Brian Steward, Attorney and Planned Parenthood Board Member Discusses Covid-19 Legal Issues

Brian Steward joins and walks us through the fight between the State of Texas and Planned Parenthood regarding the state’s attempt to ban all abortions and non-essential medical procedures during the COVID-19 shutdown. He also discusses growing up in San Antonio and his involvement with the zoo. Great discussion on some very specific COVID-19 related legal issues.


Justin Hill: Hello and Bienvenidos 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 Antonio 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.

Hello, and welcome. Today’s guest is Brian Steward. Brian is a board member of the San Antonio zoo formal board member of the San Antonio public library foundation or system. A board member of Planned Parenthood of Texas. He’s a dad, he’s a husband. He’s a local injury lawyer and I won’t hold it against him, but at one point he was a defense lawyer. For those who don’t know, that means he’s the guy that tries to keep people from getting justice in the courthouse, not criminal defense those guys are still good.

We’ve asked Brian on here today to talk about a few things, but one thing he’s going to talk about is the fight with the state, between the state and Planned Parenthood. This is not a political show and it’s not going to be, but it is something that’s happening in the state of Texas right now where Planned Parenthood in the state of Texas are in a fight regarding medical procedures that can be performed during the coronavirus COVID-19 shutdowns.

We’re going to talk to him a little bit about that. We’re going to talk to him a little bit about the zoo and what’s going on there. One thing he wishes I would talk to him about is Duke, he’s a blue devil, but I refuse to talk about Duke, for a variety of reasons. Mostly, I could not even tell you what state they were in if I was forced to on jeopardy because I choose to not know that kind of information because Duke has no bearing on me.

Another fun fact, Brian Steward has a vanity license plate. Everybody should know about it. I think it’s San Antonio, blue devil or something like that. I mean, I’m not going to give it any credit. We’ll get to you, Brian. He’s itching to talk. Brian, we’re going to start like we started with everybody. A few questions to start top 10 questions to give some color to who you are. Do you have any pets?

Brian Steward: I have two dogs currently.

Justin: Are those your mother’s dogs?

Brian: No, my mother has two puppies. She’s got two chocolate labs, but we have two dogs. My wife’s child and I have two dogs.

Justin: Do you also have two puppies at your house right now?

Brian: I do.

Justin: You’ve got two dogs and you are– I don’t know waystation for two black labs right now.

Brian: Chocolate labs, I feel like I’m a foster with benefits. I think that’s how I would characterize it.

Justin: Your daughter Grace clearly thinks there’s benefits involved. I saw the pictures.

Brian: My daughter, Grace, knows that those are her dogs. That’s why she was able to name them. Colby, that’s right. Not Colby, Colby Bryant, Steward, and Hunter Bush Steward. Good looking dog.

Justin: Is your mom going to stick to those names?

Brian: I think the dogs may have alternative names and that’s okay. Like [unintelligible 00:03:06].

Justin: Well, I hope your daughter still calls them these random names years down the road as she sees them.

Brian: She will. She really doesn’t care what other people think.

Justin: All right. What is your– I hate when people ask me I’ve got friends that’ll call and say you eat out a lot, which I don’t know if it’s a compliment or not, but they’ll say, what’s your favorite restaurant in town? That’s a terrible question, but what is your favorite restaurant right now? If you were going to go eat this week, what’s the spot that you’re into right now?

Brian: Sure. I mean, part of that is obviously we’re in different times, we’re all trying to do our best to help and aid these restaurants that they’re facing some dramatic and horrible times. I love going to Beto’s just because I love the people, I also like going to– I’m going to stop there.

Justin: The empanadas, isn’t that what sort of thing.

Brian: It’s a whole package.

Justin: I’m pretty sure I’ve never eaten there.

Brian: That is on you.

Justin: I mean, I’ve been there late at night and then like the adult kickball teams get off and they’re partying their but which is an actual thing, but I’ve never eaten food there.

Brian: Again, I don’t want to delve too deeply into your personal life, but I’m not around many adult kickball players. I’m simply out looking for a good meal.

Justin: If you go to Beto’s, you are.

Brian: [unintelligible 00:04:29] we’re probably gone by the time your derelicts roll in.

Justin: Do you also eat at Taco Garage a lot because it’s in that corridor.

Brian: No.

Justin: You remember [unintelligible 00:04:38] you was still open?

Brian: Absolutely.

Justin: Beto’s I mean, I really would. You could have given me 50 choices and I would have never thought Beto’s would be your go-to spot but [unintelligible 00:04:49]. Next question, what is your hidden gem in San Antonio? I tell people, hey, San Antonio, you’re coming to visit. These are great spots, but if you want a PhD in San Antonio tourism, there’s a few things and probably PhD is a little over the top to say like the Japanese tea gardens, but there’s a few of these great little hidden gems that I didn’t know for probably at least a year or two living here that when I went to, I thought, how on earth did I not know. What’s your favorite hidden gem?

Brian: My favorite hidden gem is connected to my childhood and it’s the old white family home which has become a part of st Antonio city-system of parks and it’s at the bottom near Salado Creek and it started out as a home where Jack White and his father, who is the mayor of San Antonio in the 50s, they had carved out about 40 to 50 acres right off Salado Creek, right North of I35.

It’s a beautiful location. When we were kids, third, fourth, fifth grade the whites live there, Jack, Karen, and their children, Jack and Scott lived there. It was like being in the country, in the middle of San Antonio and at someplace I still try to go as often as possible because it reminds me of those times and it’s still a beautiful, beautiful location.

Justin: What is it now?

Brian: It has become a part of the Salado Creek, Tobin run area.

