Podcast Summary: Abortion Heads Back to the Supreme Court

Podcast: The Political Scene | The New Yorker
Date: April 15, 2023
Host/Panelists: Susan Glasser, Jane Mayer, Evan Osnos
Main Theme:
A deep dive into the renewed legal and political battles over abortion in the US, focusing on the imminent Supreme Court case concerning the abortion pill mifepristone, the broader implications for the regulatory state, and how these battles are re-shaping American politics.

Main Topics and Structure

1. The Legal Chaos Following the Dobbs Decision

[02:23 – 07:14]

• Backdrop:
  Nearly a year after the Supreme Court overturned Roe v. Wade, abortion rights are facing new threats, especially regarding medication abortion via mifepristone.
• Texas and Competing Rulings:
  Judge Matthew Kaczmarek in Texas ruled that the FDA’s approval of mifepristone be revoked, citing safety concerns despite 20 years of evidence. Contrarily, a West Coast judge ordered continued access, creating a legal standoff.
• Patchwork Reality:
  “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?” — Susan Glasser [05:41]
• Legal Uncertainty:
  The FDA, patients, and providers face confusion over which ruling prevails pending expected Supreme Court intervention.
• Supreme Court's Role:
  Although the Dobbs decision claimed to return abortion to the states, Jane Mayer notes the anti-abortion movement’s goal: "They want to completely ban abortions in this country... We're actually seeing some of the same lineup of the states here. It's sort of a dangerous echo of the 1850s." [07:47]

2. The Radicalism of the Texas Ruling and the Attack on the Regulatory State

[03:54 – 14:44]

• Judge Kaczmarek’s Decision:
  Described as "radical" and "extreme" by Jane Mayer [03:54], upending both reproductive rights and how federal law and agencies, especially the FDA, operate.
• Quote:
  “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.” — Jane Mayer [04:44]
• Broader Implications:
  Over 400 pharmaceutical executives condemned the Texas ruling as an attack on the FDA’s congressional authority, noting:
  “A federal judge with no scientific training fundamentally undermined the bipartisan authority granted by Congress to the Food and Drug Administration.” — Evan Osnos [10:48]
• Slippery Slope for Science:
  Worries arise that court challenges could extend to vaccines, insulin, and other regulated drugs, undermining settled science.
• Historical Echoes:
  Reference to the "regulatory state” and the conservative pushback dating back to anti-tobacco science denial.
  “You could draw a line all the way back to efforts to try to protect tobacco against science.” — Evan Osnos [12:45]

3. The Resurrection of the Comstock Act

[13:21 – 14:44]

• Legal Zombie:
  The 1873 Comstock Act, a long-dormant anti-vice law, is invoked by the Texas judge, potentially banning mailing abortion pills.
• Quote:
  “It was passed in an era when women could not even vote. It's an anti-vice law... anything that might have enabled a woman to have an abortion.” — Jane Mayer [13:21]
• Implication:
  Illustrates how far conservatives are willing to go in rolling back modern rights, “bringing America backwards and basically repealing a century and a half worth of legal progress.” — Jane Mayer [14:02]

4. Abortion Policy and Public Opinion

[15:22 – 22:19]

• Voters’ Response:
  Despite judicial trends, US voters—even in red states—consistently support abortion rights. The Wisconsin Supreme Court election is cited as an example.
• Quote:
  “A majority of Americans believe that there should be access to abortion. That's just a fact.” — Evan Osnos [16:36]
• Abortion as GOP Political Liability:
  Republicans, including Donald Trump, voice concern that hardline abortion stances lose votes:
  “The abortion issue... has been poorly handled by Republicans because he says it's out of step with where the country is.” — Evan Osnos paraphrasing Trump [20:45]
• Gerrymandering and State Laws:
  Conservative-controlled state legislatures, empowered by gerrymandering, pass bans far more restrictive than what voters desire; the Supreme Court’s role in enabling this “two-step” is called “almost an authoritarian situation.” — Jane Mayer [19:13]

5. Conservative Coalition Tactics and the Road Ahead

[21:47 – 25:46]

• Behind the Scenes:
  The conservative legal movement, led by groups like the Federalist Society and funded by major rightwing donors (e.g., Koch Industries, Scaife Foundation), choreography litigation to ensure policies unpopular with voters are pushed through the courts.
• Religious Right Goals:
  The evangelical base seeks not just state-level bans but a national ban recognizing fetal personhood from the moment of conception.
• Quote:
  “[Lila Rose] regards it as murder and there's no sort of half measure acceptable.” — Jane Mayer [24:26]

6. Democrats’ Response and Political Opportunities

[25:46 – 33:20]

• Democratic Messaging:
  While abortion is a galvanizing issue (especially post-Dobbs), the Biden administration is cautious, not fully “staking its identity” to the fight.
  “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.” — Jane Mayer [28:28]
• State Action:
  Proactive steps by blue states—like creating stockpiles of abortion pills (California, Washington)—are noted as an alternative front.
• Turnout and Young Voters:
  The panel agrees the key will be whether young voters and women, highly motivated by abortion rights, can overcome GOP control mechanisms like gerrymandering and the filibuster.
• Quote:
  “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.” — Evan Osnos [31:04]
• Breaking the Filibuster?
  Many see a national battle over the Senate filibuster as the next great procedural fight, with abortion a possible catalyst.

Notable Quotes & Moments

• On the Patchwork of Abortion Laws:
  “It's sort of a dangerous sort of echo of the 1850s.” — Jane Mayer [07:47]
• On Regulatory Challenges:
  “How much can courts challenge or undermine the work of regulatory agencies, which is actually a larger issue than even the abortion pill.” — Evan Osnos [06:12]
• On Political Reality:
  “It's quite clear when you look at any data on American attitudes... a majority of Americans believe that there should be access to abortion. That's just a fact.” — Evan Osnos [16:36]
• On the Future of Federal Abortion Bans:
  “Overturning Roe was just step number one... They want to see laws that ban abortion across the board from the first minute of conception.” — Jane Mayer [24:26]
• On Democratic Hesitation:
  “There's a sense that the Biden administration is uneasy with this topic... It's frustrating for a lot of women who want to see him lead on.” — Jane Mayer [28:28]
• On the Power Imbalance:
  “The Republican Party has really mastered sort of the machinery of holding counter majoritarian power.” — Jane Mayer [30:29]

Key Timestamps

• Texas ruling and the new battle over abortion pills: [02:23 – 04:44]
• Implications for the FDA and regulatory state: [06:12 – 12:45]
• Resurrection of the Comstock Act: [13:21 – 14:44]
• Public opinion and state-level political ramifications: [15:22 – 22:19]
• Conservative coalition and religious right strategy: [21:47 – 25:46]
• Democratic response and 2024 outlook: [25:46 – 33:20]

Overall Takeaways

• The legal fight over mifepristone is not just about abortion but about the authority of regulatory agencies and the future of science-based policy.
• The anti-abortion movement is pursuing a national agenda with support from both religious conservatives and corporate funders who generally oppose “big government.”
• State legislatures, thanks to gerrymandering and judicial enablement, are passing bans far more extreme than most voters want.
• Democrats are motivated but cautious in messaging, risking a lack of leadership on the issue despite public support.
• The struggle over abortion rights is likely to further intensify leading up to the 2024 election, with control of the filibuster and potentially national rights at stake.

This summary captures core arguments, history, and political context from the episode, providing clarity and crucial detail for listeners and non-listeners alike.