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The Political Scene | The New Yorker
Abortion Heads Back to the Supreme Court
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Abortion Heads Back to the Supreme Court
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A
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B
In the category of rare good news, you bring good news, I bring the rare bit of good news.
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C
Never happens.
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B
Well, I was just going to say, has anybody ever seen anybody look as happy in politics as Joe Biden in Ireland at the. He looks like he just is like a golden retriever with his head out the window. He's happy everywhere he goes and he's.
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C
Taking selfies and everything right in front of everything. Yeah, he's found his people and they have found him.
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B
Exactly.
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D
Well, he did get in big trouble, though. He screwed up. Did you see the latest Biden gaffe? He was trying to talk about his cousin who's a rugby player for the national New Zealand team. But instead of referencing that team called the All Blacks, he referenced the Black and Tans, the notorious British military group that fought the IRA a century ago. And of course, in sports, Mad uk, this has been like huge, huge tabloid fodder.
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B
Details, details. Susan.
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D
Welcome to the Political Scene, a weekly discussion about the big questions in American politics. I'm. Hello, I'm Susan Glaser and I'm joined by my colleagues Evan Osnos and Jane Mayer. So it's been almost a year since the Supreme Court overturned Roe v. Wade. Now we're once again in a high stakes legal fight where abortion rights could be rolled back even further. As we stand Right now, 13 states have banned most abortions, with 11 of those states not even carving out exceptions for rape or incest. But in recent weeks, the battle has moved to an abortion pill, mifepristone, which patients can get through the mail. Not surprisingly, use was skyrocketing in the wake of the Dobbs decision. But now a federal judge in Texas has ruled that access must be curtailed. A competing judge on the west coast has said it must be available. In other words, this is headed right for the Supreme Court. But as everyone knows, conservative justices at the court form an anti abortion majority. So what will happen next? The stakes couldn't be higher. And American politics are already being reshaped by this new battle over abortion. So, Jane, let's start with this ruling from Texas Judge Matthew Kaczmarek just a week ago. How has he upended the law and the politics around this?
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C
Well, if you had to pick a word to define the ruling from Judge Matthew Kaczmarek, who is a federal district judge in Amarillo, Texas, I think that word would be radical. Basically, in every respect, this is an extreme decision that upsets the status quo in terms of women's access to reproductive rights and also in terms of just how the law works in this country. He's been nominated by Ruth Marcus at the Washington Post, who's a very astute legal observer, as the worst judge in America because of this ruling. And even the Fifth Circuit Court of Appeals, which is also extremely conservative, has not upheld every aspect of his decision because it was so far out. They've certainly upheld enough of it for people to say that this is still a very extreme challenge to reproductive rights in this country. But basically, what did he do? He ruled that the FDA did not have the power to regulate and make public mifepristone, a drug that is used in over half the abortions in America. The FDA's ruling goes back 20 years. There's 20 years of evidence that this drug is as safe as Tylenol or Viagra. But nonetheless, this judge, who's not a doctor, invalidated the FDA's decision and said that the drug was a danger and should not be distributed or available to consumers, even in states where abortion is legal in this country.
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D
Well, let's talk about that, because what's interesting is that there's not just this one judge's ruling, but now there's a competing judge's ruling on the west coast, And the liberal 9th Circuit has jurisdiction over that. So, Evan, it's almost like we have two different Americas emerging here in the wake of the Dobbs decision. What does it mean that there's a competing ruling from a competing federal judge? If you are the fda, what are you supposed to do? Do you just pick and choose which ruling to follow?
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B
I think there's good reason for people out there to be feeling like this is complicated because it is evolving every 48 hours. I mean, had one ruling, then you had another. So you have the net effect at the moment is that the U.S. 5th Circuit Court of Appeals has agreed to allow mifepristone to stay on the market, but with restrictions that make it less available to millions of people unless the Supreme Court intervenes. So the current status is that it is in this very sort of tenuous legal limbo, and everybody is now waiting for it ultimately to go to the Supreme Court. But I think to your point, Susan, it's actually a live matter whether or not the FDA will, can, should, must adhere to the ruling that came out of Texas. So this is where we're starting to get the real rubber meets the road moment in terms of how much can courts challenge or undermine the work of regulatory agencies, which is actually a larger issue than even the abortion pill, as we'll talk about today.
