Abortion Rights: Personal, Political, and In the Courts

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Matt Katz: It's The Brian Lehrer Show on WNYC. I'm Matt Katz from the WNYC and Gothamist newsroom, filling in for Brian today. Coming up later in the show, we'll hear an argument for radical change through small, incremental steps. My two guests who wrote a book on this spent many years working in criminal justice reforms, so they have experience in how this works in that arena. Plus, the NYPD is hiring robots to join the force. Yes, really robots. It's an expensive proposition, and not everyone is happy about it. Later in the show, we're going to talk to an editor at GrubStreet to tackle how much you should be tipping.

First, did you see that last night, Florida Governor, Ron DeSantis signed a bill banning abortions after six weeks of pregnancy? That law is now contingent on a pending Florida Supreme Court decision, but it's another indication that the American South is becoming off limits for almost all abortions, for almost all reasons. We're going to try to sort out what's going on with abortion rights throughout this country and talk about conflicting rulings on mifepristone, the abortion drug with an appeals court partial block of a Texas judges attempt to outright ban it.

We're going to zoom out to talk about how the Supreme Court's overturning of Roe v. Wade is affecting national politics. For this, we're joined by Jessica Valenti, founder of the substack newsletter, Abortion, Every Day, and a feminist author of multiple books on women and politics. Jessica was last on the show for a book she edited with Jacqueline Friedman called, Believe Me: How Trusting Women Can Change the World. Welcome back to the show, Jessica.

Jessica Valenti: Thank you for having me.

Matt Katz: By way of full disclosure, Jessica is married to WNYC Chief Content Officer, Andrew Golis, and she is also very much the go-to writer and thinker on issues related to all things feminism or its verb form feminist thing, the title blog from the early 2000s, of which I was a fan of back then. I remember [crosstalk]

Jessica Valenti: Oh, wow. Old school. Old school. Okay.

Matt Katz: I feel like we go way back.

Jessica Valenti: Amazing.

Matt Katz: To start off on all of this, let's talk about the ruling from the Fifth Circuit Court of Appeals and try to add a little bit of clarity. A week ago, a Trump-appointed federal judge in Texas rules that the FDA was wrong to approve the use of the abortion drug mifepristone back in 2000, and the judge said it can no longer be sold. The judge also stayed his own decision for a week to allow for an appeal. That appeal happened because the Fifth Circuit upholds part of this decision, but not the whole ban. I know you aren't a lawyer, but are you able to explain what they upheld and what they deemed invalid, and what this all really means on the ground?

Jessica Valenti: Sure. The rule that mifepristone, which is the first of two pills that you take to end the pregnancy, they ruled that mifepristone can stay on the market, but they essentially put so many restrictions on it. They agreed with so many of these really onerous restrictions, but it makes it really hard to say that they are actually allowing it to be accessible. They ruled that you can't just send mifepristone through the mail, that you can't prescribe it over telehealth, which is a huge deal that someone needs to be in-person in a doctor's office and that it can't be given out by healthcare providers who aren't physicians.

Basically, they ruled against all of these really onerous restrictions that the FDA had done away with. It's their way of trying to pretend that they are being moderate on this by allowing mifepristone, but allowing all of these ridiculous restrictions that are not necessary for a drug that has been used safely and effectively for over 20 years.

Matt Katz: Right. Then there's also this other Washington State decision. The Washington state federal judge ruled, I guess, in contradiction of the Texas judge, the FDA could not alter its current policy on mifepristone, so, this is going to end up [crosstalk] right?

Jessica Valenti: Right. This is where it gets confusing.

Matt Katz: Yes, right.

Jessica Valenti: Yes. It gets very confusing. There was a conflicting ruling that has the same standing as the ruling that came out of Texas, that 17 states and DC signed on to saying, actually, the FDA's restrictions are too much, and we want more access to mifepristone. What's happened is that these states in DC who signed on to this lawsuit, are not privy to the restrictions that the Fifth Circuit Court of Appeals implemented, which sounds completely chaotic and ridiculous. They signed on to this lawsuit, and so, now, they actually don't have to put those restrictions on mifepristone.

