies Act because that designation applied solely to Venezuelan nationals.

I do think Romero is Venezuelan, but it sounds like there is a very substantial likelihood that he was rounded up in error and has continued to be detained in error. He and a number of other individuals I know that there has been both a degree of a social media campaign, and he is involved in, I'm not sure if it's individual litigation or the class litigation. At the moment, the lower courts have focused on a couple of things. One, making clear that due process has to be afforded before any other individual can be sent to CECOT. I think since the Supreme Court made clear that due process did apply, there have been no additional deportations to this prison.

As to that initial group of 230 or 240 individuals, to my knowledge, Abrego Garcia is the only one who has returned. Again, his legal status is somewhat different, but I do think that the logical conclusion of the court's finding that due process is required does and should mean that individuals who were initially sent without any due process to this prison should be able to be removed to essentially get process here in the United States.

I'm not sure if the federal government will continue to fight that in the way it initially continued to fight, but then clearly did capitulate in the context of allowing the return or facilitating the return of Abrego Garcia to be charged federally separate from the immigration procedures that he was already subject to prior to the removal. I guess I'll just say I'm glad your caller has mentioned the case of Andry Hernández Romero because it is not just Abrego Garcia. There may well be a number of individuals in CECOT who were in error, rounded up and sent to this prison without yet having received any meaningful process. I think it's important to keep public attention focused on them.

Brian Lehrer: Okay, we've got about three minutes left, or two and a half. A number of cases are going to be announced. The rulings are going to be announced tomorrow. We know one is the birthright citizenship case. We've talked about that so much in previewing the end of the term. Then I want to know what else you're looking for tomorrow that you think is really consequential.

Kate Shaw: Sure. That certainly is the big one, but there are five additional cases. One, Mahmoud v. Taylor, is a case that involves both religious liberty and LGBT equality. This is a case involving Maryland parents who objected on religious grounds to their children being in classrooms where there was reading from and exposure to these storybooks, some of which had LGBT themes or characters.

If the court agrees with these parents that they have essentially a religious right to object to the exposure of their children to these contents, I think that creates a world of complications for public school instructors who will either have to be fielding tons of these opt outs on the part of individual parents or are going to make decisions to remove from curriculum any material or content that might offend some subset of parents in a way that I think is going to be really difficult to do in a pluralistic society where you want a lot of different voices and experiences represented in classrooms.

That I think is a very significant case. There's Paxton v. Free Speech Coalition, which is a case involving a Texas age verification requirement for access to adult websites. There's an important voting rights case, Louisiana v. Callais, that might give the court further opportunity to narrow the scope and power of the Federal Voting Rights Act. A case involving a doctrine called the non-delegation doctrine, just about how much power Congress can essentially give to federal agencies, and a case about a federal entity, the Preventive Services Task Force, and whether the way it is composed violates the Constitution.

Some more technical legal cases, but some about these very important, high salience issues that I think will impact a lot of people.

Brian Lehrer: Question coming in on that education case you were just describing, can a child with two moms or a trans parent not talk about their parents if the court sides with the one side on that?

Kate Shaw: It's a great question. I think both the case, the constitutional questions in a case this and efforts of states like Florida, which enacted initially, do you remember the Don't Say Gay law, raised the same question. What about a teacher who is in a same sex marriage and has a picture of their spouse on their desk? Is that inconsistent? I think that when it comes to teachers and when it comes to students, a ruling that is too protective of parents' religious liberty rights might butt up against the equality and full participation rights of students and teachers if they're going to be able to interact with their students and colleagues in a way that is just faithful to and truthful about their own experiences.

I presume the court will limit the ruling to formal curricular matters and make clear that schools didn't have an obligation to silence people talking about their own experiences.

Brian Lehrer: Kate Shaw, University of Pennsylvania law professor, co-host of the Supreme Court-oriented podcast Strict Scrutiny, and a New York Times opinion contributor, thank you for coming on yet again and breaking down Supreme Court cases. We really appreciate it.

Kate Shaw: Thanks so much for having me, Brian.

Brian Lehrer: That's the Brian Lehrer Show for today. Thanks for listening and participating, everybody, and stay tuned for Alison.

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