Nov 2, 2021 - Podcasts

Surprises from SCOTUS on abortion

Yesterday, the Supreme Court heard oral arguments in two cases challenging the Texas law that allows private citizens to sue to enforce the state’s six-week abortion ban. One of the cases was brought by Whole Women’s Health, an abortion provider in Texas; the other by the Department of Justice.

  • Plus, the county at the heart of the Virginia governor’s race.
  • And, what Zuckerberg’s virtual metaverse means for our real-life bodies.

Guests: Jeffrey Rosen, president and CEO of the National Constitution Center and Axios' Cuneyt Dil and Scott Rosenberg

Credits: Axios Today is produced in partnership with Pushkin Industries. The team includes Niala Boodhoo, Sara Kehaulani Goo, Julia Redpath, Alexandra Botti, Nuria Marquez Martinez, Alex Sugiura, Sabeena Singhani, Lydia McMullen-Laird and David Toledo. Music is composed by Evan Viola. You can reach us at [email protected]. You can text questions, comments and story ideas to Niala as a text or voice memo to 202-918-4893.

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NIALA: Good morning! Welcome to Axios Today!

It’s Tuesday, November 2nd, 2021. I’m Niala Boodhoo.

Here’s what you need to know today: the county at the heart of the Virginia governor’s race. Plus, what Zuckerberg’s virtual metaverse means for our real-life bodies.

But first, today’s One Big Thing: the Supreme Court hears oral arguments around abortion.

The Supreme Court heard oral arguments Monday in two cases challenging the Texas abortion law that allows private citizens to sue to enforce the state's six week abortion ban. One of the cases was brought on by Whole Women's Health, an abortion provider in Texas; the other by the Department of Justice. If you've listened to these legal arguments yesterday, it can get pretty complex so here with us to unpack what we need to know is Jeffrey Rosen, president and CEO of the National Constitution Center. Hi Jeffrey.

JEFFREY ROSEN: Hi, good to talk.

NIALA: So Jeffrey there's two cases here - what was most surprising about the oral arguments that you heard yesterday?

JEFFREY: What was most surprising is that a majority of justices, liberal and conservative, seemed sympathetic to the idea that the Texas law, which is set up to make it really hard to challenge the constitutionality of banning abortions before Roe V. Wade says they're protected, should be able to be challenged. It was highly technical, but both Justice Brett Kavanaugh and Justice Amy Coney Barrett asked questions suggesting that they were sympathetic to the idea that a law set up to make it impossible for judges to review its constitutionality is problematic.

A lot of the discussion came down to the meaning of a 1908 decision it's called Ex Parte Young, which says that usually when you're trying to challenge an unconstitutional law, you sue the state official who is supposed to enforce it, but here state officials don't enforce the law. Any private individual and you don't even have to live in Texas can sue someone who helps you get an abortion and win $10,000. So what was so significant was Brett Kavanaugh said -

JUSTICE BRETT KAVANAUGH: There's a loop that's been exploited here or used here.

JEFFREY: That makes it impossible in Ex Parte Young to find some state officials that you can file suit against, maybe we should close that loophole cause the whole point of Ex Parte Young was to ensure that if the constitution was being violated, then there should be someone responsible for enforcing it in the state who could be sued.

NIALA: What does that mean for the case?

JEFFREY: That suggests that a majority of justices do seem likely to allow the abortion providers to pursue their federal court challenge. It doesn't tell us whether the law itself is constitutional. It would send the case back to the lower court. It also wasn't clear whether the court would stop the law from going forward while the case proceeds but it would mean that the constitutionality of the law could in fact be challenged in federal court.

NIALA: So Jeffrey, what are the big takeaways here? Because there's two different cases that we've been talking about, and this is not the only challenge or around Roe vs. Wade the Supreme Court is going to hear this term.

JEFFREY: The big takeaway is after three hours of really technical and important oral arguments, the justices were more sympathetic to the case brought by the Texas abortion providers than they were to the suit filed by the Biden administration because they didn't want to give the federal government that power to sue states really broadly. But a lot of the justices seem concerned, “Hey, if we allow this law to go into effect, then first amendment rights, and second amendment rights could be threatened by creating these really technical laws that are being enforced by what they called private bounty hunters and not by state officials.”

NIALA: Jeffrey Rosen is CEO of the National Constitution Center and also hosts the podcast, We The People. Thank you, Jeffrey.

JEFFREY: Thank you.

NIALA: We’ll be back in 15 seconds with one county to watch in Virginia on this election day.

