So Many Sexual and Reproductive Health Court Cases, So Little Time

A variety of court cases, which have the ability to severely restrict, limit, and criminalize sexual and reproductive health care—such as abortion— are circulating throughout the U.S. Jessica Mason Pieklo, Senior Vice President and Executive Editor at Rewire News Group and co-host of Rewire News Group's podcast Boom! Lawyered, sits down to talk with us about current court cases around the country and what these cases may mean for protecting basic SRHR care. 

The pillars of these court cases include that of miscarriage criminalization, abortion ban exceptions, criminalizing medical providers, placing care limitations on emergency rooms, state abortion bans, and access to mifepristone; the decisions that come from these cases may have erect more barriers to care, spread additional stigma, and create legal concerns for patients and providers. 

Links from this episode

Jessica Mason Pieklo on Twitter
Rewire.News on Twitter
Rewire.News on Facebook
SCOTUS Is Likely to Decide if Abortion Is Health Care
Idaho's Reproductive Health Crisis and Christian Nationalism
Ohio Woman Who Miscarried Faces Charge That She Abused Corpse
Kate Cox sought an abortion in Texas. A court said no because she didn’t show her life was in danger

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Hi, rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all, happy New Year! I hope everybody had wonderful holidays. I had a wonderful time in Wisconsin with my mom. I got to spend 10 days with her, and it was wonderful. Lots of merry-making, tree decorating, lots of good food, and so, so, so much baking was to be had. I, you know, I talk about this here. I do a lot of baking and so I post pictures and so everybody wants baked goodies when I come home. So, I had to do baking to share with family. I had to take my mom's extended family. We all get together for Christmas Eve and it's all divvied up of what people bring, and people wanted me to bring bread, so I brought sour sourdough, two loaves of sourdough and a pumpernickel. And then everybody took it home. So, then my mom wanted me to make her more sourdough, so we had to do that. And then she wanted a bunch of bagels for her freezer and English muffins for her freezer. So, I made so, so many batches of various bagels and multiple batches of sourdough English muffins for her. And y'all, I got all baked out [chuckles], like it was exhausting. I don't want to look at another baked good for a while. That said, I'll probably make something this weekend, you know, it happens. But it was a lot of fun and I was able to really disconnect from all the things and really take a step back and not be following all of the news on social media or just really all of the news in general. And just take a deep breath and have some quiet time, do a bunch of fun, fluffy reading. It was pretty nice to just disconnect from all the things and just have some downtime and then come and jump back into the 2024 grind. I hope I am now rejuvenated and ready to fresh, whatever fresh hell 2024 is going to dish out. And I think that is like the perfect segue into this week's interview. I'm so excited. I have the always fantastic Jessica Mason Pieklo with Rewire News Group on and she is also the host of the amazing podcast, Boom, Lawyered with Imani Gandy. Y'all, if you're not listening to that podcast, make sure to check it out. That is where I get all of my legal repro reporting, because again, I'm not a lawyer, but they are. And they can really break it down and make it make sense to me and I love it. And so, I'm so excited to have Jess on, and we are talking about some of the various repro or abortion related court cases that have been working through the court system. And y'all, like, there are so many happening we had to narrow down the list, otherwise the episode would've been like 10 hours long. So, we talked about four that are going on right now, and it's a wonderful conversation. So, I hope you enjoy my interview with Jess. Hi Jess! Thank you so much for being here today.

Jessica: Oh, thank you so much for having me back. It's always a pleasure.

Jennie: So, I am so excited to have you on because there's maybe, like, a thing or two happening around repro in the courts right now.

Jessica: Really, truly. It used to be, you know, we've been…I’ve been on the show a couple times. We've talked about abortion and repro in the courts, and there was a running joke where anytime I got in an airplane, the Supreme Court would do something around abortion. And so, I just would like to start off by apologizing for going on medical leave for most of the month of December, because it apparently torpedoed a lot of [laughs] abortion news happening. The silver lining is of course that I get to show up and chat with you and talk about it with your listeners. So, that's the good news, I guess.

Jennie: Okay, so like, before I forget, let's actually do introductions. Jess, would you like to introduce yourself and include your pronouns?

