Return of the Abortion Pill Wars

Summary

Podcast Summary: Amicus With Dahlia Lithwick – "Return of the Abortion Pill Wars"

Episode Date: May 16, 2026
Host: Dahlia Lithwick (with Mark Joseph Stern)
Guests: Madiba Denny, Elise Hogue

---

Overview

This episode of Amicus delves into the resurgence of legal and political battles over medication abortion—specifically mifepristone—at the Supreme Court. Host Dahlia Lithwick and co-host Mark Joseph Stern are joined by legal analyst Madiba Denny and activist/writer Elise Hogue to unpack the implications of recent court decisions, the intertwining of abortion rights with democracy and voting rights, and the enduring failures and lessons in progressive messaging.

---

Key Discussion Points and Insights

1. Supreme Court Blocks Nationwide Ban on Mifepristone Telehealth and Mailing

Segment: [03:41]–[22:27]

• Background: The Supreme Court issued a 7-2 decision blocking the Fifth Circuit's nationwide ban on prescribing mifepristone via telehealth and shipping the medication by mail—at least temporarily.
• Conservative Legal Maneuvering: Madiba Denny outlines how conservative legal activists are seeking "backdoor" national abortion bans, regardless of state laws ([04:13]).
• The Fifth Circuit's Overreach: The Fifth Circuit, responding to Louisiana's suit against the FDA, enacted a nationwide injunction, threatening access across both red and blue states ([05:33]).
• Historical Echoes: Denny notes disturbing parallels between current interstate abortion enforcement disputes and fugitive slave laws ([07:16]).
• Why the Supreme Court Paused the Ban: Stern and Denny speculate that the Court’s majority (Barrett, Kavanaugh, Roberts, Gorsuch) acted mainly to avoid economic disruption of the pharmaceutical industry, and to resist judicial overreach on regulating medications ([08:56]–[11:42]).
  • Quote (Madiba Denny, [09:52]): "These people don't care at all about reproductive autonomy, but interfering with a pharmaceutical company—they might pump the brakes a little bit."
• Dissents from the Far-Right Justices: Clarence Thomas and Samuel Alito vigorously dissented, using caustic language and equating medication abortion with criminal enterprise ([11:42]–[19:18]).
  • Quote (Clarence Thomas, as cited by Stern, [12:26]): "'Applicants...are not entitled to a stay based on lost profits from their criminal enterprise.’ That's medieval."
  • Quote (Mark Joseph Stern, [14:31]): "Medieval is not exaggerating. He literally described abortion as racist eugenics in a previous opinion."
• Alito’s Anger at Blue States: Alito complains that blue states’ 'shield laws' and telehealth workaround invalidate his Dobbs decision, revealing an anti-federalist drive for a national abortion ban ([14:59]–[19:18]).
  • Denny ([16:40]): "He is shocked and appalled…gives the game away a bit that this was never actually about restoring freedom to the states."
  • Stern ([17:27]): "Blue states have no authority to protect abortion providers and patients; it's so obvious what he's doing here."

2. Strategic Delay: The Trump FDA and Election Calculus

Segment: [19:18]–[22:27]

• FDA Delays and Political Calculations: The Trump administration has reportedly postponed action to restrict mifepristone until after the 2026 midterms due to reproductive rights’ broad popularity.
• Supreme Court's Role: Denny and Stern argue that more pragmatic conservative justices want to avoid public backlash by letting the administration, not the judiciary, lead the crackdown on medication abortion—slowly and quietly ([20:54]).
  • Quote (Madiba Denny, [20:54]): "We see the Supreme Court actively advancing that agenda, but trying to do so in a way that it thinks might sustain its power…"

3. The Narrative and Political Meaning of Redistricting, Voting Rights, and Abortion Battles

Segment: [30:02]–[41:09]; [44:04]–[57:46]
Guest: Elise Hogue

• Calais Decision Fallout: Hogue places the recent Supreme Court decision in Calais (curtailing Section 2 of the Voting Rights Act) in a decades-long right-wing strategy to consolidate power via court capture, propaganda, and voter suppression ([30:59]).
  • Quote (Elise Hogue, [30:59]): "The left treats the courts as a pathway to justice and the right treats the courts as a pathway to power."
• Democratic Messaging Failures: Hogue critiques progressives for "over-indexing" on legal process arguments and underinvesting in broad, values-driven storytelling, which cedes the narrative terrain to conservatives ([34:16]).
  • Quote (Hogue, [34:16]): "Democrats and progressives have over indexed on legal strategies and under indexed on narrative…"
• Contrast in Messaging: Conservatives lead with values—claiming "universalism" and "equality"—while the left leads with technical and procedural arguments, failing to connect emotionally or culturally ([38:36]).
• Recurring Missed Opportunities: Lithwick notes the lack of narrative cohesion after similarly momentous decisions, making it challenging to mobilize public response or sustain movements for systemic reform ([41:09]).

4. Abortion Rights as Democracy Battles

Segment: [44:15]–[49:47]

• Abortion Bans and Authoritarianism: Hogue contends the battle over reproductive freedom is fundamentally about freedom vs. control—democracy vs. authoritarianism. She criticizes the current progressive response as overly technical, losing sight of clearer, freedom-based messaging ([45:49]).
  • Quote (Hogue, [45:49]): "Mifepristone scares the hell out of the anti-choice movement…because when people hear…you can take a pill and the whole pregnancy goes away, it in one second cuts through all their BS."
  • Quote (Hogue, [49:47]): "[The right is] relying on propaganda…we have won when we claim that mantle of we are fighting for freedom, they are fighting for control."
• Process vs. Values Argument: Hogue laments that the main narrative post-mifepristone ruling was a dense "process argument" disconnected from core freedoms—an ineffective strategy with the public ([49:51]).

5. Legal and On-the-Ground Responses to the Mifepristone Fight

Segment: [54:12]–[57:46]

• Movement Division: Hogue describes two camps:
  • Some groups are laser-focused on continued abortion access, adapting quickly to regulatory challenges (e.g., misoprostol as a backup).
  • Others are seeking to shore up political support and legal frameworks—but are failing to make compelling, values-driven arguments when communicating publicly ([55:15]).
  • Quote (Hogue, [55:15]): "[Some are] dedicated to providing access…Others, this does need to be their fight: the politics and legal framework to allow freedom of personal decisions…"

6. Media Matters Victory and Free Speech in an Authoritarian Era

Segment: [57:46]–[63:35]

• Media Matters v. FTC: Hogue discusses Media Matters’ successful legal resistance to a Trump-era FTC investigation, hailing it as a template for courage and legal accountability in hostile political environments ([58:19]–[63:35]).
  • Quote (Hogue, [58:19]): "The investigation was so broad…designed to silence Media Matters but also…make an example…so everyone else would be like, whoa, I do not want those people on me like that."

7. The Need for Universalism and Activism

Segment: [63:35]–[72:01]

• Restoring Democratic Values: Hogue emphasizes the enduring American beliefs in equality, freedom, and the rule of law. She champions reclaiming "universalism" and core values—freedom, participation, equal protection—from right-wing manipulation ([66:21]).
  • Quote (Hogue, [66:21]): "The authoritarians thrive on divisions…They don't believe they have to give up their own identity to stand in community with their neighbors."
• Litwick on Voting as an Embodied Value: Dahlia ties these democratic values to the act of voting—a tangible way for people to participate and affirm their commitment to democracy, not just outcomes ([69:50]).
  • Quote (Lithwick, [69:50]): "There is nothing more embodied…than the act of voting. It is a thing people can do and commit themselves to helping other people do it."
• Participation as the Antidote: Both host and guest agree that emphasizing participation, not just electoral outcomes, is key to revitalizing American democracy ([71:12]).
  • Quote (Hogue, [71:12]): "The outcome is secondary to the act of participation that makes us fundamentally bound together in American values."

---

Notable Quotes & Memorable Moments

• Mark Joseph Stern ([07:49]): "It is fugitive slave act redux in so many ways."
• Madiba Denny ([12:53]): “He really describes these pharmaceutical companies as if they're some guy on the corner selling heroin…"
• Dahlia Lithwick ([41:09]):

  "It's a technocratic response to a spiritual crisis. And we never win when we offer that sort of asymmetry in response."