Justin: It goes all the way up to what is that little–?

Brian: It goes up to McAllister Park.

Justin: And Los Barrios.

Brian: It goes behind Los barrios. I’m not sure if the actual home is open. I haven’t been in the home, but the original home that I remember from the late 70s is there and it looks the same way and it reminds me of some really good times.

Justin: You should tell Jack White of the white stripes about this. He’s into that kind of kitschy stuff he might.

Brian: Jack White did not know who is my old friend is older than that Jack White and he probably doesn’t play guitar as well, but you’re right.

Justin: My favorite Jack White story is they had a neighborhood barbecue and the neighbors said there was some random guy that lived behind a gated fence that they had never seen and at the barbecue, this dude walking around he’s pale with long hair and then they all realize, “Oh, that’s the new guy. Oh my God, that’s Jack White.” It just showed up to a neighborhood barbecue with nobody else. I was like, that story.

Brian: I like it.

Justin: Outside involvement, we’ve covered Planned Parenthood, we’ve covered the zoo. We’ve covered the library. Any other things in San Antonio that you’re involved with [unintelligible 00:07:37]?

Brian: In San Antonio?

Justin: Or the state.

Brian: Sure. Or the nation. Here’s what I do. Probably for the last six years, I’ve been the chair of the Duke alumni interviewers, which means that at least in San Antonio and sometimes South, sometimes all the way to the Laredo, we try to coordinate interviews and help students get into that prestigious university in North Carolina. Really sorry, you didn’t understand the Duke was in North Carolina.

Justin: Did you say prestigious. Did you learn that [crosstalk]

Brian: No. I learned it before that because we’re going to talk about that too. Obviously, I’m involved in Duke admissions and on April the first, Duke admitted, I think it was seven students, seven local students and I hope they all matriculate there so that I can see them this summer at my party, which is the Duke going away party.

Before that, I’m also involved in the executive committee of the alumni council of Deerfield Academy in Western Massachusetts. I was fortunate enough to attend that prestigious prep school. I’m still very involved in that. I have been on the boar of San Antonio Academy where I attended and I was the alumni council president of San Antonio Academy. I’m committed to education all of its forms, although it appears it all these private schools but–

Justin: It’s a name dropping, it sounds like. Is that education?

Brian: More importantly, my parents were educators. My dad was a principal at the Negro school in Stanton and my mother was the sixth-grade teacher at that school. It’s a great story. If you actually want to Google it, you can Google Christine Smith Steward who gave a deposition on July the 17th 1965 because the school was shut down because they didn’t have the assets to continue these separate but equal schools systems and standard, and they didn’t offer my parents a job.

As part of that litigation, my mother had to give a deposition on July the 17th. She then jumped in her car and drove to San Antonio, which is where my parents had decided to leave and the next day at 5:55 or 5:56, depending upon who you ask, I was born.

Justin: I didn’t know that about you.

Brian: It’s a good story. You need to ask Christine. She’s got ton of–

Justin: I would love to. Would she come on the podcast?

Brian: No.

Justin: Okay, I also still want to point out, my parents were both educators as well, but you don’t hear me dropping the names of the fancy schools I went to like Texas A&M or Baylor or Burkburnett High School.

Brian: I think you just did.

Justin: Okay, wow. Any odd hobbies that you have? I know you run half marathons, which means you’re half crazy, but what else?

Brian: I think that the best sport that I play to the extent I’m allowed to play it by my wife and child is Ultimate Frisbee. I still love Ultimate. It’s a thing that I will wake up even at my advanced stage and wonder how good I could have been if someone had simply turned beyond Ultimate earlier. Last spring I went to see one of my best friends in college. Her son plays for the UNC ultimate team, which is probably ranked number one in the nation. We spent two days watching them play. I honestly thought that I could play again. I was wrong.

Justin: Are they only ranked number one because there’s literally no other school in America that plays Ultimate Frisbee?

Brian: You are so sheltered from the things that matter most to many of us.

Justin: Other than sports, do you have any hobbies other than sports? Clearly, you’re athletic, you play Ultimate Frisbee and run half marathons. What about things that other people can relate to?

Brian: I have a five-year-old. Her sports are my sports. We had piano class the other day. We had hip-hop class the other day. I do things and move in certain ways that I’m not designed to move in at this point, but I do it because I love her.

Justin: Next question, do you own Alf on DVD?

Brian: I own every episode and every season of Alf and I’m working through Alf with my daughter who doesn’t understand why her dad is laughing.

Justin: Is this because you hate cats?

Brian: It has nothing to do with Lucky the Cat or Melmac and how they treated cats. I think cats are a symbol, but if I delve too deeply into this, I don’t think you’ll understand.

Justin: So did Egyptians.

Brian: Well, that’s good because Melmac is a country that– I’m sorry, a planet. It probably proceeded this planet if you’re keeping track at home.

Justin: I’m not. Worst trend you followed when you were younger.

Brian: Worst trend I follow when I was younger, I think when I was in the sixth grade, during the summer I had my hair braided. I know that there are photographs of this somewhere, but I haven’t seen any, but I remember even at the time thinking this is bad. I also had a perm once. I think that was closer to seventh grade, but again, there aren’t any photos.

Justin: What kind of braids?

Brian: Not Iverson [unintelligible 00:13:02] more Kawhi, like a second-year straight and not even. They were kind of a mess, but I loved them.

Justin: That’s a good way to put it because Kawhi never looked as put together as Iverson did.

Brian: He didn’t.