Jessica: Oh my gosh. You mean people don't just know by the time of my voice? Absolutely. Absolutely. Hi, everybody. I am Jess Pieklo. I use she/her pronouns, and I'm SVP and executive editor at Rewire News Group. We are the nation's only nonprofit media organization dedicated exclusively to covering reproductive health rights and sexual justice issues. And I'm also the co-host of the podcast, Boom, Lawyered with the very impressive Imani Gandy.

Jennie: And y'all, if you are not listening to Boom, Lawyered, you're really missing out. That is where I go to get all of my legal repro stuff. Like, I am not a legal person, so Jess and Imani are definitely the people who make sure I know all the things.

Jessica: Thank you for that. Yeah, we try to help guide folks who had the good sense not to go to law school [laughs].

Jennie: Okay. So, like we said, like, normally I have you come on to talk about like a thing, maybe two things. And I feel like we had to curate the list this time because there were, like, other repro related cases we could talk about, but we narrowed it down to four, y'all. Sorry.

Jessica: Truly.

Jennie: Okay. So, let's start with the one that I feel like has maybe gotten a little less attention and really should be getting a ton of attention. And that's Brittany Watts. Do you wanna talk a little bit about what's happening there?

Jessica: Yeah, absolutely. And thank you. I think- I do really think it's important to lead with Brittany Watts, given all the repro news, because in some ways the Brittany Watts story is a story that could have happened before the Dobbs decision as well. And I think that that's really an important context to sort of lead with. So, let's talk about Brittany. She's an Ohio woman who currently has a case- a Black woman before an Ohio grand jury for claims of abuse of a corpse. And this is a woman who miscarried at home and had presented to the hospital on two different occasions and went home and completed a miscarriage at home, went back to the hospital having some additional bleeding and her placenta still intact—as is frequent and common when folks miscarry at home—and through a turn of events, including mandatory reporting laws, she has found herself swept up in what prosecutors are saying is a prosecution where their hands are tied. But let's be honest, folks, that is just not absolutely the case. There is discretion that law enforcement and prosecutors have here in bringing her case. And so, we can dig into this a little bit more, right? This is very much a situation where I think we have medical negligence and let's- how can I say it? Folks just, like, not understanding how reproductive systems and processes work coming head-to-head with medical racism and criminal justice racism in our system. So, folks who have experienced a miscarriage may find some of this conversation a little difficult, but I think talking about some of the details are really important. When you have a miscarriage at home, you bleed a lot. And you know, Brittany Watts was later in her pregnancy, and this was a [inaudible] pregnancy. This wasn't a situation by all accounts, is what we've seen where, you know there was ambiguity around it. Not that that would change it, but I think, you know, as we're talking about the details and the narratives, that's important. Heavy bleeding. When you are in a situation like that, most folks go to the bathroom and most folks sit on a toilet, and most folks end up delivering the products of conception that way. And it's a long process. It can take days, and that's what Brittany was experiencing. And law enforcement went and fished those remains out of her toilet and are now contemplating felony charges against her.

Jennie: It's so horrifying to think like you have a miscarriage, which having been days is traumatic, and then you're faced with the court system instead of support and help. Like, that is just horrifying.

Jessica: It really is. And I think, you know I've read some of the comments from law enforcement who went to Watson's residence after she was at the hospital and said, well, she put the remains in the toilet, you know, as though they're looking for criminal intent as opposed to just not having a) understanding about how these processes like biologically happen to begin with. And then two, a modicum of empathy that you just described here, right? Like an understanding that in fact, Watts is a victim in this whole situation. And it's a story of system failures. When folks have a positive pregnancy test, that does not mean that we then owe the state a healthy baby. And what Ohio in its prosecution is saying actually is that you do. And that should be terrifying because again, many pregnancies and miscarriage, many miscarriages complete at home, and when we have abortion bans on the books that prevent things like D and C procedures for example, or heartbeat bans that tie providers hands from being able to provide care people until expiration of fetal heart tones, we'll see more and more Brittany Watts.

Jennie: So frustrating. And this is all just so frustrating because again, you said this could have happened before Dobbs and I fully expect we're gonna see more of this. This is definitely a case to keep your eye on and see what happens.