• Elise Hogue ([66:21]):

  "The authoritarians thrive on divisions...Everywhere I go, the thing that people start an agreement on are those fundamentals: equality, freedom, opportunity, checks and balances, rule of law."

---

Timestamps for Key Segments

• [03:41] – Medication abortion returns to the Supreme Court; the significance of telehealth access
• [05:33] – The Fifth Circuit’s nationwide ban explained
• [08:56] – Why SCOTUS intervened; business implications
• [11:42] – Thomas and Alito dissents: the criminalization rhetoric
• [19:18] – FDA’s delayed review, election timing, and Court strategies
• [30:59] – The long conservative strategy: court capture, propaganda, disenfranchisement
• [34:16] – Narrative failures post-Calais; messaging breakdowns
• [45:49] – Abortion rights as freedom vs. control; anti-choice propaganda
• [54:12] – The state of reproductive rights organizing and movement divisions
• [58:19] – Media Matters’ legal win and its implications for free speech
• [66:21] – Reclaiming universalism; democracy as a core American value

---

Concluding Tone

The episode is incisive yet urgent, blending legal analysis with advocacy. Stern and Lithwick's candor about the Court’s maneuvers is balanced by Elise Hogue’s persistent optimism about the foundational American belief in equality and participation. The recurring call is for progressive lawyers, organizers, and storytellers to foreground values—especially freedom and democracy—as they battle creeping authoritarianism and legal attacks on abortion.

---

Summary Takeaways

• The Supreme Court has (temporarily, at least) protected access to mifepristone via telehealth and mail—but not due to strong support for reproductive freedom; rather, practical and political considerations about business disruption and timing dominate.
• Conservative legal attacks on abortion rights are deeply entwined with broader assaults on voting rights and democracy itself.
• Progressives routinely falter by prioritizing legal process over clear, values-forward storytelling.
• The right is more skilled at connecting with broad audiences by leading with universal values, even if disingenuous.
• Reproductive rights and voting rights are, at base, democracy issues, and must be fought with democratic values at the center.
• Civic participation, especially voting, remains a powerful, embodied act at the core of the American experiment.
• Moments of legal resistance (such as the Media Matters case) provide a model for standing up to authoritarian overreach.
• There is enduring optimism to be found in American communities’ attachment to freedom, equality, and shared purpose.

---

For listeners (and non-listeners), this episode provides a comprehensive, sophisticated map of the current legal and political abortion landscape, as well as the deeper democratic stakes and the messaging challenges—and opportunities—that shape the coming battles.

Transcript

[Verizon Advertiser]

Now more people than ever can bring in their bill for a better deal at Verizon. Got AT&T or T Mobile? We got you Xfinity or Spectrum.

[Madiba Denny]

You too.

[Verizon Advertiser]

So tell your friends, your family, your quirky neighbor Jeff, grab your megaphone and yell it from the rooftop. Get a better deal at Verizon because chances are anyone in shouting distance is included. Bring in your at&t t Mobile, Xfinity or Spectrum bill and we'll give you a better deal on the best network Come by Verizon today. Best Network based on RootMetric's best overall mobile network performance US 2nd/2025 all rights reserved. Must provide recent consumer mobile bill in the name of the person redeeming the deal. Additional terms, conditions and restrictions apply.

[Walden University Sponsor]

Support for this podcast is brought to you by Walden University. Ever catch yourself thinking, what if I could go after what I actually want and really make a difference? You're not alone. And that's exactly why I want to tell you about Walden University. For over 50 years, Walden has helped working adults like you get the W with the knowledge and skills to build the future you want and make a difference where it matters most. If you've been waiting for the right moment, this is it. Head to WaldenU.edu and take the first step. Walden University set a course for change. Certified to operate by Chev.

[Dahlia Lithwick]

This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick.

[Mark Joseph Stern]

And I'm Mark Joseph Stern.

[Elise Hogue]

The left treats the courts as a pathway to justice, and the right treats the courts as a pathway to power. These are very dangerous drugs.

[Madiba Denny]

I mean, the potential for harm to pregnant women is really significant.

[Elise Hogue]

It's effective, it's essential. It's safer than Viagra. If you hold positions that are not popular, you have to find ways to shield yourself from that accountability, and that means fewer people being able to vote.

[Dahlia Lithwick]

The Democrats, they've redistricted for years and

[Mark Joseph Stern]

now we took our shot and it looks like we're going to pick up a lot of seats. And that's a good thing.

[Elise Hogue]

Calais is one in a very, very long line. Decisions that was teed up after they felt like they had the bulletproof majority of the court to enact this strategy where they could hold supreme control and yet insulate themselves from the consequences. When our communities are split apart, our

[Madiba Denny]

maps are redrawn for political convenience, we

[Elise Hogue]

not only lose representation, but trust in

[Mark Joseph Stern]

the democratic process as a whole.

[Elise Hogue]

There was not a huge visceral response from the public given the gravity of the decision, and we really need to understand why if we're going to do better.

[Mark Joseph Stern]

This is Mark Joseph Stern, Slate senior writer and amicus co host. I'm back from parental leave for now and hopping into the host chair on Main to bring you up to date with the Supreme Court's late Thursday decision to block the fight and FIT Circuit's nationwide ban on prescribing the abortion drug mifepristone virtually and sending it through the mail. Dalia will be with us a little later for a conversation with writer, activist and former president of NARAL Pro Choice America, Elise Hogue, who will lay out all the ways the legal assault on medication abortion is part and parcel of attacks on the right to vote and how failing to explain that to voters could be disastrous for the midterms and beyond. But first, it's deja vu all over again as medication abortion returns to the Supreme Court. Here to talk through Thursday's emergency order is our dear friend Madiba Deni, deputy editor of Balls and Strikes and author of the Originalism Trap. Madiba, welcome back.

[Madiba Denny]

Thanks so much. Love being here.

[Mark Joseph Stern]

So, Madiba, on Thursday, the Supreme Court issued what appeared to be a 7 to 2 decision once again overruling the 5th Circuit on mifepristone. That, of course, is the first drug used in a medication abortion, which has been FDA approved for 26 years and found to be extremely safe and effective in literally hundreds of studies. Just to start, can you remind us why mifepristone is back at the courts right now and we're all experiencing this ptsd?

[Madiba Denny]

The answer to that is because the conservative legal movement is still trying to stop people from being able to access abortion nationwide. It doesn't matter if you're in a state where abortion is legal. It doesn't matter our constitutional rights now that they tossed aside the 14th Amendment in lots of cases really. But most relevantly here, Dobbs, they are still trying to find this backdoor way of preventing people anywhere from getting abortions. How we see that playing out in this case is challenging the legality of the way that people can get mifepristone. Basically, the FDA had changed a rule saying, you know what, it's okay to prescribe this safe medication with telemedicine. You don't need to have like an in person appointment with a doctor or anything. So people have been getting mifepristone through the mail testifying for years. And Louisiana is upset about this. Louisiana's government sued the FDA trying to set that rule aside because they're saying, hey, how are we supposed to stop people from getting abortions if they can just go online and a doctor can prescribe it to them and it be mailed to them here? I still want to make sure that people aren't getting abortions. And so this federal government allowing people everywhere to get medicine online is interfering with that.

[Mark Joseph Stern]

And so Louisiana went to the fifth Circuit, said, you have to block this FDA rule. And the fifth Circuit said, yes, we agree. Just nationwide block on telemedicine prescriptions and mailing of mifepristone, because nationwide injunctions are okay when Republican judges do it.

[Madiba Denny]

I was honestly caught off guard when I was just like, aimlessly scrolling on my phone and then see, like, 5th Circuit bans miferpiston nationwide.

[Dahlia Lithwick]

I'm like, nation nationwide.

[Madiba Denny]

I thought we went over this. Like, didn't we just say, you can't do that? I remember being told that we can't do that, but I forgot about the classic Republican legal doctrine of this is different because of reasons.