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Welcome back to Axios Today. I'm Niala Boodhoo. It’s election day in Virginia today, with massive stakes for both parties in the governor's race. Tonight you’re going to be hearing a lot about places in Virginia - but Axios Local D.C. reporter Cuneyt Dil tells us there’s one county to watch especially closely -- both to forecast the result and understand the outcome - that’s Loudon County - Virginia’s fastest growing county. Hi Cuneyt.

CUNEYT DIL: Hi there. Thanks for having me.

NIALA: Cuneyt, can you set the stage for us who are Virginians voting for, for governor today?

CUNEYT: You have Democrat Terry McAuliffe, who has served as governor before in Virginia, one term. And you have Republican Glenn Youngkin, who is a former private equity CEO, and he’s running sort of this campaign, portraying himself as an outsider.

NIALA: And how close is it?

CUNEYT: It's very close - polls show that it's a toss up. Most of the polls going into election day have tightened and they're all within the margin of error.

NIALA: And why is Loudon county so important here?

CUNEYT: Loudon county is, as you said, the fastest growing county in Virginia. It was one sort of this sleepy place 40 miles outside of D.C. And now it's ground zero for a lot of these culture war debates that are happening across the country. And they've really sort of jolted the Virginia governor's race. It's an example of an American suburb that, it's diversifying, it's growing fast. It's also a county that for the last four election cycles has really powered democratic victories in Virginia statewide, once a Southern sort of conservative Republican state. And if Loudon county doesn't go big for McAuliffe, that would show a turnout problem for Democrats across Northern Virginia, probably across Virginia in general. But Republicans, if they pull off an upset and win in Virginia, they will see this as momentum and the playbook for races across the country, I think.

NIALA: That's Cuneyt Dil, a reporter with Axios Local D.C. Thanks, Cuneyt.

CUNEYT: Thank you.

​​NIALA: Last week Facebook announced it's changing its overarching brand to Meta as part of Mark Zuckerberg’s bigger move towards a digital so-called metaverse. But while your brain is in the metaverse, what happens to your body? Axios’ managing editor of technology Scott Rosenberg is here with that. Hey Scott.


​​NIALA: Okay, Scott, so in one line, what is actually the metaverse for those of us who are still confused?

SCOTT: It's like a 3D game dimension in which all the stuff that you currently do online, you know, at a keyboard and a screen or on your phone, you move into this new realm.

NIALA: So while our brains are in the metaverse of what is happening to us physically?

SCOTT: In demonstrating this direction that he's taking Facebook, now Meta in, Mark Zuckerberg played these videos that showed people flying around rooms and where, you know, one guy dressed as a robot and all sorts of like potentially cool looking seductive, fun things. But then you realize that to experience that today, what you have to do is put on a headset or goggles, and sit there. You're not actually moving your body most of the time and so that's the part of it that they don't show you.

NIALA: And do we also know if there are physical side effects to our brains being in a virtual world?

SCOTT: Some people have reactions that they get headaches and there are cases of people who actually have a sort of a nausea response. It's not widespread but it is possible. You know we already have many people concerned about how much screen time they spend, how much time they spend sitting in a chair at their desks. You know, we have Zoom fatigue from staring at people on the screen and when you first hear about the metaverse, it's supposed to be better, but I think a lot of observers are wondering, particularly at the current state of the art, of the technology, if it might be worse.

NIALA: Okay, so you can tell I consume a lot of sci fi by my next statement which is it sounds like we're not quite in the Ready Player One world yet then, huh?

SCOTT: No, not at all.

NIALA: Scott Rosenberg is our managing editor of technology at Axios. Thanks, Scott.

SCOTT: Thanks.

NIALA: And we’ll be looking more at the impact -- including the positive impact -- of virtual reality on our brains and mental health -- tell us if you have personal stories: text a voicememo to (202) 918-4893.

One last quick thing before we go: the Oxford English Dictionary yesterday chose it’s word of the year - and it’s an obvious one: “vax”. Here’s some spelling bee trivia around that. According to the Oxford Report, Vax as a word was first seen in 1799 - and its derivatives, vaccinate and vaccination first appeared in 1800. All come from the Latin word vacca, - or in classical Latin, waka - which means cow.

All of this is a good time to say: did you know Axios means worthy of in Greek? We hope we’ve been worthy of your time this morning.

I’m Niala Boodhoo - thanks for listening - stay safe and we’ll see you back here tomorrow morning.

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