Justin: Yes, he didn’t. I can say now– He was better though. I think you can say it and I was going to say, and I can’t even say it was better, but I think you can say that. I’m going to say that, he was a better player.

Brian: He was a better player.

Justin: Kawhi is a better player than Iverson was.

Brian: Well, that is your recency bias. If you could remember back to 2001 when this 5/9 personal is playing 41 minutes a night and averaging 26 to 27 points, he was awesome.

Justin: I like how you’re looking at paper as though you brought your statistics to Iversion.

Brian: No, that lives within me. That’s what all people do.

Justin: He was awesome, but Kawhi might be a transcendent player. He shut down the brain.

Brian: What does he transcend?

Justin: In a day and age in which there’s really nobody that changes the game, Kawhi might be one of those players that does. He has gotten better year to year in a way that almost nobody gets better in the NBA because they already start at such a high level. LeBron started at such a high level and got incrementally better. Kawhi continues to get better if they’ll play him, if he’ll quit sitting out. I think is the best way to put this.

Brian: Well, the thing is, as a competitor, you would expect him to play and want to play like Allen Iverson. Kawhi is never going to average 41 minutes for a season.

Justin: Okay, we’re getting off track.

Brian: For a season.

Justin: When did you move– How long have you lived in San Antonio?

Brian: I was born and raised in San Antonio. I was born at the Nix Hospital. I know my doctor.

Justin: Which is now going to be an apartment or something.

Brian: Right, at best. It should be torn down.

Justin: Really, it’s still a nice building.

Brian: Not a thing.

Justin: Okay, a favor Fiesta event.

Brian: It’s got to be King William. King William is the event where my wife and child can enjoy themselves. We can go from house to house and laugh at people and feel a part of that community. It’s a fun community down there. I don’t live down there, but if I had the opportunity I would.

Justin: Do you know the Hill Law Firm was the first aid tent sponsor last year and this upcoming year?

Brian: Since I didn’t spend any time in the first aid team, I didn’t know that.

Justin: If you did at least, you know it’s got a good sponsor.

Brian: That’s good. I hope you got some mass down there.

Justin: Last question, what is the single biggest change you’ve seen in San Antonio in the last 50 years? Assuming you’re 50, I don’t know with you.

Brian: I’m 54, but thanks for that. I think the single biggest change was the change from the government where the good Government League ran this town to the current structure.

Justin: How would you describe the good Government League?

Brian: The good Government League looks like it sounds. It was government of this town by a really small section and portion of this town and it was restricted. I think now with the ascendance of various groups, the government is much more representative of the people as opposed to certain zip codes.

Justin: I had a recent experience with a man who was probably about 60 and he explained to me how we don’t understand how much good was done by and he named like six families. He never said good governments, but I assume that too is what you’re talking about.

Brian: I can probably tick those families off, but without ticking those families off I won’t, but yes, that’s how it was. If you look around and you look at highways and malls and things, you can sort of figure out who they were, but it was a different time. There were some obvious patronism and some forward-thinking in some of those groups, but there was a point where the rest of us needed to weigh in.

Justin: I think this is probably a story told throughout America, really.

Brian: Sure.

Justin: Yes, I was going to spend more time talking to you about a few things, but I want to get to the meat of what we were going to talk about today. Clearly, you accomplished. Did you all hear, he went to Deerfield. Clearly, you’ve got a background, but one thing you do do as a volunteer basis is you’re on the board of directors for Planned Parenthood. Such a political hot potato, such a weird lightning bolt for everybody politically. Nobody’s in between on that it seems like anymore, even though you get a strange crossover of wealthy conservatives’ wives and/or women who do cross that spectrum.

It’s just this strange thing. When I was in college, we would help girls get from their cars to the front door because there were people screaming and yelling and I was fresh off the turnip truck. I just thought that’s mean. I really didn’t have any grand political feeling about it other than a buddy of mine did it and I thought, “This is crazy. What are you yelling at these poor girls for?”

What’s going on in Texas right now cutting everything short is Governor Abbott said, “Hey, we are going to cut non-essential medical services.” Attorney general Paxton says, “Okay, everybody, that also specifically means and I am declaring that abortion is a nonessential service.” Planned Parenthood of Texas sued the state of Texas and it landed on the desk of Lee Yeakel who was a George W. Bush appointee, a federal judge in Austin, Texas. Talk to me about generally what are the arguments from both sides on that?

Brian: Sure, the timeline you provided is amazing because this all started back on March the 22nd 2020. I’m going to go back and go through it a little bit because I think it’s important for everyone who’s listening to this to try to frame this because it’s happening even as we speak. March 22nd, 2020, Governor Abbott issues, executive order GA-09. Jokingly, we say get abortion, but that’s not actually what it meant, but the executive order related to hospital capacity during this disaster, the COVID-19 disaster.

It was in effect from March 22nd, 2020 to April 21st, 2020. Remember that, because we’ve got a month window where this is in place. Essentially what it says is, “Hey, obviously there is a crisis, and during this crisis, we don’t want to take resources away from our hospitals and our healthcare providers.” Generally, I think we will all agree with that. March 23rd, things changed. March 23rd, Ken Pax and who was the attorney general issued a press release and here’s the title of the press release and you can see where it’s going as soon as the title–

Justin: Let me stop you real quick because Abbott’s order said non-essential services are suspended, but he made no attempt to say what was essential and what was not, fair?

Brian: He didn’t identify it. He didn’t make it clear it was the general order from the governor, which would obviously allow others to interpret it and limit it if they chose.

Justin: Fast forward a full 24 hours, Paxton steps in the attorney general and he says what?