They can continue prescribing mifepristone as they have been, but this is sort of part of the point. The Republicans strategy here is to sow as much chaos as possible to make things as confusing as possible so that women on the ground have no idea what is legal or not, and so that doctors and pharmacists, no matter what state they're in, are afraid or scared. The legal situation is changing day to day, hour to hour. It causes this complete mess, where people can't get the care that they need.

Matt Katz: Why would it matter at the moment, to a clinician in New York State, for example? You said even in states where it's still allowed, and abortion is legal?

Jessica Valenti: New York State did not sign on to that lawsuit, and that's why we saw the governor stockpiling misoprostol, which is the second drug in the two-drug course, instead of mifepristone. The idea in New York is that they're still going to allow medication abortions, but not using that first drug, just using the second drug, which is not as effective, which is much more uncomfortable, it's a lot more cramping, it's a lot more painful, and so, New York actually is very much affected by that. People need to remember that medication abortion accounts for over half of the abortions.

Most people will prefer to use medication. They can be at home, it's more private. This really, really changes the landscape of abortion access in New York. It also means that because medication abortion has changed in New York, we're going to see more people opting for surgical abortions. New York abortion providers were already overwhelmed and inundated with out-of-state patients, patients from states where abortion is completely illegal. Now, they're going to be inundated with these out-of-state patients.

They're going to have more surgical abortion appointments from in-state, and so, we are going to start to see this backlog of care, where people are going to have a harder time even getting pap smears, or just regular preventative care because it's going to be so much harder to get an appointment. We're going to see this across blue states. I think it's a mistake for folks in blue states to think that this is not going to impact them.

Matt Katz: Listeners, we'd like you to chime in on this whole conversation. How are you navigating this time of uncertainty with regards to abortion and medical care, as Jessica was just explaining? Is it changing your behavior with regards to pregnancy or abortion, but maybe also voting or just paying attention to news and politics? Give us a call at 212-433-WNYC, 212-433-9692, or you can tweet @BrianLehrer. Jessica, is the Supreme Court going to ultimately, or maybe imminently weigh in on the issue with mifepristone?

Jessica Valenti: Yes. The Biden administration has asked them to weigh in as an emergency because all of this is so urgent and imminent. It is unclear to me how that is going to turn out. We saw what happened with Roe v. Wade, obviously, but the ruling out of Texas was so ridiculous on so many counts. Anyone who takes themselves seriously as a judge might have a difficult time allowing this to go on, but who knows? That's what's so difficult about this moment, and that's why I'm doing the newsletter that I'm doing. We're writing about abortion every day, because it really is changing constantly, and it could be hard to keep up.

Matt Katz: I'm fascinated by the way you keep up with this, Jessica. The intensity and unique way you've been covering this issue, you put out a newsletter on abortion rights every day at abortioneveryday.com. Why did you decide to cover abortion like this?

Jessica Valenti: It happened organically because I was already a writer, I had a substack. There was so much happening that I just found I was already writing about it every day, so, I figured, let's formalize this. Really, at the end of the day, I did it because I wanted to get a handle on what was going on. I've been doing this for nearly 20 years, writing about feminism, writing about abortion rights.

If I'm confused, if I'm having a hard time keeping up, I cannot imagine everyday Americans having an easy time understanding what is happening with abortion rights in the political landscape. The hope is to make this a little bit more understandable to try to throw a wrench in that chaos and help people just know what their rights are.

Matt Katz: You also write about people who are caught up in this issue on the edges, not necessarily women seeking abortions, but maybe women with miscarriages or pregnancy complications, because they're caught up in all of this and affected seriously by this, right?

Jessica Valenti: Oh, yes. Anyone who has the ability to get pregnant has been affected by this and will be affected by this. We've seen lots of lots of cases come out of these states with abortion bans where someone is miscarrying. It is clear that this pregnancy is not going to survive, there's nothing to do, but because there's still a fetal heartbeat, they won't give these women care. What ends up happening is that they wait and they wait. We've seen cases where women have gotten septic, they've ended up in the ICU.