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D
Well, that's right. So, Jane, what are the prospects at the Supreme Court? I mean, it seemed that in the Dobbs decision, the Court very clearly was saying, well, we're going to throw the issue of abortion back to the states, which is why we have now this almost crazy patchwork quilt of different rules and regulations depending for women in America, where they live, what kind of access they do or don't have to abortion. So what does it mean at the Supreme Court? And now we're just kicking it right back to them. That seems almost to contradict the spirit of the Dobbs decision.
- [07:48]
C
Well, I mean, I think the thing you can say about the Dobbs decision is that it ended Roe v. Wade, but it certainly didn't end the abortion debate in this country. And in fact, because both sides, but particularly the anti abortion side, are going for not just half the cake, the whole cake. They want to completely ban abortions in this country. They believe abortion is murder, and they're not going to accept a patchwork any more than in the Civil War that half the country was going to be allowed slaves and half the country was going to be free. And not surprisingly, we're actually seeing some of the same lineup of the states here. It's sort of a dangerous sort of echo of the 1850s. You're seeing that the court is going to have to decide on national bans in this particular case. And there's also talk in Congress of trying to legislate national bans. So this has not ended the abortion debate by letting states decide things. And it never was going to. I mean, that was always, I think, a fig leaf really. But at any rate, we're now seeing an even angrier and I would say more divisive phase.
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D
But Jane, do you. It sounds like you're suggesting that you think the Supreme Court actually could uphold this ban on this abortion drug. Is that what you think is possible?
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C
You know, first of all, I'm not a lawyer and not a soothsayer, but I think that it's possible that this Supreme Court, the way this argument is shaped, is something that the Supreme Court is doubly sympathetic to. The conservative majority on the Supreme Court is an anti abortion majority. And it is also a majority of conservatives who have great skepticism about the so called regulatory state. They, on any number of issues having to do with environmental pollution, climate change, all kinds of regulations, they have sympathy for the argument that government is too big and regulates too much. And so, I mean, for those reasons, I think it's likely that they will find some part of this that they're sympathetic to. At the same time, it's such a radical challenge to the status quo in this country, I think it's hard for me to imagine that they'll go for it whole hog.
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D
Well, radical is really, you know, the word, especially when you're talking about the implications of beyond abortion and the idea that you could just challenge a federal agency's decision of 20 years. In some ways, it's interposing the judgment of this individual federal judge with that of America's public health agencies. And Evan, I was really struck by. There was this letter from more than 400 leaders in the pharmaceutical industry the other day condemning the decision from the Texas judge. I think for. For exactly this reason. How broad are the implications?
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B
Yeah, it was a fascinating indicator of the potential power of this because as you can guess, big Fortune 500 pharma companies don't tend to speak up on questions of abortion because as you can guess, they find it to be the kind of politics they're trying to avoid. But in this case, they spoke out very clearly what they said was, and I'm gonna read just a bit of it because I think it's really important, as they put it, a federal judge with no scientific training fundamentally undermined the bipartisan author granted by Congress to the Food and Drug Administration. What that means is that this could apply not only in the case of reproductive rights, which has tremendous impact immediately, but it could also be extended to things, as they put it, things like vaccines or ultimately insulin or other things that right now we might consider to be settled matters. But if you ended up in the future, let's say, with a case that tried to challenge using Covid vaccines or God forbid, another pandemic vaccine down the road, we can already anticipate there are going to be political fights around it. And if you have courts that are willing to essentially chuck out the sound science around it, that's very dangerous. So it was notable that a couple of the signers of this letter were Pfizer and Biogen, which after all, make the COVID vaccine.