Brian: Sure, Ken Pax, attorney general, issued a press release, a press release, and the press release is based upon the executive order and the press release, which is titled Healthcare professionals and facilities, including abortion providers, must Immediately stop all medically unnecessary surgeries and procedures to preserve resources to fight COVID-19 pandemic.

Obviously, who wanted to make sure that abortion providers in the state of Texas knew that this was going to touch them. By touch them, I mean, he threatened with jail time, he invoked certain procedures within the Texas medical board which essentially said you could get $1,000 fine, you could lose your license and your ability to practice medicine.

Justin: Ken Paxton is a very vowed, well-known opponent of abortion services, abortion service providers or choice efforts, fair?

Brian: He is, without quoting him, an opponent of reproductive rights. I will say that.

Justin: Fair enough, March 23rd, his pointed order comes out, Planned Parenthood who generally across America is not only a facility that provides almost exclusively non-abortion related services for women and low-income people that need medical services, but they also provide the voice in the discussion politically and legally regarding abortion and choice services, fair?

Brian: Absolutely.

Justin: They sued the state of Texas for essentially shutting down and or threatening to shut down and/or threatening to fine, fair?

Brian: Well, it goes beyond threatening because, for a period of time, abortion in Texas was banned. Today, it is currently banned.

Justin: Let’s go through the timeline. When did Planned Parenthood sue the state of Texas regarding this March 23rd order?

Brian: There’s one step in between that’s important. In response to the March 23rd, 2020 press release to Texas medical board, enacted the emergency amendment to title 22, which essentially said if you violate the press release/executive order, you are now a criminal, which means I can take your ticket, which means I can take your license. That was the teeth that Paxton needed.

Justin: Why would they get involved in this?

Brian: Because they had to. The way this works is you have the attorney general making moves and making decisions, but to enforce it, you have to have the actual bodies, the medical board, the nursing board who holds the licenses for these individuals. You have to get them involved because they control what can actually be done. March 25th, so we’re two days after the press release. March 25th–

Justin: Well, let me go back.

Brian: Sure.

Justin: Is it a political thing that gets a Texas medical board involved or did they just– Take abortion out of it, did they generally get on board with whatever direction they get from the government?

Brian: I think the best way of putting in this is if you criminalize certain conduct, the Texas medical board is going to respond and say, if this is criminal conduct, you do not have or cannot have a license to practice medicine.

Justin: Same way with what we do as lawyers if the state says, “Hey, if you represent Joe Blow, it’s a felony.” Then our state bar’s going to come out and say, “Hey, if you represent Joe Blow, you lose your license because it’s a felony.” Similar?

Brian: Right.

Justin: Texas medical board wasn’t necessarily taken some large political position outside of what they just generally do in relation to what’s been criminalized.

Brian: Sure, they’re going to follow the leader. The only difference is you don’t have legislation that criminalizes this. You have an executive order which says one thing, you have a press release which interprets it a certain way and in that press release you have comments made about the criminalization of this behavior. You don’t have anyone that’s actually said, “Okay, this is valid. This meets constitutional scrutiny.” You simply have the attorney general saying, “If you do this, it’s criminal.”

Justin: But under the emergency powers within the state, I think, I’m not sure, but the governor and mayors and some of the executives within the state have the ability to bypass some of the steps to criminalize behaviors in a way that they would not if there wasn’t an emergency declaration.

Brian: They do, but there’s still constitutional, US constitutional scrutiny on these orders.

Justin: Sure, we will get into that, but they have the ability to jump, to leapfrog a process, generally, so we don’t have alluding and gouging and other things that would lead to hysteria. They have pretty broad powers when there’s an emergency declaration.

Brian: Especially if they limit those powers to a certain amount of time. Part of the craziness of this order is the order was only for 30 days. I think that having heard your conversation with Roe [unintelligible 00:26:16] and others, we’re not going to be done by April 21st at 11:59. What’s going to happen is we’re going to get an amendment to this executive order or something else that’s going to extend it. It’s fascinating because as these arguments are being made and evaluated, part of the argument is this is just a limit. It’s a limited incursion upon your rights when the truth is it’s going to be extended.

Justin: A limited incursion on your constitutional rights because if you agree or disagree with the abortion debate, Roe versus Wade and Progeny have said that is a limited constitutional right to have an abortion. I think it’s important because I was reading some articles knowing you were coming on today discussing this and even I because the discussion in the media is so out there forgets that as the law sits right now, there’s a constitutional right to an abortion in a non-viable situation.

You can argue all those things as you want, but that’s just generally as the law sets. Also found it interesting that Paxton took a hard line on some cities that wanted to say that gun stores or non– Right outside my office, Nagle’s Gun Store has car service right now and they have a line out the door. Those people should not be there.

Guns aside, but they are in small groups of people that we should be avoiding and Paxton took a line and said county cities, those are essential services to the extent you can’t close them because if there’s a constitutional right, but in the abortion context, a different standpoint. Let’s get back on track, 23rd Paxton– Wait, 22nd Abbott weighs in, 23rd Paxton weighs in, 24th, medical board weighs in?

Brian: Medical board weighs in 25th, the lawsuits file and it’s some healthcare providers, specifically Robin Wallace as well as different versions of Planned Parenthood across the state of Texas. What they saw was a temporary restraining order on this executive order just to stop it. There was also a request for a preliminary injunction. They filed it in the Western District.

As you well know, you’re not necessarily sure who you’re going to get. It’s interesting to me that the judge that ended up taking up, this is Judge Yeakel who has previously dealt with the Heller state case, which was about three years ago. Judge Yeakel, as you said earlier, is an appointee of Republican, but he’s savvy and understands this area of the law as well as anyone because it’s been briefed and it’s been in his court and he’s heard the testimony. He knows what’s going on.