They've ended up having to have hysterectomies because that was the only legal way doctors figured that they could end the pregnancy to save their life. It is so much worse than anyone can possibly imagine. The thing to remember, too, is that we are only hearing a very small percentage of the stories. The people who are coming out with these experiences are people who feel safe enough, who feel secure, who feel like they're okay going to the media. That's a very small percentage of people who are comfortable sharing their most tragic and personal stories with the country.

Matt Katz: Are people contacting you directly, women across the country or medical providers about their experiences?

Jessica Valenti: Yes. Too many for me to handle, to be honest. Every single day, I'm hearing another story from a woman who has been denied care. A doctor who is horrified by what their state is requiring them to do, and who wants advice or who wants to talk or who wants to share their story. The overwhelming thing around all of this is fear. I think for a lot of them, especially doctors. They contact me, they want to help, they want to do better, but they're operating in scenes where they could lose their medical license, where they could be not just criminalized and sent to prison, but civilly fined.

There's all of these barriers for them to provide the care that their patients need. That's why we're seeing in states like Idaho, Idaho is losing half of its OB/GYN and maternal-fetal specialists. Half. Hospitals are shutting down their maternity wards in Idaho because they cannot hire OB/GYNs to work there.

Matt Katz: Because the OB/GYNs are concerned about the legal implications of how to handle a complicated [crosstalk].

Jessica Valenti: Yes. Why would you want to work in a state where you might be sent to prison for doing your job? It's not worth it. I've spoken to these doctors, and a lot of them feel terrible because they know that by leaving, they are increasing the chance that the women in those states are not going to get terrific care, but they also have families of their own. They're worried about going to jail. They're worried about taking care of their children. It's a really difficult time.

Matt Katz: We're going to go to the phone lines, but before we do, let's take a quick break. We'll be back in just a minute to take your calls and shift to the politics of abortion with Jessica Valenti, founder of abortioneveryday.com. Stay with us.

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Matt Katz: It's The Brian Lehrer show on WNYC. I'm Matt Katz, a reporter with WNYC and Gothamist filling in for Brian who has this very warm Friday off. I'm talking to feminist author Jessica Valenti, founder of the substack newsletter, abortioneveryday.com. Jessica, I want to go to our phone lines, people have some thoughts and questions. Tim in Brooklyn. Hi there, Tim.

Tim: Hey, Matt. I'm calling for the medical community just on that exact subject which we left off on to grow a spine and to uphold their oath to do no harm and give the drugs that are proven effective and do the least harm. In effect, I'm calling for a movement of some in the medical community civil disobedience. When we know the science and we know that this is just political misogyny, entrenching misogyny into law yet again, and the medical community has an obligation to take care of the patients.

Of course, not everyone can risk going to jail, I understand that, but let's grow a spine here, people. Let's provide the care. If we need to make some martyrs, there should be some people in the position to stand up to this and call it what it is and provide the care. Women's lives and health are at stake.

Matt Katz: Thank you, Tim. I appreciate it. Jessica, what do you make of that? Can the medical community organize here and do that sort of I guess, mass civil disobedience?

Jessica Valenti: There definitely have been calls for that. I want to start by saying the medical community in all of these states, doctors in all of these states have been extraordinarily vocal about the harm that this is doing to patients. I just want to make it clear, they're doing a lot there. That said, there have been calls for civil disobedience. There's been some conversations about whether older OB/GYNs want to step up and be the ones who are breaking the law.

There's conversations about, "Okay, who can afford to go to prison? Who can't? Who is towards the end of their career, and maybe losing their license will not mean the same thing to them?" Which is a horrifying conversation to have. That is a horrifying conversation, where doctors and anti-choices are having to talk about "Okay, who's the best person to lose their license and go to prison?" It's chilling, honestly.

Matt Katz: Ashish in West Windsor, New Jersey is also calling. Hi there, Ashish. Thanks for calling in.

Ashish: Hi. Good morning, Matt.

Matt Katz: Good morning.