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C
I mean, we in a way have already seen this. I mean, the prelude to this were the fights over masking. And it's part of really a 40 year fight that is the conservative movement's fight against the regulatory state, as they call it. And there's some very good work that's been done on this. Naomi Oreskes and Eric Conway have written books on it, articles on it, about the way that the anti science movement in some ways has its roots in this sort of anti government movement, all of which has been sort of nurtured on the far right in the country.
- [12:46]
B
You could actually draw a line all the way back to the efforts to try to protect tobacco against science. Totally. And that was one of the big insights that they identified. Just the idea of sort of challenging the science on its basis. I wonder if we could for a second, if I could just tap into sort of janeapedia again here on the. On the history and the law. I think, Jane, there's a really key detail in the Texas court's. There's a reference to the Comstock Act. I think we're gonna be hearing a lot about that. It's a law that goes back 150 years ago. What's the significance of it? What do you think the role is here?
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C
Just unbelievable. The Comstock Act, I mean, that is, you know, when you study American history, it's like one of those remarkable relics of the past. And you think, gosh, how could. It's like primogeniture or something. You know, it was passed in an era when women could not even vote. It's an anti vice law that was meant to the US Males from being used for transmitting what was called, you know, smut during that time. Anything pornography, but also anything that having to do with something that might have enabled a woman to have an abortion.
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B
So anything that was. I mean, any sort of equipment or any medication that could be sent through the mail is subject to this.
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C
Well, that's the argument of this judge in Texas and he has invoked the Comstock act, which nobody has thought was anything but in a sort of a dust heap and brushed it off. I mean, in a way, I think it's fascinating that this thing is coming to life because it signifies the extent to which the conservative movement is moving backwards in time. You're going back to 1873 to sort of bring America backwards and basically repeal a century and a half worth of legal progress.
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D
The political scene will be back in just a moment.
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B
America is changing and so is the world.
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C
But what's happening in America isn't just.
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B
A cause of global upheaval.
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C
It's also a symptom of disruption that's happening everywhere.
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B
I'm Asma Khalid in Washington D.C. i'm.
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C
Tristan Redman in London and this is the Global story.
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B
Every weekday we'll bring you a story from this intersection where the world and America meet.
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C
Listen on BBC.com or wherever you get your podcasts.
- [15:22]
D
Well, you know, it's interesting because this fight is in the courts right now, but it's also in the court of public opinion. And because Dobbs so explicitly essentially invited this kind of fight, it's likely to be our new normal, it seems to me, where we're again and again and again fighting. First in politics, then in state legislatures and then in the federal courts. And you know, that's exactly what we've seen happen over the last few weeks, right guys? I mean, we've had these, on the one hand, these court rulings and competing visions of what kind of reproductive rights should be available through the mail, but at the same time, we've had an incredible ferment in the political world. And again and again, what we're seeing is the voters are saying no to this across the country, even in red states, even in conservative states. We just had this very interesting election in the battleground state of Wisconsin with a state Supreme Court justice who made abortion rights the centerpiece of their campaign. Evan, what does that tell you about how far out on a limb are the anti abortion judges when it comes to what Americans think they want in this country.
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B
Well, it's quite clear when you look at any data on American attitudes that it's quite simple. I mean, Americans after the Dobbs decision and before were in the same place, which is that a majority of Americans believe that there should be access to abortion. That's just a fact. And since then, you've seen additional polling that has really emphasized how far out of step a lot of these decisions and a lot of these political positions are. I mean, just take as an illustration the behavior this week of Tim Scott, who's the latest entrance into the exploring the run for president game. And you saw him in total agony trying not to answer the question of where he is on abortion.
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C
Would you support a federal ban on abortions? I would simply say that the fact of the matter is when you look at the issue of abortion, one of the challenges that we have, we continue to go to the most restrictive conversations without broadening the scope and taking a look at the fact that I'm 100% pro life. I never walk away from that. But the truth of the matter is that when you look at the issues on abortion, I start with the very important conversation I had in a banking hearing when I was sitting in my office and listening to Jim.