They present this to Judge Yeakel and Judge Yeakel not trying to read too much into him, although I’ve had some incredible experience with him, is wanting to gather information because with a temporary restraining order, what they’re essentially trying to do is trying to prevent this executive order from going into effect. They’re trying to stop it, which means that abortion would have been legal as of March 25th, 2020.

Justin: For our non-legal listeners, it just means the judge is going to say, “Hey, I’m going to say no on this until we have seven days or whatever amount of time to get more evidence, consider more of the law, consider more of the testimony.” It’s just the judge saying, “Let’s put a pause on this until I have a chance to review everything.” Is that fair?

Brian: Right, that was the idea. It was sort of a timeout, but he knew the stakes. He also said, why don’t we do this? Why don’t we have a teleconference? He ordered the conference on March 26, so we’re less than 24 hours later and he allowed the plaintiffs as well as the representatives of the defendants to participate. He also said to the state, “Okay, I’m going to give you a chance to file a written response to this motion.”

Well, he heard the arguments. He gave them an opportunity to brief this and he determined on March the 30th 2020 under certain rules of federal procedure that the plaintiff has shown a likelihood of success on the merits. What that means is essentially the executive order which was issued by the governor violates the plaintiff’s 14th amendment rights, which are derived from the bill of rights, the same bill of rights which you’ve referenced in respect to Nagle’s Gun Store and the essential nature of buying weapons and bullets in the fine state of Texas.

Justin: 14th essentially said, “Hey States, you’ll have to follow the federal–” I mean, there was a debate at some point, but the 14 said, “No, we’re incorporating all the states have to follow them too.”

Brian: Right, and Within the 14th, there was this concept of due process, which meant that in order for you to infringe upon the rights, you had to show certain things. One of the things that Judge Yeakel obviously looked at is the idea of pre-fetal viability abortions, which are abortions which take place before 10 weeks.

What he looked at in his order was you are in essence banning those abortions. I know that you’re making this argument about resources, which is a spurious ineffectual argument because medication abortions don’t use N95 masks, they don’t use the resources of healthcare facilities because they’re done in clinics outside of that universe.

The original argument that Abbott made about [unintelligible 00:32:13] divert resources from these hospitals and from the provision of care was just not applicable, but what Yeakel looked at is simply following precedent. The precedent was that the Supreme Court of the United States did not permit a ban on pre-fetal viability cases. Then he threw in a funny line. If you’ve been in front of him, you would consider it funny.

I mean, most people don’t. He wrote in his order, “This court will not speculate on whether the Supreme Court included a silent except any national emergency,” which I thought was funny. It basically shows, okay, I know what you’re doing. I know you’re taking a legitimate argument about resources and you’re trying to expand this to include something that you don’t like. He wouldn’t follow that.

He grants a TRO as of March 25th and essentially says, “Hey, state of Texas. If you’re trying to enforce this, you can’t do it.” He then said, “If you want to come back here and have further arguments, I’ll certainly do it, but at least until April the 13th, 2020. This is the ruling and abortions in the state of Texas, all abortions, were still viable and legal.” Well, which is also just such a strange area in that a knee surgery is not a protected constitutional right. It’s not.

Justin: It’s just a strange thing. I mean, I learned in law school. I learned [unintelligible 00:34:02]. I read occasionally, but you just forget when the discussion has had in the news it is murder or a medical procedure. It’s never framed in terms of our courts have decided it’s a protected constitutional right. I feel like that from all of our constitutionalist friends that disagree with it, that’s the place you have to start within that discussion.

Maybe it’s not a good place to start, but I feel like to have an honest discussion, you’ve got to start in that the law has decided that’s protected. That’s what makes this such a strange issue because, yes, the attorney general is saying it’s a non-essential, but the courts are saying, “We don’t care because we’ve already decided it’s a protected constitutional right.”

Did what Yeakel did and the state of Texas appealed it to the fifth circuit court of appeals, which for listeners who maybe don’t know, that’s the federal court of appeals that covers Texas, Louisiana, Mississippi. It is every federal court case goes to the trial level district court and then it can go up to the fifth circuit. Fifth circuit sits in Louisiana normally and they are the stop between trial court and the US Supreme Court everybody knows about. It goes to the fifth circuit, which is historically a very conservative-leaning court. When did they hear it? What were the arguments? What were the decisions?

Brian: March 31st, 2020. So two days ago, the fifth circuit, a panel of three, hears the arguments and essentially decides, well, we’ve heard what the arguments are from the state and from these plaintiffs and we are going to decide to go back to the executive order and allow that to continue without any limitation, but we do want additional briefing from both sides.

Even as we speak, this is April the 2nd, they were requesting hearings and briefing as of yesterday morning at 8:00 AM. The state had a reply of 8:00 PM yesterday. Then there’s responses. There are responses due tonight at 8:00 PM. In essence, the state argued that this is a legitimate concern. We are able to identify how the resources of this state would be taken away from legitimate healthcare provision to patients who are in dire straights life-threatening conditions.

The resources necessary to accommodate and sustain those patients are directly connected to what these abortion clinics are doing. As such, we need to prevent them from performing this procedure or performing these procedures and elective abortion is not an absolute right, which has been guaranteed by the constitution especially in light of the current public health emergency.

Justin: Did they have any medical testimony or medical support behind their argument that it would limit or reduce or strain resources?

Brian: No.

Justin: Not even like a [unintelligible 00:37:37].