Jessica: There's the woman who I- whose name literally just escaped me. I'll come to me in like two minutes when we're talking about another case, I'm sure who's Brittney Poolaw who's in there. It's, who is in Oklahoma, who is currently serving a prison sentence related to a miscarriage of a non-viable pregnancy. And so, to your point, yes, those are the prosecutions and the criminal activities that we're seeing already, and this, you know, an abortion ban didn't need to be on the books for Ohio prosecutors to go after Watts, but, you know, here we are. While Ohio voters had just, you know, very robustly said, "hey, we are interested in protecting abortion rights and access at a state level and constitutionally." Prosecutors don't seem to care and they don't seem to be connecting the dots between the harm that abortion bans and even the confusion around abortion access while those bans are being debated and the actual real lives and people who, you know, have the capacity to carry pregnancies to term and then have something go wrong in them. Pregnancy is complicated. It does not need to be legislated.

Jennie: Okay. So, I feel like we could talk so much more about this one, but y'all four cases, we need to talk about.

Jessica: Four.

Jennie: So, let's turn to the next one, which is Kate Cox out of Texas.

Jessica: Mm-hmm.

Jennie: Let's talk a little bit about that case and what happened there.

Jessica: So, Kate Cox, I think, is a really good example of the hopes that folks had in the post-Dobbs world, that there would be some empathy that the exceptions to abortion bans would have some meaning. And what we quickly have learned through the Kate Cox story is that neither of those things are true. So, Kate Cox is a good person, I think, for the optics of national abortion groups to have out there in terms of the face of the impact of some of these really restrictive abortion bans. And we can talk about that. She's absolutely in that sense, sort of a mere opposite to how the press has reported and responded to this compared to Britney Watts. So, Kate Cox is a mother, she's a white woman, she's blonde. She was pregnant with a wanted pregnancy and found out that her pregnancy had a lethal fetal diagnosis, Trisomy 18, was devastated and thought that she could—with that diagnosis and the risk that it posed to her life—fit within Texas's very narrow exception to its abortion ban. The trigger ban that went in effect after the six week ban had already been in the books when Dobbs came down and quickly found out that that was not the caseA court, she petitioned a court in her own, which is a brave thing to do in this day and age, truly to get access to abortion. And a lower court said she could. And Paxton, Attorney General Paxton appealed and took the matter all the way to the Texas Supreme Court, which seemed indignant to have to rule on it, and then issued a terrible ruling that functionally would not have allowed Kate Cox to access the care that she needed anyway. So, we have two very different stories emerging in a post-Dobbs landscape, both of which show us that people who have the capacity to be pregnant are really at the whims and mercy of the state. And that is not a place where folks who have the full protection of the constitution should find themselves. So, when we talk about Dobbs really devaluing pregnant people to second-class constitutional citizens, this is what that means, you know? Kate Cox has been the face a lot of outrage around Texas abortion bans, and I think that it sparked a good conversation around how meaningless health and safety exceptions really are. But unfortunately, I worry that as we're seeing with the EMTALA cases, which we'll talk in a little bit as well, conservatives don't care, and folks who support abortion rights and access are gonna have to grapple with that reality. And I think adjust our strategy accordingly, because appealing to folks because of our humanity isn't working.

Jennie: This is like one of those, like, the bar is, like, in hell. Like, I come on like so basic of, like, the pregnancy was non-viable, like...

Jessica: Mm-hmm.

Jennie: -what are we fighting over?

Jessica: Here's what really makes me mad about this. I mean everything makes you mad-

Jennie: All of it.