[Mark Joseph Stern]

So, yeah, and just so we're clear, I mean, you mentioned this at the top. Like, the reason this was such a big deal is because it affects blue states and red states. Right. So in blue states, this would have required individuals to actually go physically to a clinic and obtain mifepristone in person for no safety reason. Because we know this is a very safe drug, safer than Viagra, safer than Tylenol, safer than all kinds of drugs that are very loosely regulated. And in red states, this would have had an even bigger impact, because as you mentioned, right now what's happening is that providers are prescribing and mailing mifepristone into red states from blue states. And the fifth Circuit's obvious goal here, this was what Louisiana was asking for, was to stop that from happening, to end the pipeline of medication abortion from blue states into red states by making it unlawful to prescribe and mail these pills through telehealth. So this was a big deal for everybody, no matter where they live. But it was an especially burdensome ruling for people who live in red states because the telehealth access to miferstone has just been a lifeline for them.

[Dahlia Lithwick]

Yeah.

[Madiba Denny]

And I really want to just take a second to acknowledge the historical context here, because doesn't this all just sound grimly familiar, even Setting aside, we're back at the court talking about abortion again, it's like, huh, a Southern state going to the courts and complaining about free states, helping out people in their states and saying that this is somehow you know, an infringement on their right as a state to oppress the people within its borders and limit their own bodily autonomy if they can somehow access lifelines and help and services from freer states. Where have I heard this before?

[Mark Joseph Stern]

Mm. It is fugitive slave act reduct in so many ways. Okay, so the Supreme Court actually did the right thing here. On Thursday, the Supreme Court froze the Fifth Circuit's nationwide stay, nationwide injunction, whatever you want to call it, and that allowed providers to continue prescribing mifepristone via telehealth and sending it through the mail for now. We got two pretty disturbing dissents from Justices Clarence Thomas and Samuel Alito. They are big mad. And we'll get to that in a moment. But first, I just wanna briefly kind of spitball here. Why do you think that the Supreme Court did this? Because it didn't actually explain its reasoning. So before we get to the practical stuff and the political stuff, just legally, do you think that this was Barrett, Kavanaugh, Roberts, and Gorsuch trying to say, no, we really meant it about these nationwide injunctions. Do you think they just want to keep abortion away from the Supreme Court and they thought that the Louisian a standing argument was really weak? Like, I mean, this was a very similar argument that Louisiana raised to the one that was in the last medication abortion case where the Supreme Court said there was no standing. So do you have any speculation as to why this happened?

[Madiba Denny]

I have two thoughts, and only one of them is kind of related to the law. So the legal part of it is. I think you raise a good point in that they're like, we already said there's no standing here. Isn't this like the same thing we just did? We meant what we said last time get out of our faces. So I think that could very well be part of it, but I think another part of it is actually kind of like something we get from bit a sense. We get these really pretty sassy disrespectful arguments in Thomases and Alito's dissents that are like, oh, these companies are mad because they're getting lost profits off of, like, abortion drugs that they shouldn't even be selling anyway. Da, da, da, da, da. And I think what they're saying is terrible, but for the conservative justices, they might actually kind of have a point. These people don't care at all about reproductive autonomy, but interfering with a pharmaceutical company, they might pump the brakes a little bit and say, like, well, hang on, I don't know about disrupting this big business. Interest nationwide. Because again, it's not just about the red states. It would change how medication distribution works across the country. And I can see Roberts getting a little like, oh, I don't know about changing this business regulation for this massive conglomerate just like overnight. I don't know about that.

[Mark Joseph Stern]

That's really interesting. And it does align with a lot of the worries that were raised by the biopharma industry in the last mifepristone case where you had a bunch of companies that have nothing to with abortion. Right. That make and sell prescription drugs saying this is a horrible precedent to set. We cannot have the Judiciary overruling the FDA's own decisions about which drugs should be available and how they should be made available. The real risk here was that the sort of FDA approval process, which is the international gold standard, could be meddled with by unelected judges who know nothing about medicine or science, and that it could throw the entire biopharma industry into disarray. Even more so than RFK Jr already has. Right. As head of HHS, I really do think that's possible. And I hadn't even considered it, frankly, until this point that the other conservatives, the non nihilist MAGA conservatives, were like, okay, let's give the industry a little help here. Like, we don't want the fifth Circuit saying it knows better than the fda.

[Madiba Denny]

Yeah, you have the ideologues, the fully committed ideologues doing their thing in the dissent. And, and you have like the other that are like fairly ideological. But also, let's not forget about the money, let's not forget about the businesses. It reminds me of the tariffs case in a way, and also reminds me of the Federal Reserve removal powers case in a way where it's like all of these same arguments that you're raising now apply to these other cases where you didn't care about it, but now you're like, oh, messing with the global economy. I don't know about that.

[Mark Joseph Stern]

Totally. Okay, so let's talk about those extreme ideologues. Let's talk about the MAGA Justices Thomas and Alito. We'll start with Thomas. And his dissent was so insane. So he wrote that abortion providers who mail mifepristone should be thrown in prison rather than granted relief by the Supreme Court. He claimed, I'll just quote here. It is a criminal offense to ship mifepristone for use in abortions under the Comstock act of 1873. Then he added, applicants which are the makers of these drugs are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot in any legally relevant sense, be irreparably harmed by a court order. Order that makes it more difficult for them to commit crimes. So that's medieval.

[Madiba Denny]

Outrageous.

[Mark Joseph Stern]

It's actually heavily contested whether the Comstock act does apply to this conduct. Right. There are multiple interpretations of it. The Biden administration made a very strong argument that it did not apply in this context. What do you make of Justice Thomas just throwing down as, like, making the Comstock act great again and declaring that all of these providers who are mailing these pills are felons who should be locked up immediately?

[Madiba Denny]

He really describes these pharmaceutical companies as if they're some guy on the corner selling heroin. Oh, they're profits from their criminal enterprise. I'm just like, okay, buddy, somebody's been watching too much crime tv. It is really egregious and just really trying to legitimize what was once a fringe theory that the Comstock act does apply here, that it is valid, that it's still good law and should be used to prosecute so many people. How many individuals would be caught up in this? We're thinking about people at the pharmacies, at the companies themselves, the doctors. This is threatening to incarcerate so many people for the crime of pursuing basic healthcare and, like, helping make that possible. It's truly something absurd. I think it just shows how far gone Clarence Thomas is. The language is on another level.

[Mark Joseph Stern]

And we should note that Thomas's language here comes straight from the crazy far right. Anti abortion advocates, arguments and briefs. Right. They have been saying for years that this is a criminal network and a criminal conspiracy. And Thomas is just like, absolutely. I'm just gonna copy paste that stuff into the US Reports. Right?

[Madiba Denny]

Mm, for sure. I think you have seen this sort of trend for Thomas for a while. He always describes abortion as this really nefarious, racist eugenics operation happening across country. And, yeah, he's really seized the opportunity to put that into his dissent here and mix in some criminality for good measure.

[Mark Joseph Stern]

And let's just be clear. Medieval is not exaggerating. He literally described abortion as racist eugenics in a previous opinion. So this guy is not pretending to be a neutral judge in these cases. He is like, we must outlaw abortion and imprison everyone who participates in it, including, quite possibly patients. Let's turn to Justice Alito, whose dissent is longer and I would say slightly less crazy, but also way funnier because he's just so big mad.

[Madiba Denny]

Yeah.

[Mark Joseph Stern]

So Justice Alito has this whole dissent where he's complaining that blue states are undermining his decision in Dobbs, which had overruled Roe v. Wade by allowing their providers to, of course, mail these medication, abortion pills, into red states where abortion is totally banned. And Alito actually points out that there are more abortions happening in Louisiana now than before Dobbs because of telehealth abortion. And he faults the FDA.

[Madiba Denny]

Good for you, LA.

[Mark Joseph Stern]

Yeah, totally, totally. Like, rock on, LA. We love reproductive freedom. We love owning Sam Alito too. But he's like, this is the FDA's fault. They are facilitating this felonious conduct because they're allowing for the telehealth prescription and mailing of abortion pills.

[Madiba Denny]

Again, direct quote, he said felonious.