Brian: There is information provided to them. Some of it was cursory, but there was nothing provided to them that connected the direct impact of abortion clinics in the state of Texas during these 30 days and how it would impact the provision of healthcare to victims of COVID-19. It just wasn’t done because it doesn’t exist. There’s some self-serving comments that were made and some arguments that were made, but it was really– It was as expected.

It was the fifth circuit panel of three is looking at this. We fully expect that now that the fifth circuits weighed in. There will be an appeal by the plaintiffs in the players that filled the TRO with Judge Yeakel. They will appeal to an on bond consideration that will ultimately be upheld. Meaning the panel decision will be upheld and then we will have an appeal to the United States Supreme Court, which is a situation that we’ve found ourselves in with the [unintelligible 00:38:53] case.

In essence, Chief Justice, John Roberts, is going to have the opportunity to hear this and to decide whether we’re going to, as a full-blown US Supreme Court, hear this. Now, there are other cases floating around and none of this happens in a vacuum and none of this can be attributed to any one person, but currently, there were challenges as of last Monday from Alabama, Iowa, and Oklahoma following this same rationale. Meaning, there are limited resources and abortion care is nonessential and it will limit these resources. As such, we need to stop it. We need to ban abortion.

Justin: It seems to match up with the states that don’t have stay at home orders.

Brian: Right. Among other things.

Justin: We’re not political.

Brian: We’re not, but–

Justin: You can be.

Brian: Tiger King was on one of those. I think he was in Oklahoma, but anyway–

Justin: Hey, the guy with no legs is from my home town and lives there currently, so I feel like I have a tiger King connection.

Brian: I bet you may have one in there.

Justin: Hey and if you’re listening come on to the show. We need to hear more–

Brian: It’s only seven episodes.

Justin: Yes.

Brian: It’s intoxicating.

Justin: It’s fantastic. It’s a strange procedure and that Yankel says, “Let’s put it on hold. I need more.” It goes up to the court of appeals and they said, “No put it back. We need more,” and we’re now in this position of everybody’s briefing and getting the more that they need so that they can make a final determination.

Brian: We’re going to get a determination we think either tomorrow or early next week, but the determination is going to be temporary. Meaning we know that there’s going to be an appeal but in the short term what it means is that next week Monday, Tuesday, Wednesday, whatever abortions will be banned in the state of Texas because they’re not considered essential medical care.

Justin: Which I think was it may be the Texas tribune or one of those had an article about this and they gave some real-life examples because again the media it’s– I’m not downplaying the media but they distill these arguments to such non-human examples, but this was an example of a woman who had some prolapse and her life was not in danger. She was probably not carrying a viable fetus at that point, but it wasn’t totally sure but in 99% of the times the doctor would say this, “We need to terminate your pregnancy. It’s not going to work out at the end of the day,” and she no longer can do anything that she needs done for her body in that situation without being a criminal or the doctor being a criminal.

They lined out some real-life examples of how this is affecting people today, and it’s not what is presented in the media as or the political propaganda either. These are real-life people that are being affected by this, that need it, that anybody, wherever they stand on this issue, is probably going to look at them and go, “Yes, of course, that’s not the elective procedure that we’re against that’s a medical need,” but because it also includes that they’re caught up in this political fight. Is that fair to say?

Brian: Yes, I think they’re going to be hundreds of examples of women who within this 30 days go from medical or medicine abortions which are typically handled in clinics which have an incredibly low rate of problems of any sort to later-term abortions where there are numerous problems available and there are numerous situations where they may, in fact, need the health care resources that we’re trying to protect. There’s also really a common-sense aspect of this and the common sense aspect is this if you are banning abortion for these women, they are ultimately going to have a child in a hospital setting which means they’re going to have to go through prenatal care. They’re going to have to ultimately have that child in a setting that incorporates a doctor and a nurse and unless it’s a midwife it’s going to happen in a facility.

Those are the types of beds that I thought the executive order was trying to protect but realistically this example and others reveal that at least the press release and the interpretations in the press release show that this really isn’t about hospital resources. It’s not about the masks or respirators, because these laws or this executive order and its interpretation in effect necessarily include the use of that equipment which you’re trying to keep away from certain populations. With medication abortions these patients aren’t going to the hospital, they’re going to the clinic.

Justin: When you say medication abortions you mean basically it’s not plan B. It’s a pill that is inserted or whatever, however, it’s taken and people then go home. They’re administered in a clinic setting but they typically go home and it’s a non-hospital setting and they don’t go through surgery and they don’t have anesthesia and those types of things?

Brian: You take a medication typically method piston. You go home you coordinate with the clinic you tell the clinic your symptoms you come back you follow up and in most of those patients, it works.

Justin: There’s no question those are administered at a point in the pregnancy when really it seems without argument that it’s a non-viable fetus, because there’s a lot of debate on what was viable and reverse as why it was as opposed to today, but those medication abortions are not even available in that gray area of what is viability, right?

Brian: Right. I think that’s important for everyone to consider because if you look at Yankel’s order and you look at what he’s talking about, he focuses on this pre-fetal viability, which is 10 weeks but abortions in Texas are permitted far beyond that. I think it’s up to 20, 21 weeks at this point, but it’s something where as you just pointed out. There’s no question that it still passes United States supreme court scrutiny, and there’s no question from a medical standpoint that these fetuses are not viable at that point.

Justin: All right. This is heavy stuff.

Brian: It is.