Jessica: -about this, right? But the Texas Supreme Court did something and we see it also with the Fifth Circuit in the EMTALA decision that we're gonna talk about in a little bit. And I anticipate when one of the cases that we're not gonna talk about, which is the class action lawsuit of people who filed in Texas trying to get understanding of the exceptions there, we're gonna see a lot of chin stroking from the judges. And that's exactly what we saw in the Texas Supreme Court. And I mentioned that they were very indignant. And this is what I mean by it, because I realize I'm kind of all over the place. The Texas Supreme Court said, "hey, look, this should not be the kind of question that the courts answered." They were like, "how dare you make us decide the fate of this person's abortion." You know, because basically they said the reality is if Kate Cox's in a medical emergency, then there's not time to petition to ask a court whether or not she could have the abortion that she needs, right? Like, emergency sort of speaks to itself, but that's not the case as everybody understands how these things play out, right? Like, we just were talking about Brittany Watts experiencing a multi-day miscarriage that could have led to sepsis, a whole host of other problems, emergency care at that point. Is that enough? Who knows? And doctors, especially in Texas, are faced with the possibility of life in prison if Ken Paxton is unhappy about the care that they delivered, ie. If they perform an abortion in any circumstance, basically, is what Paxton said. So, what are people to do? This is actually the very role, then, that the courts are required to serve. And if the justices and other judges have a problem with it, then I think the right answer is to go back and tell the legislature, do your job, and to issue rulings that make them do that, right? If they don't wanna be deciding abortion access on a case-by-case basis, give the legislature a ruling that they have to work with to change that, right? Like, they have the power to do that. You know, the fifth circuit in its EMTALA decision was like, we don't really know if abortion should ever be considered healthcare, and that's not a decision for us to make. No, it's a decision for you to make. You're the fucking courts.

Jennie: Well, I mean, I was gonna do EMTALA last, but this clearly is like-

Jessica: Sorry!

Jennie: No, no, no. This clearly is like the same conversation, right?

Jessica: It very much is, yeah.

Jennie: With the Texas Supreme Court being like, "hey, if it was an emergency, you would've had the abortion because it was an emergency." And now you have these EMTALA cases, and what, like, they just said, "well, actually no." So...

Jessica: Right.

Jennie: Let's talk about it. First, maybe we should start like a little bit back of: what is EMTALA? And then we can talk about the cases.

Jessica: Absolutely. So, the thing that I think will tie all of these three cases together is the effort by the conservative movement, particularly the conservative legal movement, to really flip the understanding of who's a patient when it comes to OBGYN care here. And they're really trying to erase out the pregnant person as the patient and color in the developing pregnancy from zygote to fetus as the quote-unquote "patient." And so, with that idea, let's talk about EMTALA. EMTALA is a federal law, the Emergency Medical Treatment and Active Labor Act that directs hospitals that receive federal funding to stabilize patients that show up in their emergency rooms, right? You can't just go through patient dumping. And this is in response to something that was actually happening, thanks to the Reagan administration when we deregulated a lot of the mental health facilities and folks were just sort of, like, thrown onto the streets. And hospitals were like, meh, not our problem. Congress stepped in and passed a federal law that said, actually in certain instances, it is, and you can't just let people go without care. So, at its baseline, it regulates emergency medical standards that says functionally stabilize patients. After the Dobbs decision, so, shortly after the Dobbs decision—that was June, 2022, July, you know, a couple weeks later—the Department of Health and Human Services through the Biden administration issued a guidance, a reminder to folks that said, “hey, we understand that many of you have new abortion bans on the books because Dobbs released a wave of trigger bans." In Texas, for example, in Idaho is another one—we'll talk about that. "Those bans don't override federal law, including EMTALA, which means that if you have a patient who needs stabilizing care, including an abortion, you have to provide it." That's the basis of fights that could very well be the next real huge, huge Supreme Court fight if it gets there before the mife case, which we're also gonna talk about. So, so you can imagine the conservatives didn't like this, and in Texas, they marched right into the federal court that you would expect them to march into and file a lawsuit and say, we don't wanna do this. Basically the gist of it was, "you can't make me" to the federal government. And the courts in that area have largely gone along. Now, there's Idaho. Idaho also has a ban on [inaudible], Idaho's been doing all sorts of nonsense. In fact, over at Rewire News Group, Garnett Henderson did a reporting deep dive into Idaho as sort of a canary in the coal mine for access and democracy issues. People should really check it out. It happened that all of this stuff was going on while she was there doing the reporting. Well, in Idaho, the Biden administration sued and told hospitals to make sure that you are not screwing around on your provision of emergency care. And that case has been bouncing around and is about to be heard by the full ninth circuit later this month—January 23rd, actually. So, as the landscape stands right now, we have one federal appeals court decision from the Fifth Circuit that says, EMTALA does not override the Texas ban on abortions with that very, very, very narrow exception that we were just talking about in Kate Cox's case. Well, okay, but let's unpack that. Kate Cox was in a medical emergency. Kate Cox needed an abortion. Kate Cox couldn't get it because the Texas Court said, well, it was an emergency, the doctors would've given it to you! Listeners, if you feel like you're in the upside down right now, it's because we are. This is a logic loop that the courts are hoping folks don't catch on. But I mean, we have to talk about it. They're setting up that, that sort of like, you know, loop where we'll never be able to crack through. Nothing's ever an emergency. You know, the fifth Circuit court of appeals talks about EMTALA not dealing with elective abortions. Why is this bad faith? Well, an elective abortion, your listeners may or may not know, usually just means ones that scheduled. It's not like, oh, hey, you know what? I got a few hours to kill. Let's go get an abortion. That's not what you're talking about in this case, right? Like, Kate Cox would have been categorized as an elective abortion. Why? Because it's a procedure that the hospitals and clinics need to schedule ahead of time, not an emergent as in all hands on deck, a patient is coding and we're responding to it right this second. But that is where the conservative courts are taking us, which is every patient is gonna have to code before it's okay for care.