[Mark Joseph Stern]

Yes, again. And, you know, know, the funny thing is we should just pause here to note. Louisiana, if it wants, can choose to arrest people who use abortion pills. It hasn't done so yet, but it may be going down that path. It does have laws that prohibit the dispensation of abortion pills within its state lines. Louisiana has many tools at its disposal to persecute people who participate in reproductive freedom. What Louisiana cannot do is reach across its state lines into New York and somehow prosecute or find a provider in a completely different state who is engaging in conduct that is completely legal under those state laws. And that's what Alito just can't wrap his head around. And it seems like he really thought Dobbs was gonna end abortion in red states, just like forever. And he is sore as hell that he did not successfully strip more people of their fundamental rights.

[Madiba Denny]

Yeah, he is shocked and appalled. It was honestly pretty funny. Like, what do you mean there are more abortions happening now than there were before. And it sort of gives the game away a bit that this was never actually about restor freedom to the states. Like, he likes to claim it was about just ending abortion. And so that he didn't do that, he's now he's upset.

[Mark Joseph Stern]

Yeah. And he's all about Louisiana's state sovereignty and Louisiana's rights to, you know, enact these laws. What about New York sovereignty? What about New York's right to enact these laws? New York gets to have a say in this as well, I had thought. But like you said, Madiba totally gives away the game. He hates pro choice laws and wants to find a way to block them. And he loves anti abortion laws and he will just bend and twist and contort the law to make them do their work of ending abortion, which he really thought was going to happen with Dobbs.

[Madiba Denny]

Something I thought was interesting about him getting real mad about shield laws in blue states was that he portrays them as something untoward, something nefarious targeting red states. He doesn't see it as protecting the doctors in those states to continue prescribing medicine. He's like, they are trying to mess with red states. They're trying to undermine red states abilities to ban abortion, which is not, not really what's happening. They're just trying to make sure that they can allow their doctors in the states to continue providing services to their patients, wherever those patients may be. There's not ulterior motives, but he makes it seem like there's this, you know, grand evil scheme going on. Again, it uses like very comical language. He says scheme, he says this operation, you know, this enterprise, all of these criminal esque language. And again, it's really jarring to me that I'm like, we've had this conversation before, like 150 odd years ago. The same kind of things. We was talking about the shield laws. These are so similar to the personal liberty laws back in the 1800s when states said we're not going to return black people who escaped from slave states. And here again we have some of these states and we have some of these justices and right wing judges endorsing this idea that unfree states should be able to reach out into free states and impose their laws on everyone else and impose unfreedom across the whole country. They're trying to say that free states should not be able to assist other people fleeing injustice. These are the kind of reasons why we have the 14th amendment. This is exactly the kind of thing that the Constitution should prevent. But because the right wing movement has been dismantling the Reconstruction Amendments, that leaves us where we are today instead.

[Mark Joseph Stern]

Right? And Alito's view, red states have absolute freedom to persecute abortion providers and patients, but blue states have absolutely no authority to protect abortion providers and patients. It's just so obvious what he's doing here. And by the way, we should give a shout out to the law professors who really devised and pressed the shield laws in state legislatures after Dobbs. David Cohen, Rachel Ray Boucher and Greer Donnelly. Also writers sometimes for Slate. For anyone who says that law professors don't matter and law review articles don't matter, I raise you these three because Sam Alito is actively mad at them for their work, which is having very serious and important real world implications. So finally, just real quick, Madiba, I mean the dark cloud looming over all this is that Trump's FDA is currently undertaking this review of mifepristone at the behest of anti abortion advocates. And reportedly the agency has delayed that review till after the 2026 midterms because, in fact, reproductive rights are very popular. But the FDA is now facing this intense pressure from anti abortion politicians like Josh Hawley and anti abortion activists who say they need to restrict mifepristone app. It seems like that's gonna happen. The FDA is going to crack down on telehealth mifepristone, but after the midterms and the 5th Circuit just jumped the gun on that plan that the Trump administration had laid out and gotten ahead of it. And so is the Supreme Court's order best understood in some way as like, the savvier conservative justices just kind of restoring the original plan to let the Trump administration slow walk this crackdown on mifepristone until after the election?

[Madiba Denny]

Yeah, we see this so much, not just in the case of abortion, but across the far right agenda. We see the Supreme Court actively advancing that agenda, but trying to do so in a way that it thinks it might sustain its power, both the power of the court and the power of that right wing movement. They don't want to set up conditions where there might be too big a backlash. And so it's kind of funny when you see these ideologues, whether in the lower courts or sometimes, you know, in Congress, or just like other activists being too eager and just going ham and the court trying to get them to pump the brakes just a little bit. We're seeing that here. And I feel like we just saw this with all the fallout from Calais, where the Supreme Court's Republican majority straight up is like, it's totally okay to racially gerrymander as long as you don't say it's racially gerrymandering and you call it partisan gerrymandering instead. And then you get something like Republican legislators being like, I'm so excited to racially gerrymander. This is awesome. And it's like you got. There was one thing I said not to do, like, please just keep it. Keep it together.

[Mark Joseph Stern]

Follow the playbook. John Roberts knows what he's doing, right? Listen to him. And you can be as racist and as horrible on reproductive freedom and as anti LGBTQ as you want. You just have to do it the right way.

[Madiba Denny]

That's always been Roberts concern. Just do it the right way. He's like, please don't make me look bad, but let me do all of these bad things.

[Mark Joseph Stern]

Well, thank you Madiba so much for talking through this with me.

[Madiba Denny]

Thanks. Till next time.

[Mark Joseph Stern]

I look forward to chat chatting again in the plus bonus episode, where we will be treating listeners to a staged reading of some utterly excoriating quotes from a federal judge who has just had it with lying DOJ lawyers and also with a fellow judge who is facilitating their chicanery. We'll also discuss the canary in the coal mine in Florida where the state Attorney General is trying to outlaw surrogacy and take a child away from its two dads, claiming that the baby has been enslaved in violation of the 13th Amendment, using law that would also make adoption unconstitutional. That bonus episode will be available right after this one for our Slate plus members. You can sign up to [e-mail] amicusplus Next, Dahlia Lithwick talks to Elise Hogue about voting, abortion, free speech, and the tendency among progressives and Democrats to over index on lawyering and under index on explaining what the hell is going on. It's a great, good one. That's next.

[Dahlia Lithwick]