Justin: We are in the heavy time right now. I went to law school with one of the leading figures in the pro-life/anti-abortion movement. Bradley if you’re listening, you’re welcome to come on and discuss with us. We’d love to have you on. I don’t want this to be political but this is going on behind the scenes and I’m sure some people would say this is political opportunism and other people might say this is exactly where we should be drawing these lines in this type of environment. Whatever it is, it is in the courts are going to flush out but thank you for talking about this. I want to trend over to something maybe a little more cute and fuzzy and light-hearted depending on what part of the zoo you’re in.

You’re a board member on the zoo. I love our zoo. Lindsay and I are I don’t know what level one of these things we’re not season pass members but we are not the exalted as though you are, but we have tickets to everything. We go just take a walk there sometimes lots of exciting things happening at the zoo. We have a new leader. He’s not that new but he’s new-ish from and transformational in the zoo world. Talk to me about some of the things that are happening at the zoo.

Brian: Sure. These were events obviously which were taking place or have been planned for the last few years and the new leadership is a guy named Tim Moore. Tim is exceptional because Tim looks at this world from many different viewpoints but the first view point he looks at is education is really important. Tim is one of the driving forces behind the Will Smith Zoo School, which is right up the hill from the zoo, which I think is just an exceptional opportunity.

Justin: Not the Wild Wild West, Will Smith, Fresh Prince?

Brian: No.

Justin: Men In Black?

Brian: It’s not the guy who saved the world every summer for about three or four before he married Jada.

Justin: Okay, so the Will Smith School it’s a zoo preschool basically, right?

Brian: Yes, and it’s a great school in that you have these students and they spend a lot of time outside and you’re about to experience this. I’ve experienced it. I have a child who loves to be outside, but that’s contrary to how most children are educated so this concept is great. My wife and I have friends who send their children there and they love it. The school is the old Sunset Cottage dealer Whites Venture up the hill and they’ve done a fantastic job with it.

It’s one of those things where I think Tim and other board members and executive committee looked at that opportunity and ran with it and with some of the partners we’ve made it work, but I think there’s also the idea of– San Antonio despite its flaws is a city that incorporates almost 2 million people at this point and as such, you should have a world-class zoo. I think one of Tim’s focuses and one of his goals is to transform this zoo into a world-class zoo, and that means that he has zoologists and scientists within the system who were going all over the world, who were to South America who are going to Europe or meeting with other zoologists who are trying to gather information as to how to do that. From a concrete and mortar standpoint, it means that we’re trying to change certain exhibits, give our visitors a sense of what a natural habitat looks like. Some of you have been to the zoos in San Diego or you’ve been to other zoos. I think Berlin for instance, and you’ve seen habitat where you’re actually in the habitat. I think that’s one of the goals of our zoo. Even in the limited space that we have, but we want children to be able, specifically, to go into these venues and have a sense of what it’s like for these animals to be out in the wild. I think there’s some fantastic ideas. There’s the Jaguar Reach, there’s some of the stuff that’s going on with the giraffes, and other of the larger mammals, other African mammals, but it’s one of those things where, if you see it, and I can specifically point to San Diego, in parts of the San Diego Zoo system.

If you see those animals roaming in something that is akin to their natural habitat, it gives you a much different view of what you believe those animals are like. There’s nothing like seeing a big cat roaming a prairie. We want to provide instances where our audience gets to see that, because I think that’s important especially as the natural habitat for many of these animals is disappearing.

Justin: Because of you, I had the opportunity to apply for the board, didn’t make the cut, but who’s keeping count? Whatever, it happens sometimes, but I got to meet with some of the other guys on the board and they called it the San Antonio Zoological Society, and I thought, “That’s got some pretty bad connotations.” They went on to explain it’s exactly what it sounds like. These societies were formed by wealthy big game hunters back in the day and a lot of nonprofits, they are trying to move away from the historical connotations or associations, so now they moved to conservation and education.

One of my friends was in town, separate and apart from our discussions and my discussions with the zoo board guys, and we went and did a feed the turtles and feed the hippos. They told me that part of what they do is they have geneticists in the zoos who will say, “Our female hippo and the male hippo from Oklahoma City, or Tampa, or wherever, they’re perfect matches for this hybrid vigor, whatever you call it. They’ve got really good genetics, they’ll make a good match.” They are sharing animals to make sure that they can basically continue the existence of these species. How much of the focus at the San Antonio Zoo is sort of conservation now?

Brian: Well, it has to be. We all have a sense of the zoo that’s based upon our experiences as children, but the reality of the zoo and the zoo business is conservation and the sharing of information, like you’ve just identified. There are species of animals that, unfortunately, are being maintained because of zoos. That is how it’s going to happen. We have, I’ll say, a zoologist, because I love that term. We have zoologists that travel the world and talk to other zoos and share information and share things that those zoos need and we all need to continue certain species and to make this process as effective as possible in light of our circumstance.

Our circumstance is their natural habitat is disappearing, in many ways, is disappearing and we can’t change that, but we can do whatever we can as stewards of this country, stewards of this planet, to try and maintain this for our children, so that they’ll have a sense of these things. If that means that you fly someone to South America and that person spends six, eight weeks in the Orinoco trying to figure out certain things so that he can share that information with zoologists in zoos across the nation, then you do it. That’s what’s being done, but it’s also being done within the limitations of a nonprofit.

The zoo is driven by us. It’s driven by the citizens of San Antonio. There’s remarkably little support from certain sites, from certain centers, which means that the zoo or the zoological foundation is driven by people. Which means that we need people to walk through the doors and to buy the merchandise. What does that mean right now? The zoos closed. There’s a crisis. There’s an absolute crisis where we’re looking not only at our human family, which is the people that worked for us, but we’re also looking at how do we continue to maintain these services? How do we set up a new and better hospital system for our zoo? How do we continue the growth with the jaguars. How do we-

Justin: Finish the Africa Live Exhibit. All those other things that were going on.