- [17:43]
B
He knows that the politics on this are very bad for Republicans. They are wildly out of step with where the country is. And yet at this stage in the game, and I think we'll talk about this more, there are reasons why he is beholden to some of the people who are the gatekeepers ultimately to access to true power in Republican politics.
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D
Well, we talked about public opinion. I believe that the most recent Pew numbers, and they're borne out by other national polls, suggest it's really not even a close call. Right. Something like two thirds of Americans have support right now, abortion rights. And in fact, I believe that number's gone up, not down, in the wake of the Dobbs ruling, throwing out Roe versus Wade. So, Jane, we're also seeing this movement in state legislatures. It's not just politicians talking about it. They're actually taking votes on extremely restrictive new laws in many of these states. And of course, Florida was the big state that acted this week. That's significant in presidential politics because you have Ron DeSantis, the governor, who's going to end up running on it. But it's also significant for the women of Florida and the women of the South. Florida was a relative oasis of liberalization in the context of the South. And so it actually saw a pretty significant increase in the number of abortions in the year since Dobbs. So, Jane, what does it mean that the Florida state legislature voted on this very restrictive six weeks abortion ban? What does that mean?
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C
Well, I mean, I think it's an indication of what we're seeing in, you know, all over the country in red states, which is that the state legislatures, many of which have super majorities of Republicans thanks to gerrymandering, are implementing laws that are far, far more extreme than the voters in the states. They've got the power and they're running with it and unchecked really. There was a quote in the New York Times this week that said that there are no breaks on them anymore. And I think that's what we're seeing. And I think there was one particular essay I thought was terrific that came out recently in the New York Times by Tom Edsel and it quot the political scientist Theta Skalchpol, who talks about how there's basically a two step going on. It's between the state legislatures and the Supreme Court. The court has enabled the state legislatures to be wildly, unfairly gerrymandered along partisan lines so that they're really out of kilter with the population far more to the right than the voters are, and they are passing legislation that then is being upheld by the Supreme Court. So you have this kind of two step, it's a lock, as she put it, back and forth between the two. And critics are suggesting it's really an anti democratic situation, even almost an authoritarian situation, because it's beyond the recall of voters and the majority opinion in the country.
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B
And believe it or not, one of the Republicans who has actually one of the few Republicans who has come out and said clearly what a political liability this is is none other than Donald Trump, who actually said in a social media post early this year, he said, you know, this is the reason. Now, of course, he's exculpating himself from the reason why Republicans did poorly in the midterms. But he also said it is that the abortion issue, as he wrote, has been poorly handled by Republicans because he says it's out of step with where the country is.
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C
So of course, these are his judges.
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B
Of the ones that he attacked the.
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C
Court with in order to get elected. And that's the other side of the equation, which is why is this happening? Also because there's sort of a coalition of two groups that have made up the Republican Party for years and one is sort of corporate money and the other is the social conservatives. And this is what you need both parts in order for Republicans to win. And this is what the social conservatives want.
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D
Well, let's talk about the Republican politics of it, Evan, because Donald Trump, nothing has ever stopped him from both blasting something and taking credit for it.
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B
Right.
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D
Situational politics is going to dictate both strategies for him at the same time. You referenced Tim Scott squirming, but you now have Ron DeSantis running in this very hard right lane. Democrats think it's gonna be a weakness against him. What do you make of the emerging kind of Republican politics of this?
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B
Well, as Jane put it, I think this is so important that right now Ron DeSantis is running not in an election, he's running in a primary. Right. He's not even running Texas. But here at the point, what he is trying to do is appeal to these voters who are the most energized, the most impassioned, and let's be clear, also, he's running for the support of major donors. And when you look at who some of the funders are that have been behind this strategy of challenging the quote, unquote, administrative state, trying to undermine regulation, it's many of the same organizations and individuals that have also been behind trying to push this more extreme position on abortion. I mean, take for example, Leonard Leo, executive vice president of the Federalist Society. Federalist Society has donors like the Koch Industries, which has been fighting against climate change action. You've got the Sarah Scaife foundation, which is created by heirs of the Mellon oil fortune. So there is this way in which this. It's not just at the Supreme Court, which is what we often talk about when you see this emergence of a conservative bloc. It's really, there has been the assemblage of a full apparatus, a kind of full stack of conservative legal authority that runs. And you see it beginning in Texas, then it goes to the appellate court, and ultimately it gets to the Supreme Court. That's been one of the strategies about. How do you deal with the fact that you're promoting policies that are unpopular with voters? Well, you try to keep it as much as possible in the courts.