Ashish: I only have a daughter, and we actually moved from Texas to New Jersey five years ago. I thank my stars for making the decision at that time. What I wonder is what do the common people think. Why is this in the hand of politicians, because the nation is divided between red and blue. States like Texas talking about banning websites now that will talk about abortion. Tomorrow, the Google hasn't banned your radio show. How will we ever be able to have an open dialogue about this at least the red states?

Matt Katz: Yes. Jessica?

Jessica Valenti: This is such a terrific and important question. I want to say the vast majority of Americans are pro-choice. The vast majority of Americans are horrified by these abortion bans, do not want to see abortion restricted. That is not just true in blue states, that is true in red states. That is true across the board. You go to some of these states, and you take these polls and politicians are shocked. This is part of the reason that across multiple states, Republicans are working really hard to make it impossible for people to pass pro-choice ballot measures.

We saw pro-choice wins with ballot measures in Kentucky, in Kansas, places where you wouldn't necessarily think that that would happen. Now you have states like Ohio and Missouri, where Republicans there are trying to push through legislation that says, "You know what? If you want to pass a ballot measure, you need to have 60% of the votes, instead of a simple majority."

They are doing all sorts of anti-democratic workarounds to try to keep voters as far away from abortion as possible because they know that abortion rights are so incredibly popular. That really gets at the heart of this issue to me. This is not about abortion as a controversial issue that Americans are evenly split on. We're not. This is about a small group of powerful extremists, legislators and organizations, enacting restrictions on abortion that the majority of Americans do not want.

Matt Katz: Those decisions are also being affirmed by the courts, often, right?

Jessica Valenti: In some cases, yes. In some cases, because we have these conservative extremist courts, or we have judge shopping as we saw in Texas. We also have places like in Montana, for example. In Montana, the abortion rights are protected in the state constitution. What Republicans are doing in Montana is they are trying to make it so that people are not allowed to vote in the state Supreme Court elections so that the governor can appoint justices to the state Supreme Court, and so that the people who are interpreting the state constitution are all conservatives.

They're trying to pass bills that say, legislators have the same right to interpret the state constitution as the state Supreme Court does. They are also messing with the credibility of the court in order to ban abortion. They are pulling out all the stops.

Mark Katz: Joycey in Yonkers is on the line. Joycey, are you there?

Joycey: Yes, I am. I can't figure out how to stop streaming, so I hope that's not a problem.

Mark Katz: Hi. I think you're fine.

Joycey: Jessica, can you hear me?

Jessica Valenti: Yes.

Joycey: Jessica, first of all, thank you so much for what you're doing. You're amazing. I can't believe how much strength you have, just do this every day. Anyway, I follow you on TikTok and I think you're amazing.

Jessica Valenti: Thank you.

Joycey: My question is about the way this case was brought. These anti-abortion doctors, judge shop, found this judge, and how is it that they have standing? How is it that they are directly affected? How can they argue that? I don't understand that. Do you understand my question?

Jessica Valenti: I think so. It's a real problem, and I'm actually going to be on a panel later today about this very thing and about the issue of how do we protect democracy in the courts? How is it possible that something like this could happen where an anti-choice organization could go and form, by the way. They didn't exist. They went and they formed the organization in Amarillo, Texas, because that is where this judge was, because they knew they wanted this judge.

They handpicked this judge, and by the way, this is a judge that they found social media pictures of his kids wearing, "I Survived Roe V. Wade" shirts. This is not a judge who hides his activism. This is an anti-abortion activist judge. They handpicked this judge, and it's reflected in the ruling. The entire ruling is just peppered with anti-abortion language, false rhetoric, and it does terrify me that this was allowed to happen. This is why you see so many law professors, legal experts, talking about this, not just how it relates to abortion, but the integrity of our court system.

Mark Katz: Jessica, we've been talking a lot about the courts and the saying that these decisions don't reflect the larger popular opinions on this issue. In the wake of the Dobbs decision, state legislatures where the name of the game for anti-abortion legislators for so long has been to chip away at Roe, we're seeing them pass these bills. These are elected legislators who are passing bills limiting, or basically almost banning abortions.