Brian: Exactly. We’re sitting here thinking, “Okay, we’ve got these fantastic plans. Most of the zoo plans, of course, drop on or about the beginning of spring break, which happens to be when everything starts shutting down. You’ve got the opening of Starbucks, which was supposed to be part one, I guess, part two. Part one was the opening of the kiddie park. The soft opening.

Justin: You have the kiddie parks there now?

Brian: Yes.

Justin: The Broadway kitty park has been taken down and moved on to the zoo.

Brian: Better, and all the equipment works. Just saying, and there aren’t any carnies.

Justin: Less rusty?

Brian: Again, yes, but you might want to get that tetanus shot anyway. Anyway, you had these steps being made, and then this drops. We’re in a situation right now where we are reaching out to everyone because you can’t go there. If you have the means to support the zoo, and I know it’s probably not on your highest list of priorities, but the reality is, we need your support. We’re out there and we’re talking to people and we’re trying to get your support because I think it is a crisis. I won’t call it an existential crisis, but it’s a crisis. It’s worthy of your attention, and it may be worthy of your support.

Justin: A lot of our city’s identities are being strained as a result of all this. The San Antonio Public Theater, the zoo, and to support the zoo, you can join as a yearly member and it’s not that expensive. It’s what? Maybe two visits worth, and all of a sudden, you get a year’s worth. I’ll tell you. Before all this crisis happened and after you introduce me to them, I just went there with a buddy because his daughter wanted to go to the zoo. He booked us all these, we fed the hippos, we fed the rhinos, and we fed the tortoises. It was almost a spiritual moment for me feeding those tortoises. They’re 100 something years old.

You can sit there eye to eye with them and touch them on the head and look at them eye to eye. I’m a kid from the country. I grew up around animals, but there’s something really weirdly heady about petting the animal that you’re not sure if its species will continue outside of these habitats now. Another thing I like to point out is we still all have this belief that zoos are still Tiger King. There was a time when zoos made their money selling animals and they were in the breeding thing and all that kind of stuff. Those are long days gone, but the zoos for a long time had a very bad feel to them, almost a black fish or black fin, whatever it was. Like SeaWorld thing.

After meeting with the board members that you introduced me to and go in as much as I’ve gone since then, it’s a very different feel. It feels like school when you’re there and you do any of the private programs. It is going to be, unfortunately, hopefully not, but unfortunately, going to be one of the only ways that people get to see ecosystems that no longer exist in 50 or 100 years unless we change the way we’re doing things and I hope we do.

Brian: I hope we do too, but I think the importance of the zoo to people my age, I’m in my mid 50s, people your age, you’re approaching 40, and our children, is that it gives all of us a perspective that we wouldn’t ordinarily have. Now, certainly, I have friends who have been on safari and all these other things, but that’s different. I want to have access to these systems, to these exhibits, because I want to think about those things. I think it may manage my expectations and manage my beliefs if I see those things and I take a pause because it does make me think about what’s going on in South America or Sub Saharan Africa.

As complicated as our lives are and focused as our lives are on our issues, many of these things are related. I think we all need to support those things that we can, that allow us to continue to have a much more open perspective on this world. Again, it’ll only help us.

Justin: Join the zoo. I don’t know, you Google San Antonio Zoo. I don’t know it as I sit here, but everybody can afford $50, if you’ve still got your job, you can afford $50 to support something you want to be there when we come out of the other side of this and if you’ve lost your job, God bless you. When you get another job then you can but things like the San Antonio Zoo see things like the San Antonio Public Theater. They are having an existential crisis as well as just financial crisis. Those animals are a lot of money to feed. If you’ve watched Tiger King, they’re somewhere between $3,000 and $10,000 a year per big cat whether you’re a doc Anto guy or a Joe Exotic guy. It just depends which you’re into.

Brian: That’s a lot of roadkill.

Justin: I know. Did you see the thing about the pizza?

Brian: I did.

Justin: Come on. I don’t want that. [laughs] That about does it for this episode. Brian, thank you for being on here. Next time you’re on, we’ll have a full– You know what? I’m going to guess next time you’re on, we’re probably have a whole new fight between the planned Parenthood in the state of Texas and we’ll talk about that but it’s an interesting thing to get some color commentary on the backside of what’s going on, what the arguments are and it’s something that affects us day-to-day in the middle of this.

Brian: Right. Thank you for having me. It was amazing for you to demonstrate your ignorance the way you did about the location of Duke, but I’m never ever underwhelmed by people anymore.

Justin: It’s definitely in North Carolina. I know this, I just don’t want to admit that I know this. It is in North Carolina. Right?

Brian: Yes. [laughs]

Justin: That’s this episode Alamo Hour. Thank you for joining us. Thank you Brian Stewart and all of your Duke Blue Devil, inclinations and Deerfield Love but San Antonio still loves you. Our next episode, we are planning on having somebody else here talking about the city’s response to Covid and Coronavirus and the shutdown and what’s next for the city. My guest wishlist continues. My top three have not changed. Coach Pop Robert Rivard and I’m a huge Rohrschach fan of Jackie Earl Haley’s doing so. I would love to have him on. Thank you for joining us and we’ll talk to you next time.

Brian: Was I number four?

Justin: Thanks for joining us on this episode of the Alamo Hour. You are all what make this city so great. We hope you join us next week. In the meantime, subscribed or a podcast and check us out on Facebook at or our website, until next time Viva San Antonio.

[music] [01:02:36] [END OF AUDIO]
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