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D
But Jane, it's interesting, right, because those are sort of the big corporate or libertarian minded donors like the Kochs. It's the evangelical movement, the white evangelical movement in America that spent 40 years organizing itself and dedicating itself to this goal of overturning Roe v. Wade. What's their new goal and what should we look for, given that they're such a key, really the core of the Republican electorate? I believe there's something like more than 70% of white Christian evangelicals who voted for Donald Trump twice. And it seems like that abortion decision was one of the main things that they were looking for. So what are they looking for now?
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C
Well, you're right that they were the single most sort of faithful block behind Donald Trump, amazingly, given his character flaws. And they did get what they wanted in overturning Roe versus Wade. But I actually spoke to one of the leaders of the anti abortion movement just this week, a young woman named Lila Rose who runs a group called Live Action, and they are nowhere near satisfied. I mean, this is the thing you have to understand. Overturning Roe was just step number one. Somebody like Lila Rose, who is a very devout Catholic, believes in fetal personhood, which is what much of the anti abortion movement believes in. They want to see laws that ban abortion across the board from the first minute of conception, basically. They absolutely want to see national legislation. She said, I don't want to see half measures. She doesn't want to see the kinds of proposals that Lindsey Graham has put forward, which is sort of a, I think a ban of it, about 15 or 16 weeks, something like that, after that long gestation period. She wants to see a complete ban. She regards it as murder and there's no sort of half measure acceptable.
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D
Well, let's talk about the politics of that, though. First of all, how possible is that? It took them many decades to organize to get the overturn of Roe v. Wade. Evan, what are Democrats doing to stop this? They seem to think of abortion at the moment as a kind of a winning political issue. But I'm not really clear what their agenda is at the national level for restoring reproductive rights, or are they simply going to concede the idea that it's going to be in blue states that women have access to this and in red states where they don't?
- [26:19]
B
Well, you saw right after the Dobbs decision that Joe Biden in particular came out and said, in effect, that this is now one of the major issues that is at the heart of the Democratic Party's priorities now. Now, the blunt fact is that he personally is on slightly shaky ground with this because historically he is a devout Catholic. He is, if you go back to his early years in the Senate, he would say that he was personally opposed to abortion, opposed federal funding for it for a long time. But he's also, in the end, somebody who does see himself as very much representing the Democratic Party's broad based opposition to efforts to impair reproductive rights. So what you've seen is that in the 2022 midterm elections. There was a clear recognition that talking about protecting abortion rights was essential to the Democratic Party's success. That made that front and center. And, in fact, they did it against a lot of the sort of conventional wisdom. They should be talking about economics. And there were results for it. They were actually much more successful in that election than predictions had been. But I think in the current moment now it's become more difficult because you've got parts of the Democratic Party who are calling for the FDA to ignore that ruling. That's something that AOC and others have been calling for.
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D
It is the justices themselves, through the deeply partisan and unfounded nature of these rulings, that are undermining their own enforcement.
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B
In California, you see somebody like California Governor Gavin Newsom, who is saying that they're going to create an emergency, emergency stockpile of abortion pills in Washington State. You also see the governor taking action. But this is not yet an issue that you see the Biden administration sort of staking its identity to, because I think what they see is that the politics, in effect, are gaining momentum on their own, and they don't want to awaken a sleeping giant on the right if they turn this into an issue that is about Joe Biden.