Jennie: So, it gets back to the, like, are you dead enough to get healthcare? And that is wild.

Jessica: It's wild and to go into the way back machine for listeners, maybe they remember the story of the woman Marlise Muñoz in Texas. And this was a woman who was pregnant and suffered a medical event and was in a coma and would have died absent life support, but there was a fight to keep her on life support for the sole purpose of gestating her pregnancy. Her corpse was, like, decomposing, and her husband is begging the hospital and administrators to take her off life support, and they were too afraid of the state of Texas to do so at the time without a huge fight. So, the question of are you dead enough is not hyperbole. It's precedent in Texas.

Jennie: I can't believe I forgot about that.

Jessica: Remember that? That was horrible. It was horrible. They literally kept this poor woman on machines to try and keep her pregnancy alive.

Jennie: Oh, I did forget about that. Wow. Okay.

Jessica: I'm sorry. I have a tendency to bring back all the old bad stories to be like, but, but, and like that's a perfect example of one but I do think the through lines are just very important, right? Because one of the things that has happened post-Dobbs is there have been a lot of stories about this tragic event and this tragic event, and they're all important. All of these are important for folks to understand the impact of it. But I sometimes worry that we lose some of that connective tissue by just being like, and this bad thing, and this bad thing, and this bad thing. Folks need to understand that the conservative legal movement is really trying to make it so that reproductive healthcare is never healthcare. And so, that the pregnant person is never the primary patient in the Fifth Circuit decision. They do this in a very sneaky way. The EMTALA statute specifically says that the doctors have a requirement to stabilize the pregnant person or the pregnancy, right? It's an “or” and the Fifth Circuit says, well, EMTALA says the doctors have to stabilize the pregnant person and their pregnancy. They changed an “or” to “and” by doing so, changed the meaning of a statute. And I know that sounds like silly lawyer stuff, but that is actually a really big deal, you know? And so those sleights of hand are not just devious, but they are intentional. We have seen from Dobbs a campaign to rewrite the law and I mean, you know, it started really before Dobbs with the Supreme Court letting SB8 take effect by sort of omission. But really things got very weird after Dobbs in terms of the way the court started reading precedent. And unfortunately, I do think we're going to get to a place where we have a story where someone's died, you know, someone has had an event and, you know, it may take a lot of liability exposure to a hospital, for example to finally do that. And it's terrible that this is what we're talking about, you know?

Jennie: You used to kind of think that that would like be enough, doesn't quite feel right, but like that, that would, like, shake them and like that would be like, okay, we need to kind of rethink some of this, but, like, watching like this EMTALA stuff go forward and all of these conversations that we're having to have of all of these cases, I'm like, I don't know that they're gonna care.