Last night in Florida, Governor DeSantis signed a bill passed by the state legislature to ban abortions after six weeks of pregnancy. I saw a tweet in reference to this yesterday from New York State Senator Julia Salazar, she said four years ago, I had to terminate a pregnancy through medication abortion here in New York. It was not a tough decision for me. I knew then and know now it was the right thing to do, but she says, "I found out I was pregnant at seven weeks." Banning abortion at six weeks really makes it essentially an outright abortion ban, doesn't it? Can you talk a little bit about what's happening at the state level in the state houses?

Jessica Valenti: Sure. Yes, that amounts to a total abortion ban. Six weeks is before most people will know that they're pregnant, and that is part of the point. The other thing to know is that a lot of these bills are incredibly extreme. The bill that DeSantis signed last night, for example, it bans abortion, the exceptions, and I put exceptions in scare quotes for rape and incest are so onerous that no one would ever be able to use them, which is part of the point, and that's the case with all rape and incest exceptions.

There's language in the bill that says that it is criminal, it is a felony for anyone who actively participates in an abortion. That doesn't just mean a doctor, the person who's getting an abortion, that is so broad that it could mean if you drive someone to get an abortion, that could be a criminal act. If you lend someone money for an abortion, that could be a criminal act. We're seeing just this complete mess in these states, and they're taking it as far as they possibly can.

Like we saw in Idaho, they passed what they're calling an abortion trafficking bill, where they're trying to criminalize anyone who takes a teenager out of state for abortion care. If a teenager has their grandmother or their aunt drive them to Washington from Idaho, that grandmother or aunt could go to prison for two to five years. They are really going all out, but at the same time that they are passing this really extreme legislation, they are pretending as if they're not.

They're pretending as if there's exceptions, they're pretending as if women won't be criminalized because they know that abortion rights are so popular. They're trying to tweak their messaging about these really extremist laws.

Mark Katz: Rick in Queens has a question related to this criminalization issue. Hi, Rick. What's your question for Jessica Valenti?

Rick: Hi. My question is this, the FDA eventually gave permission, said that this pill could be mailed, and the court in Texas state has reversed that. How does that create any criminal liability on the part of anybody who turns around in mails that especially someone from overseas, who mails it to somebody who requests it? Where is the criminal risk?

Mark Katz: Thanks, Rick. That's interesting.

Rick: This is not a matter of criminal law, this is just the FDA saying, we find this pill is something that you could administer through the mail. You don't need a doctor's visit. That's what the FDA found. Good for them, but where's the criminal liability if I just choose to mail it, anyway?

Mark Katz: Thanks, Rick.

Jessica Valenti: That's a really good question. If you are in a state that bans abortion, there is definitely criminal liability. If you are in a state that does not ban abortion, there should not be, and that is why we're seeing a lot of states pass protective legislation that says you can't be prosecuted, you can't be extradited to anti-choice states. It's causing a lot of confusion, and we're going to come to a point where these conflicting state laws really become an issue.

If an abortion fund in Washington mails abortion medication to someone in Idaho, can Idaho go after them? Washington is trying to pass legislation that says that they can't, but it becomes really confusing and really scary very quickly. That said, people are continuing to mail abortion medication. That is certainly how a lot of people in anti-choice states are getting it. They're going to places like aidaccess.org or Plan C pills. That is happening across the country even in anti-choice states because it is safe and effective, and it's fine for it to be mailed.

Mark Katz: Jessica just got a message from our producers here, some breaking news. I'm going to read the lead from the AP, "The Biden administration on Friday asked the Supreme Court to block part of a court decision that prevents pregnant women from obtaining key abortion drug mifepristone by mail. Very relevant, but the Supreme Court seems at this moment to be decidedly essentially pro-life. Right?

Jessica Valenti: Yes. Again, we don't know how that's going to come down, but I want to say no matter what they decide, this issue around mailing is going to be really important, especially if we end up with a Republican administration after 2024 because what they're relying on, it's a little complicated. They're relying on something called the Comstock Act, which is like this very old law that says you can't mail obscene materials.