Today's show is brought to you by Vanguard. To all the financial advisors listening, let's talk bonds for a minute. Capturing value in fixed income is not easy. Bond markets are massive, murky. And let's be real. Lots of firms throw a couple flashy funds your way and call it a day. But not Vanguard. Vanguard bonds are institutional quality. And institutional quality isn't just a tagline, it's a commitment to your company clients. It means top grade products across the board. Lots of firms love to highlight their star portfolio managers like it's all about that one brilliant mind making the magic happen. Vanguard's philosophy is a little different. They believe the best active strategies shouldn't be locked away with one person. They should be shared across the team. That way, every client benefits from the collective brainpower, not just one individual's take. So if you're looking to give your clients consistent results year in and year, you're out. Go see the record for [e-mail] audio. That's vanguard.com audio all investing is subject to risk. Vanguard Marketing Corporation Distributor Lately I've been trying to be super intentional about the clothes I buy and wear every day, and I just prefer to wear a few quality pieces that feel effortless and comfortable and still let me look kind of put together. Quints has been my go to on this front. Their favorite fabrics feel elevated, the fits are flattering. Everything just works without me having to give it another thought. Quince makes it easy to refresh your everyday this spring with pieces that feel as good as they look. They use premium materials like 100% European linen, organic cotton, ultra soft denim and their lightweight linen pants. Dresses and tops start at $30 and they are effortless, breathable and easy to wear on repeat. Everything at Quint's is priced 50 to 80% percent less than similar brands. They work directly with ethical factories and cut out the middlemen. So you're paying for quality and craftsmanship, not brand markup. I'm just going to tell you that I've been wearing three different colored Mongolian cashmere boat neck sweaters on rotation pretty much all winter and spring. They just get softer and cozier with every single wearing. And they're also weirdly the perfect thickness for layering. And every time I think about the price I've paid for wear, I am genuinely gobsmacked. Refresh your everyday with luxury you'll actually use. Head to quint.comamicus for free shipping on your order and 365 day returns. Now available in Canada too. That's Q-U-I-N-C-E.comamigus for free shipping and 365 day returns. Quince.com I don't know about you, but I like to keep my money where I can see it. Unfortunately, traditional big wireless carriers also seem to like keeping my money as well. After years of overpaying for wireless, it is okay to get fed up with crazy high wireless bills, bogus fees and free perks that actually cost more in the long run and to switch to Mint Mobile. Stop overpaying for wireless just because that's how it's always been. Mint Moving it exists purely to fix that. Mint Mobile is here to rescue you with premium wireless plans starting at 15 bucks a month. All plans come with high speed data and unlimited talk and text delivered on the nation's largest 5G network. Bring your own phone and your own phone number. Activate with an ESIM in minutes and start saving immediately. No long term contracts, no hassle. Ditch overpriced wireless and get three months of premium wireless service from Mint Mobile for 15 bucks a month. If I had needed this product, this is definitely what I would use. If you like your money, Mint Mobile is for you. Shop [e-mail] amicus that's mintmobile.com amicus upfront payment of $45 for 3 month 5 gigabyte plan required equivalent to $15 a month new customer offer for first 3 months only, then full price plan options available, taxes and fees, extra See Mint Mobile for details. There are some Supreme Court decisions whose devastating results take years to manifest themselves. And then there are others that are instantly awful and then become worse with every passing day. Trump v. United States, that was the presidential immunity decision from 2024, is a recent example. Example Louisiana Vikele is another, with snowballing, disastrous effects playing out daily across the South. In just two short weeks since that decision came down, we've spent a lot of time on deep constitutional and statutory analysis. That, after all, is what we do here. But what we also aim to do on this show is step back and try to make meaning out of the individual decisions from 1 1st street as they are catapulted out into the world, into your world, world into mine. Joining me this week on Amicus is one of the best meaning makers out there, Elise Hogue. She's going to help us pick a path through what has to be done after Calais and how to respond to the 5th Circuit's power grab regarding the future of medication abortion. She's also going to explain, I think, or help me understand why these reproductive rights battles in America have always been and continue to be democracy battles even though we don't recognize them as such. Elise Hogue is the co founder and CEO of Catalyst for American Futures and a senior Fellow at New America. She is co founder of the Speaking with American Men Project and she spent nearly a decade as president and CEO of NARAL Pro Choice America. Her book and podcast, the Lie that Binds, was a chillingly prescient look at the post World War II efforts by conservatives to take over the machinery of government and the levers of democracy in order to strip women of autonomy, equality and control. I guess I also want to note that Elise is one of those people in my own life who when I have run out of road on understanding what is happening, she's always quick to stop me and point me in the right direction. So, just as a purely personal matter, Elise, welcome back to Amicus. But also just thank you for all the ways that you see the big picture when I sometimes get lost in the pointillist, especially despair.

[Elise Hogue]

Oh Dalia, it's great to be back on Amicus. I love the podcast and you help me make big picture meanings. So it's mutual admiration over here.

[Dahlia Lithwick]

So Elise, I want to start with Kelly if we could, because as I just noted, this has been an earthquake and the aftershocks are at least as big in the States as the initial convulsion was at the court. We are looking at a redistricting frenzy across the South. Alabama, Georgia, Tennessee, Louisiana, Virginia, that could quite literally draw black congresspeople off the map. Over the next couple of cycles, there are gonna be lawsuits. Stipulated stays are gonna be pinging up and down at the Supreme Court. And the court is already, as we're gonna talk about, deeply involved. But I just wanna ask you, not as a lawyer, but as somebody who thinks deeply about democracy in our time, what do you even make of Kelly?

[Elise Hogue]

Look, as you said, my book really looked at the arc over 50 years of the right using abortion as a mechanism for what we would call an authoritarian agenda to consolidate power in a meaningful way for a very narrow agenda that served very few people. Dobbs was a piece of that. And I know we'll get to abortion politics a little bit later, but I wrote in the book that they could not do. Do that on abortion alone because reproductive freedom actually is a relatively popular concept in this country. And so they simultaneously engaged in multiple strategies. One was court capture. We've talked about that a lot. You know, a mentor of mine once taught me that the left treats the courts as a pathway to justice and the right treats the courts as a pathway to power. They started doing that 50 years ago with great success. The second was, was good old propaganda, what we now call a lot of mis and disinformation. Recognizing that leading with stories that are visceral, that actually grab people by the gut, and then backfilling with strategies that people might not agree with, but they've already captured them, was a crucial second strategy. And as we wrote in the book, the third strategy was voter disenfranchisement. Because if you hold positions that are not popular, you have to find ways to shield yourself from that accountability. And that means fewer people being able to vote. So Calais is one in a very, very long line of decisions that was teed up after they felt like they had the bulletproof majority of the court to enact this strategy where they could hold supreme control. Control and yet insulate themselves from the consequences of it. Unfortunately, it was not surprising. I think one of the challenges for me that I'm really trying to sort through is that there was not a huge visceral response from the public given the gravity of the decision. And we really need to understand why if we're going to do better.

[Dahlia Lithwick]

I mean, that's exactly my next question, because I have heard you say in several places that, yes, yes, this was soul crushing, and the avid court watchers and the people who think around corners in terms of elections are appropriately alarmed. But the messaging, the narrative piece of this was pretty thin. And I would almost say here we are not even two weeks out and there's a sense that the messaging is over. And so I guess I want to talk about that sense that you just articulated, Elise, that progressives, Democrats, somehow gave away, lost the narrative around redistricting and voting rights in the Supreme Court. And I guess the follow on to that is what would it take to seize that narrative now when it almost feels like it's too late to start telling a new story? Story.

[Elise Hogue]

Oh yeah, now you're getting to some of my favorite topics. So I am a big fan of you lawyers. I also believe that Democrats and progressives have over indexed on legal strategies and under indexed on narrative and organizing for our values. And I think the right, while they have a very, very, very hefty legal infrastructure, it almost always follows their narrative investments. And nowhere was that more apparent than in the Calais response. And I think we started this conversation, Dalia, because we had some friends asking us why aren't people in the streets? But this was actually after the Virginia decision came down, quashing the redistricting there, that was done in response to Republican redistricting. And, and there are a lot of answers to that. But one was we didn't have a narrative arc that positioned Virginia in a through line with previous decisions like the earthquake of Kelly. So let me break that down a little bit more because I think we can really get to brass tacks on this. If you look at the social media analysis in the days following Calais, you'll see a few things. First of all, conversations about King Charles NBA playoffs by far trumping any of the conversations about the voting rights decision. That's okay. Normal people actually want normal information. But what the right has been really good at is tagging onto those cultural accounts and cultural moments and getting their messaging in the left has not in even immediately after Calais, there was a lot of chatter on the left about the decision, but there was more chatter about Hegseth. Right. And so part of that to me is we are so invested in knocking out people who we see as dangerous and evil because there's a lot of reason to believe that, that we're losing threat of the values. And when you unpack how each side was talking about K, we led with the evisceration of Section 2 and that really actually, for what it's worth, worked well with the base because the base actually was primed to understand this as a step in the road. It worked with no one else. What the Right. Led with was actually, this is a victory for equality. We don't live in a country where people want to be separated by Right. Race. It was actually infuriating to me because I think, you know, I identify as a universalist. I actually believe we advance the values of democracy when we lean into shared interest and common humanity. They actually claimed universalist values in the decision. In the majority opinion, they claimed universalist values. And the left, the progressives, the democrats, after Section 2 got into. Politicians shouldn't pick their votes. Voters, you know, that's not a good thing. And I think most people agree with that. But you had a very high barrier of entry to that conversation. It was legalese, then a process argument, which most people agreed with. And then values were way down below the right, had that inverted pyramid. Values, values, values. They were able to message to their base and people who weren't paying that much attention, but we're like, oh, that makes common sense. We don't want a country where people are segregated by race. Right, right. And so they won the day, and people were like, well, that seems pretty good. And then you have the Virginia decision, and that was just like crickets, right? Because you already have people who think gerrymandering is bad, redistricting is bad. It's a political arms race. And because we hadn't set the table on Calais, there was absolutely no foundation upon which to be build the messaging war for the Virginia decision.