Jessica: I mean, I think that that's something that we really, truly have to grapple with. We have folks from the Alliance Defending Freedom, for example, working hand in hand with conservative attorney generals. I mean, Chris Geidner reported this. They're helping the Idaho AGs office defend its abortion ban and try to override the guidance for free. Those are lawyers that charge 400 or 500 an hour and this matters to them so much. Making sure that people in medical emergencies can't access life saving abortions matters so much. Those lawyers are working for free. And folks, like that's malice in your heart to do that, guys. Like, sorry, it is.

Jennie: So, this will likely go to the Supreme Court.

Jessica: Yeah. Idaho really wants it to.

Jennie: I don't feel good about that, Jess.

Jessica: I don't either. I really don't. I think that, you know, one of the things that we really have to grapple with in a post-Dobbs reality, and I, and I see some organizations and, and folks doing so to, you know, more successful degrees than others. The courts were never gonna save us. But right now, the courts can become active agents of harm, also. And I think that that is an important reality for folks who need to, you know, as advocates figure out how to navigate this. And I have a ton of empathy. This is not, you know, that's an impossible decision. I went to law school and practiced law for a long time because I believed in the ability of a flawed system to still do, right? And that the idea that if enough of us worked hard enough over time, we could push that moral compass. And I still believe that that is true. But I also know that it's true that the Republican party spent decades making sure that the federal judiciary was captured by ideologues who would be willing to impose an agenda that was politically unpopular so that we have the courts fully functioning as a policy arm of the conservative movement now. And what is one of the top priorities of the conservative movement to upend reproductive autonomy in its entirety. That's not just abortion access, that's birth control, that's gender affirming care, that's IBF and assisted reproductive technologies, that's going as far as going for no-fault divorce. So, really when we're talking about a constitutional unraveling, yeah. And folks on the conservative legal movement are really pipelining as many of these issues as they can, and the judges on the lower courts understand their assignment. The fifth circuit decision in the EMTALA case is a lot of folks are like, "this is bonkers. It's so far outta the norm." And yes, it is. And then I invite you all to go read the majority opinion of the Dobbs decision, you know, where Justice Sam Alito is citing church history for the proposition that, you know, reproductive autonomy isn't a long held recognized right in this country. So, we're long past, like, what is outrageous in terms of the courts, and I don't feel comfortable with the idea of the Federalist Society judges deciding whether or not abortion is considered healthcare ever, because I understand where they stand on that issue. They've made themselves very clear. Does that mean that we don't fight in the courts? I don't know, that's a hard one. I think we probably still have to, I mean, you know, Chase Strangio who works at the ACLU and is probably the most prominent trans rights litigator in the country, or at least recognizable one right now, talked about this very directly. They, you know, because there's a lot of gender affirming care bans that they're working on that are working their way up through the appellate court system and will likely be before the Supreme Court at some point. And Chase said, you know, look, we understand who the audience is as in, you know, we understand that it's hostile and we understand that the outcome might not even come in our favor, but as advocates, how do you tell your clients you're just not gonna fight for them, right? How do you say, sorry, I don't think we can win, so it's not worth it. And that hit in a different way. And so, when I start to have that like, well, screw the courts, you know, like, I have to take, I have to, like, kind of pull myself in a minute and be like, but wait a second, Jess. You know, there's actually folks who are doing harm reduction in that way. Chase talks about the need to, you know, litigate these cases as a way to buy political time as well because normally they don't take or normally they take a long time, right? It's not something that wraps up pretty quickly. So, I'm with you on the idea that like, anytime we're talking about reproductive autonomy in the federal courts, like my stomach hurts but I don't know what the alternative is right now. And I think we need to continue to build the case that we need institutional reform.

Jennie: Oh, it's definitely a both-and, like, can't not keep fighting, but also have to be working on all of the other pathways.

Jessica: Absolutely.

Jennie: Okay. So, those are the things that are, like, working their way up. But last time you were on the podcast, we talked about another case that was working its way up again through Texas in the Fifth Circuit. Why is it always Texas? Anyway.

Jessica: I know.

Jennie: And that is the mifepristone case, which the Supreme Court is gonna hear this year.

Jessica: Right?

Jennie: Okay. So, we talked about it before it was argued, I think, or right after it was argued— one or the other.

Jessica: Yeah.

Jennie: Before it was decided because I had somebody else talk about that. What, what, what's going on?