They have decided that abortion medication is an obscene material, but because of the way that this law is written and interpreted, again, especially if we have a Republican administration, that means that tools that are used in abortion procedures could be illegal to mail, to pro-choice states. When you're talking about the mailing system, it becomes really complicated and it impacts everyone.

Mark Katz: You mentioned this Republican administration in 2024, to what extent are Republicans who are considering running in 2024 or already running in 2024, to what extent are they caught needing to support abortion restrictions to win primaries, but then maybe in political trouble when facing a national electorate? How are they so far trying to navigate this?

Jessica Valenti: The only person so far who has been consistently anti-abortion with no qualifiers is Mike Pence. I think Mike Pence is the favorite of the big anti-abortion organizations because they know that he was just going to continue on with that. We're seeing other candidates get a little nervous like Nikki Haley, for example, gave a speech in Iowa where she sounded pro-choice. She's not at all, but she said things like, "Abortion is a personal decision, and I don't think unelected judges should get to say what you do in personal decisions." Ron DeSantis is going to have a real problem because this six-week ban is so extreme.

He is not going to be able to do what a lot of Republicans are doing right now, which is saying, "Oh, I support a 12-week ban, a 15-week ban. I think that's reasonable." Of course, it's not. That's not a reasonable restriction. He is not going to have the ability to say that because in his state, he has what amounts to a total abortion ban. I think this is going to be a huge issue for him as he goes forward.

Matt Katz: Then there was South Carolina senator, Tim Scott, who announced the presidential exploratory committee. It didn't seem like he could really answer a question about how many weeks he would want to ban abortion at, which seems to be a major question. There is support in the center of the political spectrum for restricting abortion after x number of weeks or months. It seems that these Republican candidates are going to have to come up with their marker in that regard, right?

Jessica Valenti: I think that center is rapidly evaporating because of the stories that are coming out of these states. You can say, "Oh, I support an abortion ban at 20 weeks."

Guess what? 20 weeks is when you have a really important fetal scan. That's when you find out about severe abnormalities. When you look at a lot of the horror stories that are coming out of these states, you're talking about people who are 23, 24, 25 weeks into pregnancy.

It just goes to prove again and again that pregnancy is too complicated to legislate at any point. Republicans are hoping that if they claim that they're being reasonable, they claim that they're being moderate, that that will somehow appeal to voters. I think it's going to be harder for them to do that the more of these stories come out.

Matt Katz: We're going to go to one more call before we let you go, Jesica. Ruth on the Upper West Side. I think she has a question related to the politics of all of this. Hi, Ruth.

Ruth: Hey, I have to ask this. I've watched now for years, Republican voters voting not in their best interest because they've been buying the party lies. What I don't understand today is how Republican women with daughters who are invested in these laws are still able to vote on this and vote Republican in the coming up elections. I know the Republicans strategize, so what the hell are they thinking?

Matt Katz: What the hell are they thinking, Jessica?

Jessica Valenti: They are thinking that they will always be able to get the abortion they need. They are thinking that there will always be an exception for them. They are quickly finding out in these states that there is not. We are seeing that again and again. A lot of these stories that are coming out are from women who are Republican who are saying, "I thought that there was an exception. I thought I was going to be able to get care and I'm not." Then they say they're going to become single-issue voters. I think we're going to see more and more of that. There is this denial that happens where you think it'll be fine. I'm going to be able to get the healthcare that I need. It's just not true.

Matt Katz: Will their reaction to all of this make a difference in time for the 2024 election? Could you see moderate GOP women maybe cross party lines, vote for a Democrat for president in 2024 over this, or are the ramifications, are the effects going to take a little bit longer to affect the electorate? I guess that's a very dull question.

Jessica Valenti: Yes, it is. It's like, who can really make an accurate prediction? From what I am seeing, women are angry. Women are really, really angry across the political spectrum and they should be. I'm hoping that they take that anger with them to 2024.

Matt Katz: Jessica Valenti writes abortioneveryday.com on substack. She's a feminist author of many books. Co-editor of Believe Me: How Trusting Women Can Change the World. Jessica, thanks so much for joining us for this conversation. Really appreciate it.

Jessica Valenti: Thank you

 

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