[Dahlia Lithwick]

So I'm having, like, nine vectors of PTSD listening to you, and I don't even know quite where to start. But just a couple of quick thoughts. One, as you're talking, I'm thinking this is exactly how we failed after the affirmative action decision came down. Right? Which was also coded as, like, what a great and beautiful land that doesn't require, you know, us to take race into account. And how that completely flipped the narrative, and we didn't avail ourselves of the opportunity to explain what it was. I'm also just thinking about, you know, we had Janae Nelson from LDF on the show hours after the decision came down. And I think her sense of this is we got so caught up in the legalese and also in the big horse race picture, right? Like, that we're gonna talk about, you know, it's okay, we'll do it in California. That's all right. We're doing it. You know, that. That, like, you lose, as you're calling it, values. You're losing the stakes of what has happened. Because we love a horse race in the media. The last thing I'm thinking about just as you're talking, and I know you and I have had this conversation, like, privately multiple times since Dobbs, is that then you get this weird hiccup where people, for a brief moment, want to talk about actual democracy reform, like, they want to talk about structural reform. And there are these moments where everybody gets drunk on their conversations about, let's add seats to the court. You know, we should really think about, like, a malapportioned Senate. Today's the day to think about the Electoral College. But then it goes away. You know, it has the shortest tail, that conversation. And I think part of what you're saying, Elise, correct me if I'm wrong, is that the water that the other side swims in is that conversation, like, how do we take the court? How do we ensure that voter suppression, you know, is a daily, you know, voter ID fight that we will take year in, year out, we will fight about voter id and that we have these sort of peripatetic, like, rage reactions to bad decisions that default into, like, kind of fanciful conversations about, therefore we're adding seats to the court right now. I mean, it's such a weird arc. And if this is what you're saying, I agree. The narrative kind of careens from crickets to now we're going to talk about democracy reform for exactly seven minutes, and then we'll go back to Peter Takes of.

[Elise Hogue]

Yeah, and then it's a technocratic response to a spiritual crisis. And we never win when we offer that sort of asymmetry in response. You know, again, I think there are many, many lawyers who do the Lord's work. We have a progressive legal infrastructure that is funded at twentyfold to the narrative and organizing infrastructure. And, you know, I know the day this podcast comes out, Latasha Brown from Black Voters Matters has been working with a big coalition to organize a march in Selma. It's growing, and that's fantastic. That is the work that we need to focus on and the work that needs to be rewarded, because what it does is show a visceral picture of what we've lost and what we're losing. And I'm not even necessarily saying that we could have had that response the day after Calais, although we probably could have. But, you know, people who are doing that work have to sort of beg, borrow, and steal to get enough money to do it. At the same time that we've got, you know, massive, massive dollars going into legal infrastructure where we know at the very end of the day, the odds are stacked against us because of the court capture that they've engaged in. So we just need a little bit of a rebalancing in the kind of work that we're doing. And again, I don't think we shouldn't have a conversation about structural reform. But if we skip the step of making real what's being lost, and absolutely for the people who are losing it, but also what's being lost in terms of the ideals that are the foundation of our country that I do find are commonly held values. You know, I know we were going to get to this later, but one of the things I am really excited about in the field work that I'm doing, the conversations I'm having all over the country, is that a there are a lot of people out there who don't identify, actually don't particularly like Democrats or Republicans, don't identify at all as one or the other, but very strongly still believe that the founders got a bunch of things right that they're proud to be Americans and we should keep working towards the promise that was in the Constitution. And one of those things is equal to equality. Right. And so when we can actually lead with, hey, this is a blow to equality, this is a blow to the idea that someday in this country of all countries, all people will be created equal, I think we're going to get a lot more traction and a lot more people caring than when we're making these technocratic process arguments that skip that step of winning over people's hurts.

[Dahlia Lithwick]

And I really want to talk about it. You're slightly violating the cardinal rule, which is we have to save the optimism for the last third of the conversation

[Elise Hogue]

just so that people stay in my pessimism.

[Dahlia Lithwick]

Yeah, well, no, I don't want you to do that. We have a trajectory here and it means one more beat on mifepristone, if that's okay. Let's turn to your prior wheelhouse because as much as this conservative supermajority on the Roberts Court loves to curtail the voting rights, it also really loves to pull the rug out from under reproductive rights with all sorts of promises of states rights and judicial humility. And this week, the medication abortion drug mifepristone is back at the court. And as we are recording this conversation, we have the Supreme Court batting around the fate of the Fifth Circuit's utterly unprincipled nationwide ruling on mifepristone via telehealth and mail. Last week, SCOTUS put the 5th Circuit's ruling on hold, allowing the drug to be dispensed this week, we've got another pause until Thursday. This is all, of course, completely insane. So I thought first we'd break down that fifth Circuit ruling. We had a three judge panel in that wildly untethered fifth Circuit way, effectively reimposing a requirement that physicians can prescribe mifepristone only after examining patients in person. And it did this on a nationwide basis, even though the high court told us just about this time last year that nationwide injunctions are bad. Mifepristone is the first of two drugs used in chemical abortions and its use has surged since Dobbs. Can you give us your big picture read of how all of this was completely foreordained long before Matthew Kaczmarek, before Dobbs, before Esther.

[Elise Hogue]

Mifepristone scares the hell out of the anti choice movement almost more than anything else. Because remember, we talked about that propaganda that they're reliant on, it punctures through decades of their storytelling about what abortion is. I hesitate to repeat the negative, but you can imagine, you've heard it. Bloody fetuses, women cut open. And it turns out when people hear, oh, you can take a pill and the whole pregnancy goes away, it in one second cuts through all of their BS about what the vast majority of abortions in this country actually are, how they present medically. Right? And so it's always been super scary to them and they've worked really, really hard to make sure that it never actually saturated rates the country in a meaningful way. The other thing that has threatened the anti choice movement about mifepristone is they have gained tremendous traction through their protests at clinics. And if you can get mifepristone from a regular doctor that's not at a separate abortion clinic or through the mail, where the heck are they going to go? Protest, right? So this has been a thing on their radar screen for a very long time. And by way, the, the way we don't need to get too deep into it, but they were pretty mad at Trump and his FDA pick for not actually reversing the Biden rule that made it acceptable to get mifepristone through the mail. Now, one of the things that I find so fascinating and that we should be screaming from the high heavens, but we're not, is that, you know, the Republicans were like the dog that caught the car on abortion. They realized super fast that they were absolutely on the wrong side of politics, politics on this, that Dobbs could prove to be a massive liability for them. And so because they are very good at pivoting their messaging. You had about a bajillion elected Republicans and candidates running for office post Dobbs saying, no, no, no, no, I was never about banning abortion. I was about state's rights. You know, and federalism has a long standing tradition and it's part of freedom and it's part of what makes America, which actually a lot of people agree with. Right now you've got a case where literally one state is saying, not only do I not want this to happen in my state, but I'm going to assert my state's rights to make sure it happens in no other states. So it's like this inverse federalism that they have no shame in invoking. And it gets back to the core values that we saw really create the massive momentum in sport of abortion rights, which is freedom versus control. This is fundamentally. And this gets back to democracy versus authoritarianism. The fight against abortion, the fight for gender oppression and reproductive oppression has always been part and brain parcel of an authoritarian agenda. And we have won. We have seen the politics and the culture on our side. When we claim that mantle of we are fighting for freedom, they are fighting for control over you, over your family and oppression. In the wake of the Miffy case, all of that went out the window. I mean, I cannot tell you how depressing it was for me to read all of this guidance that was coming from groups I love, by the way, who I know are in the trenches fighting the family fight every single day. There was no mention of freedom. It was all this process argument.

[Dahlia Lithwick]

Again, just to clarify, the process argument is what now?