- [28:28]
C
I think it's a mistake, in the view of many progressive groups anyway, that the Biden administration seems to be kind of taking a back seat in this and not leading on it, because I think my sense is that the politics have flipped and that what was a good issue for the Republican Party for a long time, just pushing back against Roe, has now become a very powerful motivating issue for the Democratic Party for young voters, for women voters, for progressive voters. And that there's a sense that the Biden administration is uneasy with this topic. It kind of. It bothers them. He's just not comfortable being out on the hustings on this particular issue. And it's frustrating for a lot of women who want to see him lead on.
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D
Yeah.
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B
I think it's not inaccurate to say that it's not his natural political home. And it's part of the reason why you see this slightly inhibited response. And I think there's gonna be Democrats who are calling for much more vigorous action on his part.
- [29:37]
D
Well, what about the young voter factor? I mean, it seems like reproductive rights is an example among many of them. Climate change, gun control, LGBTQ rights, where around the country, Republicans seem more and more out of step with the positions of a new generation. And I'm curious, especially as we're heading into 2024 presidential election year, do you think that that could actually make a difference at the national level? So far we've seen evidence of the potency of this abortion rights issue, but largely they've been in state elections where abortion was either explicitly on the ballot or the consequences of the position, like this state Supreme Court justice in Wisconsin, very clearly tied to reproductive rights. So, you know, I'm still not sold on whether this is going to be an actual national voting issue or not, or whether it's going to be more targeted. What do you guys think?
- [30:30]
C
I mean, I think everywhere where it has been a state issue, it has been a tremendous gain for the Democrats. So the party obviously is going to take a look at how it can have a referendum in every state that will allow it or somehow put it on the, you know, out in front of voters in 2024. I mean, the problem for Democrats is that even if they come out in droves on this issue, the Republican Party has really mastered sort of the machinery of holding counter majoritarian power. And so how it will really turn out in 2024 kind of depends on whether the will of the voters is heard.
- [31:04]
B
Yeah, I mean, we're all resisting the temptation to use the dreaded cliche, it all depends on turnout. But the truth is, is that that's we find ourselves in this moment where the Republican Party is sort of actively sprinting away from the issues that young voters care most about, whether it's guns, climate change, reproductive rights. Just on issue after issue, they are marching in the opposite direction. And you only hear the rarest of voices among Republicans who sort of acknowledge that. There's Representative Nancy Mace of South Carolina who said, I'm reading here, she says we have over the last nine months, not shown compassion towards women. This is one of those issues that I've tried to lean on as someone who's pro life and just have some common sense. Common sense is not a term that you hear a whole ton about at the highest levels of the Republican Party. And I think that is gonna, in a sense, it's up to young voters to say, okay, we care enough to come out and vote again against it.
- [31:54]
D
Well, Jane, you mentioned counter majoritarian. I think the one obvious consequence that you're seeing here in Washington, right, is people saying, this is it. Finally, when we got to get rid of the filibuster in the Senate, talk about an undemocratic situation where a minority of the Senate essentially can hold that body hostage. They've been reluctant to make this change because both parties have seen it in their interest. You know, control of the Senate has gone back and forth in a way that has meant they both have had a vested interest in keeping this filibuster going. Is it possible that abortion is finally the thing that breaks the filibuster?
- [32:34]
C
I think you're not going to see the filibuster removed until you have one party control of the trifecta of the White House and both houses of Congress, both the Senate and the House of Representatives. It's going to take that. And I think, I think you're right that one of the first issues that would then be addressed would be some kind of national policy on abortion, depending on which party is in control. I think that is hanging up in the future over us. All it takes to get rid of the filibuster is a simple majority. So thatbutbut I think we're not going to see it until we see one party rule of the White House and both Houses.
- [33:21]
D
So basically, the stakes for 2024 just got higher.
- [33:24]
B
Again, if that was even possible. But it's entirely true.
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D
This has been the political scene. I'm Susan Glaser and we had production assistance today from Alex d' Elia and Dan Richards. Stephen Valentino is our executive producer and our theme music is by Alison Layton Brown. Thank you so much for listening and we'll see you next week.
- [33:54]
C
Right now, we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlemagne, the God, and so many more. That's all in the New Yorker Radio Hour, wherever you listen to podcasts from prx.