Jessica: Yeah. The fight over mifepristone approval has been one of the, like, dark horse stories of the post-Dobbs news cycle for sure. I mean I knew how they were coming from medication abortion and abortion pills, but wow, we didn't realize, I think, how fast and how bonkers that attack was gonna be. So, the court has not scheduled arguments on this case, just yet lemme say that. It's got its calendar filled through February. So, this will be you know, arguments heard in March or April and they'll be hearing petitions filed by manufacturers and the Biden administration asking them to undo the Fifth Circuit court of appeals decision effectively. And so, you know, there's actually, there are a few what I would call opportunities for success in this lawsuit. That's how we'll frame it. 'Cause like, you know, hopeful is doing a lot of work there.

Jennie: Yeah.

Jessica: But the issue before the court…so the good news, let me start with the good news. The good news is that in addition to the Biden administration and mife manufacturers asking the Supreme Court to take up the circuit decision, Alliance for Hippocratic Medicine had filed their own circuit petition and also wanted the Supreme Court to take up the case, but for the purposes of undoing mife approval entirely, right? Like, saying the whole things gotta go. The Supreme Court did not take that petition. So, conventional logic would suggest that they are not gonna reach the issue of mifepristone approval generally at all. I say conventional wisdom, and I wanna put an asterisk there because you'll probably remember me talking about the Dobbs decision, how when the Dobbs decision, when the court first took up the Dobbs case, the question they were asked to answer was whether or not Mississippi's 15 week ban was constitutional under Roe and Casey, the briefing happened and it was a whole different ball game, and then all of a sudden they were like you know, reverse Roe and you know, we know the story from there. So, I'm a little skeptical that just because initially the Supreme Court said no to that question, that we won't see it come back up in some way, even in a dissenting opinion by Clarence Thomas if he finds himself on the wrong side of this, telling folks how to bring the case to get to mife withdrawal completely. But that's a sidetrack. So, what is the court gonna decide? The first question the court's gonna decide is whether or not the Alliance for Hippocratic Medicine, this group, this political collective of anti-choice doctors and a couple dentists. I think it's important to mention the dentist because truly, what the hell guys?

Jennie: I go to the dentist to get mife all the time.

Jessica: All the time. You know, what I'm like thinking about is my vaginal health while I'm getting my teeth cleaned. Anyway, apologies for that digression. The first question they're gonna ask is whether or not these guys have standing to even bring the challenge to mifepristone in general, and standing I've explained I think on the show before, is really the legal concept of having some skin in the game, right? Are you invested enough beyond just your feelings to have a remedy here that the courts can provide of some sort in this dispute? And by all accounts, these folks do not have standing. They are not harmed. The last time I was on, I was talking about some of the ridiculous claims of harm that the courts had adopted here. So, the Supreme Court should find that these schools do not have standing and kick this case, but they may not do that. You know, one of the things we know is that the anti-choice movement has been looking for ways to crack open the standing doctrine so that they can challenge other laws for a long time. And so, you know, this may be an opportunity for them. So, they'll answer that question. Then they're also gonna answer the question about whether or not the administration's actions, the Biden administration's actions during Covid, for example, in terms of loosening some of the restrictions around how people access medication abortion. So functionally pills by mail, for example whether or not that exceeded the administration's authority the way that they did that. The non-law talk around this is that if the Biden administration and manufacturers lose at the Supreme Court, what we could be seeing is a return to restrictions around mifepristone access from about the Clinton administration. So, it's a rollback that is significant in that sense. It would roll back a little bit the gestational limits in terms of when folks can access the pills. It would require in-person visits, so compromise telehealth. Like, those are real issues—and given the prevalence of pills in provision of abortion care in this country—a huge threat to access.

Jennie: My God, everything...

Jessica: Initially when the court took the case and didn't take the other petition, I saw a lot of people being like, yay, this is good news. And I was like, guys…is it really, I dunno. I mean, had the court not taken the petition, then the Fifth Circuit decision would've stood, and so it had to do something. This is one of those situations where the court had to do something. I'll also say that Solicitor General Prelogar is phenomenal. She is an amazing advocate. The attorneys on behalf of Big Pharma have been crushing it as well. And if there was ever an opportunity for John Roberts and Brett Kavanaugh to do something to show that they weren't just completely beholden to the anti-choice movement, it would be to side with Big Pharma here. So, that may be what we're hoping for is that, you know, truly the pharmaceutical industry is the one that is able to carry the day and allow folks the opportunity to strategize, because we know no matter what the Supreme Court rules in this case, the antis are coming back with another shot across the bow.