[Elise Hogue]

Well, the process argument in the wake of the Miffy was literally trying to bring people up to speed of how this happened. Like the first two pages are, here's everything that happened over the last few years that you need to know before you can get to the main thing that's happening. And, and that's like a real challenge to hold people's attention. And also, I would argue very strenuously, not necessary lead with this is a fight for freedom or control. Louisiana is asking to control not just the women and families in their state, but in every single state in this United States of America. No matter who you voted for, for governor, no matter who you voted for in your state legislature. Legislature, you are now reporting to Louisiana state legislature. That is a very easy thing for people to understand. And we really didn't get there or it took a really long time to get there. So I think that that's a key challenge in the storytelling. What are they going to do about it. I think this is a real question. I think it's really interesting happening in the lead up to the election. I mean, the Republicans are sort of in this spin cycle where they're caught between a base that quite honestly is not going to stop until they have eviscerated any politician that has not fought for a national abortion ban, no matter in what form it comes, right? Whether it's stopping the sort of telemedicine and mail order of abortion drugs or, you know, another manifestation. And like Republicans who, when they have to face their voters, know that they're on the wrong side of this issue, especially when it's framed in the freedom versus control question. So I think that's our job is to actually surface those values, force electeds to choose, because that's where we win, that's where we gain momentum and that's the opportunity here.

[Dahlia Lithwick]

We're going to pause to hear from some of our sponsors. Are you numb to it yet? This wild ride of life that we are living AI is coming for our jobs. Geopolitical changes are killing historical alliances. The market is bouncing around like a yo yo. And it's no wonder so many of us are hunkering down, saving and looking for ways to protect our futures. Now, one way you may have forgotten about is through through life insurance. You've heard of life insurance, but did you know it's cheaper than you think? The younger you are, the cheaper it is, like double the price if you wait to buy a decade from now. And that's why it's worth looking for a life insurance policy today with Selectquote if you're new to life insurance, you're not alone. Thankfully, selectquote for over 40 years has helped more than 2 million Americans understand their options and get the coverage they need. Over 700 billion in coverage and counting. As a broker, their mission is simple to find you the right insurance policy at the best price. Selectquote takes the guesswork out of finding the right life insurance policy. You don't have to sort through dozens of confusing options on your own. Instead, one of their licensed agents will find the right policy at the right price for you. Comparing plans from trusted top rated insurance companies to find a policy that fits your health, your lifestyle, your budget, and they work for you for free. Life insurance is never cheaper than it is today. Get the right life insurance for you for less and save more than [e-mail] Amicus save more than 50% on term life [e-mail] Amicus today to get started. That's SelectQuote.com Amicus.

[Sponsor Voice]

Pool days call for cookouts and lots of laundry. This Memorial Day at Lowe's, save $80 on a Char Broil Performance Series 4 burner gas grill. Now just $199. Plus get up to 45% off. Select major appliances to keep dishes, clothes and food fresh. Having fun in the sun is easy with us in your corner. Our best lineup is here at Lowe's Valley through 5:27, while supplies last selection varies by location. See associate or lowe's.com for details.

[Dahlia Lithwick]

And we're back with Elise Hogue. You're so well connected to the reproductive justice groups. And my sense is this last two weeks with the Miffy uncertainty feels a little bit different from SB8 in Texas. It feels a little different from Dobbs. It feels a little different from the fruit first Miffy ruling in that I'm not getting the sense that folks are, like, caught off guard. I'm getting the sense that they knew this was coming. There's been a pretty quick pivot to misoprostol, which is the second drug in the cocktail. They're sort of activated and organized around. There's a workaround, the workaround works, it's available, and here you go. In other words, I don't, I don't get the sense that there's, like, a lot of struggling to explain the plan this time. I think there's been real clarity on what happens now. Am I overstating that post, Dobbs?

[Elise Hogue]

There was a. I don't want to call it a split because that sounds like acrimonious, but there was a dedication of resources, let's put it that way, within the broader movement. And one, one big set of groups, thank goodness, said we are in trouble. Our job is to continue to find a way to provide access to as many people who need abortion care as possible. And they have really done their job right. They have been there at every turn in every state trying to figure out delivery systems. And that's amazing. And that for what it's worth, I find it really interesting that every time somebody says, in fact, the number of abortions has gone up since Dobbs, like, that is first of all the worst thing that antis can hear, but also, like, great. Like, that just means people are actually getting care finally who were not actually getting care before. And so. So I think you're right that there's a whole set of actors who are like, that's not my fight. Because my fight is to make sure that people get what they need. There's another set of actors who this does need to be their fight. Right. The idea that, like the politics on this need to be challenged so that we do have laws in this land that hold and, you know, elected leaders who understand that their constituents really do want a legal framework that allows them the freedom to continue to make their own decisions that actually needs to be salient in a way that, like it may be come November, and I certainly hope it will be because I don't think when the antis are working in this way that the electricity has gone out of this issue at the ballot box. Like you go to California voters and say, you know, man, Louisiana is about to tell you unless we have federal action that you can't actually access abortion in this state through, you know, telemed because they don't want it. I think that does have power. So I, I would really like to see that beefed up. I would really like again for us to fight on the core values and I think we win when we do.

[Dahlia Lithwick]

Elise, you've worked as an advisor with Media Matters for a very long time and they just scored a big, big win in a case that actually ended up going all the way to a federal Appeals court in D.C. can you remind me what this lawsuit was about and maybe describe why this particular piece of litigation in a frothing sea of endless lawsuits in America, America serves as a bellwether for you personally on issues of free speech and media and government control and creeping authoritarianism.

[Elise Hogue]

Yeah, you know, again, I go back to first principles on all of the projects that I work on. You know, are we fighting for freedom and are we undercutting one of the core pillars of their operation, which is, you know, voter disenfranchisement, court capture and, or the propaganda arm? That means that they're winning on the values. And so Media Matters for America has been around since 2004, serves as a media accountability group, has really done a very good job of fact checking right wing media before it gets into what we, quote, call mainstream media to prevent, prevent the spread of right wing narratives that are not grounded in fact, they've been very, very effective at their job, which has made them a target, quite honestly. And this has been a long and winding road. I will spare you the details, but the case at hand was after Trump was elected in 2024, building on some threats they had made about Media Matters. You know, Media Matters Matters has made enemies on the right for a long time by challenging them. The ftc, the Federal Trade Commission, opened up an investigation into Media Matters that really could only be called a witch hunt. I mean, the investigation was so broad, so wide ranging, so far back to the past, like from 2019 on, that you couldn't justify it through any discrete lens that the FTC was trying to put on it. It was designed a to try and silence Media Matters, but also to make an example of Media Matters so that everyone else in the sort of free speech civil society space would be like, whoa, I do not want those people on me like that. You know, so Media Matter sued the ftc. This is really, really important piece of the puzzle. A lot of other groups have been like, nope, don't come after me. What do you need? Media Matters turned around and said, absolutely not. The buck stops here. We're suing the FTC so that they cannot continue this investigation. The Federal District Court found for Media Matters, saying this was clearly a retaliatory measure. The FTC appealed to the D.C. circuit Court and it was argued in April by, I think, one of our mutual favorite lawyers, Nathaniel Zielinski from the Washington Litigation Group. It is really important to understand that since the title of the pod is Amicus, the amicus briefs in support of Media Matters were from the right, the center, and the left. This was an unbelievable invasion that even the right wing groups who were not behind the suit were like, whoa, if turnabout is fair play and there's another administration and they're coming after me, I don't want that to happen. And so going into the court, there was a very strong argument and the government could not defend its case in the court at all. It was like a shellacking, quite honestly. They were so sure that they were going to get a negative ruling that they asked to actually withdraw the investigation before the ruling came down. And, you know, without getting too much in the weeds, Media Matters said, only if you agree to some things, like not bringing it back, if we say okay, and a couple other things. And they agreed to a settlement last week. That is really quite something in this environment that we're living in. And the reason it was, was so important to me to support this work is because free speech, obviously, I mean, it's almost, you know, a cliche at this point, but when you've got an administration who is really reliant on this sort of authoritarian grip on the media, allowing them to weaponize their own government agencies, to shut down critics like, that has to be a red line. Line. It absolutely has to be a red line. But the other reason is because Media Matters. And the president, Angelo Caruson really wanted to fight, really understands the psychology of this government as bullies. And the only way to beat a bully is to stand up and look. That takes a lot of resources, it takes a lot of money. And, and it was successful because what we've seen is rolling over and hoping they go away really just creates conditions for them to go after more and more and more people. So I'm very, very proud of this. I think there will be wide ranging effects. I think the FTC will be very careful about how it attempts investigations of civil society groups again. And I think it's really important to celebrate victims victories when we're living in really dark times.