Jennie: So many attacks happening all at once on emergency, on access to medication abortion, other cases we didn't talk about, like young people's access to Title 10 services.

Jessica: Oh my God, that was one of the big ones that I really wanna talk about. But that is, like, a whole...you're gonna have to have me back on only to talk about that because that is an existential threat to Title 10 across the country and nobody's talking about it. And that case makes me bananas.

Jennie: Okay, put a pin in it, we will have you back to do that because that is a wild case. And I debated putting it on here, but I was like, too many, too many cases.

Jessica: We're already at like, almost 40 minutes and I was all over the place. Your listeners probably have a little bit of auditory whiplash as a result of that, my apologies. But there are just so many, there's so much nuance in these cases. And at the same time as I said earlier, so much connective tissue that I think is important to, to say, no, actually, they really are trying to make it not just impossible to access abortion as a medical procedure, but so that abortion doesn't even exist in the universe of healthcare options.

Jennie: I feel like we need to end on, like, a hopeful note or a...so let's do my usual of, like-

Jessica: Yeah.

Jennie: -what can people do right now? Like, there is so much happening in these cases. Kind of feel a little overwhelming right now. What should people do?

Jessica: Well, make sure they're taking care of themselves because this is a marathon and not a sprint, and that is something truly—particularly as we are gearing up for what will be a messy and not very satisfying, I'm worried to say, election season. Make sure that you are grounded in yourself for the long haul. Then, in terms of the court fights, I think it's also important to remember that, you know, there's a lot of really positive work happening, not just at the state level in terms of abortion access, which we've seen like at least 11 states will have abortion rights and access on their ballot in 2024. But the ability to put pressure on federal lawmakers to do things as well. You know, the big mifepristone fight that we just talked about, one of the key pieces of legislation that's at the heart of that is the zombie law called the Comstock Act. The idea that Democrats are not rallying around some sort of Comstock reversal, right? Get it off the books. What are we doing, folks? This is, like, an anti-vice law from the 1870s. Like, we can do better. Let's repeal Comstock. So, put pressure on folks to do that. Have the conversation, at least, you know, is it gonna happen? I don't know, but let's, like, make it so that it's a priority. Those are absolutely things that they can do. And then, of course, nothing feels better if you have the capacity in your budget and can share some of your resources than helping folks access care directly. So, give to your local or national—if you can’t, don't have a local one—abortion fund, make sure that you're supporting direct aid services and amplify the voices of folks in local communities who are providing that care because they really understand the network and the, you know our clinics serve as points of community in so many ways. And that I think is a point that often gets lost. And what we're seeing is a broad scale attack on civic institutions from the right. And we need to talk about the fact that abortion clinics are civic institutions, support them as such.

Jennie: Yeah, I think one of those things that, like, there was so much like in the aftermath of Dobbs, there was so much rage-donating. I know I did a lot of rage-donating.

Jessica: Yeah.

Jennie: And I think from what you hear is, like, a lot of that has slowed down. So, it is really important to continue supporting abortion funds right now because they really need it.

Jessica: They really do. And you know, one of the things that we have seen is with each amplification of attack even in places that are abortion destination states, access to care is not guaranteed. You know, I live in Colorado, which is a state that has really protected abortion rights and access and our clinics are under pressure like never before. And that is, you know, that's not a good place to be.

Jennie: Okay, Jess, thank you so much for being here. As always, an utter joy to talk to you.

Jessica: I wish I had better things to be talking about, but yes, I deeply enjoy the conversation in the company as well.

Jennie: Well, okay y'all, I hope you enjoyed my conversation with Jess. Like I said, there is so much happening and there are so many more court cases to talk about. We will definitely have to have Jess on again to break down some more of them. And it was just as always a sheer delight to talk to her. So, with that, I will see y'all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!