[Dahlia Lithwick]

One of the reasons we really wanted to talk about the case, as I said, is I don't think it got enough attention, maybe going back to your theory that like we all just want to like, you know, punch Pete Hegseth recreationally as like our job in the media. And so I think something like this gets lost a little bit in the shuffle. But I think one of the reasons, and you've made this so plain, is that we keep seeing government agencies abusing their own power and terrorizing entities that are doing good and important work and that the impulse to buckle, to take the deal, to slink away, it is a rational impulse when you're terrified. And I love this lawsuit for exactly the reasons you just said, Elise. It's a template for courage and it's a template a little bit for trusting that the courts will have your back if you have a meritorious case and a template for or they will blink. And we are seeing that and forcing them to blink. As you're saying, it is not a costless enterprise, but buckling is not costless either. And so I'm so impressed with this litigation, I want to end with this. And I'm going to apologize for quoting you to you, Elise Hogue, but this is something you wrote in February as part of Catalysts for American Futures. Out of many one writings on American universalism and you've talked already on the show about that Universalism as a core value is, you know, one of the enduring things that you turn to this is what you wrote, quote, america's experiment in multiracial democracy has made it a unique and crucially important experiment in what unites and what divides, end quote. And I, I want you to help us land on that seam of the idea that that which divides us is also and can always be a source for what could unite us. The idea that people in the country, as you said earlier, are actually deeply committed to some basic principles of constitutional democracy. They have strong embodied views on what it means to adhere to the founding to documents. They are committed to the repair where it's gone off the rails. And so I'd love just for you to tell me in granular detail why you wrote that line and what it means and then what it means to be having a conversation right now about something that, you know, we're feeling something slipping through our fingers. But what you are saying is it's not too late.

[Elise Hogue]

I really don't believe it's too late. And I get my inspiration from hundreds of conversations I'm having all over the country right now as part of our work for Catalyst for American Futures. And I wrote that because, first of all, there is no experiment like the American experiment. There just isn't. We have so many different kinds of people here with such vibrant cultures and, and such incredible stories of how they got here, and they all ended up here, some by force, some by desire, some under duress, some with hope in their hearts. But they all believe that America must live up to its original promise in order for there to be hope for the world. Quite honestly, I don't want to be too grandiose, but that's what I hear. And the authoritarians thrive on divisions. I find it to be an absolutely common experience when you say to people, politicians, the media, corporations, they want to keep us divided because it consolidates their own power. And no matter whether I'm in Janesville, Wisconsin or Nashville, Tennessee, everyone's like, yes, that is very obvious. And they don't believe they have to give up their own identity to stand in community with their neighbors and their countrymen. But they see that we are actively being divided. And I think there is this fight for the definition of universalism that we saw in Calais to bring it full circle. And it's a false fight, right? Like the perversion of that concept to justify a deep, deeply anti democratic decision in Calais is one in a long line of concessions that progressives have made around value based language freedom, flag country patriotism, family universalism. These are all deeply embedded values in liberal democracy. And we've allowed them to be bastard by an authoritarian right who knows that by taking away the power of language, they can take away the power of the people. And when we reclaim that and saying we can all be who we want to be and live in a universalist society, and that is in fact what was embedded in the words of the Constitution and we have a charge to make that live today in a meaningful way and encompass all of the progress that we have made. Not allow those words to be weaponized for democratic backsliding. We seize power. And everywhere I go, the thing that people start an agreement on are those fundamentals. Equality, freedom, opportunity, checks and balances, rule of law, law. Every American in every community that I've talked to agrees on that. So let's start from that place and hold the people accountable who are eviscerating those terms to mean something that they want it to mean that actually hurts most of us.

[Dahlia Lithwick]

It's such an elegant answer to the despair that is, you know, scorching us post Calais. Right, Elise? Because what I keep thinking is there is nothing more embodied in a sense than the act of voting. And the act of voting putting your body like at a polling place and corporeally standing with other. I mean, it is one of the unlike court reform, it is a thing that people can do and they can commit themselves to helping other people do it. And I love what you're saying because what you're saying thing is it must be a core American value, not an abstraction. That voting has to be free and fair. I mean, that has to be among the key ideas that we should be messaging. That's not a thing to give up on post Calais. It is a thing that people, even if they don't fully know why they want to fight for, it, will be willing to fight for. And that's what I think you're saying is that is the mission in some sense post Calais is to kind of take that very Tim Snydery, you know, corporeal, embodied, physical act of voting for American values and spread the word that that is the thing that most people want and should be able to do. Yeah.

[Elise Hogue]

Yes. And the way that we tend to talk about voting is in terms of outcomes and the outcome is secondary. Secondary to the act of participation that makes us fundamentally bound together in American values. And the more that we talk about voting as because you're going to get a Democrat or because you're going to get a Republican, the more we dilute the power of that one day where we all come together as Americans and say we demand a government that is responsive to us, that is of our design. And that's where the beauty lies.

[Dahlia Lithwick]

Elise Hogue is the co founder and CEO of Catalyst for American Futures and a Senior Fellow at New America. She's co founder of the Speaking with American Men Project and she spent nearly a decade as president and CEO of NARAL Pro Choice America. I'M going to commend to you again. Her book and podcast the Life that Binds it almost perfectly predicted the moment we find ourselves in right now. Elise, I knew I would feel better, but I didn't know why. But that is your superpower, so keep on doing that thing. Thank you so much for being with us.

[Elise Hogue]

Thank you, Dalia.

[Mark Joseph Stern]

That's all for this episode, but Amicus plus members, I can't wait to see you in the bonus Boom Boom Room of Dreams. Madiba Denny of Balls and Strikes will join me to unpack all the legal news we couldn't cram into the main show. It's a kind of jurisprudential unboxing, if you will. On today's Amicus plus bonus episode, we are talking about a chilling outgrowth of anti abortion extremism in Florida, an attempt to ban surrogacy that could wind up outlawing adoption as well, and exactly how and why a federal judge in Rhode island flames Justice Department lawyers trying to hunt down private information about minors who receive gender affirming care while also taking a shot at the notorious Texas judge who facilitated their illegal inquisition. Visit slate.com amicusplus to join the joyful ranks of Plusketeers. By joining, you support our work and you get loads of extras plus ad free listening and paywall free [e-mail] you can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you right now. We'll see you there. Thanks so much for listening and thank you so much for your letters and questions. Please keep them coming. We are reachable by [e-mail] you can find [e-mail] amicuspodcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. Sara Burningham is Amicus's senior producer. Our producer is Sophie Summergrad. Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.

[Dahlia Lithwick]

Foreign.

[Sponsor Voice]

A home is full of surprises. Some wonderful, some not so much. And when something breaks, it can feel like the whole day unravels. That's why Homeserve exists. For as little as 4.99amonth, you'll always have someone to call a trusted professional ready to help, bringing peace of mind to four and a half million homeowners nationwide. For plans Starting at just 40amonth, go to homeserve.com that's homeserve.com not available everywhere. Most plans range between 4.99 to 11.99amonth. Your first year terms apply.

[Elise Hogue]

Uncovered Repairs hey honey, it's Mom. Did you know if we switch to Verizon, we can get four phones for $0 plus four lines for $25 a line? Call me back me again. That's just $100 a month for four lines on unlimited welcome plus four phones. No trade in needed. Call me. It's mom. America's best Network Verizon. That's the one we're talking about.

[Mark Joseph Stern]

Send you text America's Best Network based on root metrics Best overall mobile network

[Sponsor Voice]

performance us second half 2025 four new lines on a limited welcome and autopay. See verizon.com for details.