SCOTUS Maintains Access to Abortion Drug | Crooked Media
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June 13, 2024
What A Day
SCOTUS Maintains Access to Abortion Drug

In This Episode

  • In a unanimous decision on Thursday, the Supreme Court preserved broad access to the abortion drug mifepristone — at least for now. The justices dismissed the case on a technicality, ruling that the anti-abortion groups and doctors who brought it didn’t have a legal right to sue. But the court’s decision isn’t a solid win for abortion access. The justices didn’t weigh in on the substance of the case, meaning it could end up back in front of the court. Already, three Republican-led states are trying to make that happen. Julia Kaye, senior staff attorney with the American Civil Liberties Union’s Reproductive Freedom Project, explains the ruling and what’s next.
  • And in headlines: President Joe Biden and other G7 leaders agreed to finance a $50 billion loan to Ukraine to help pay for its war against Russia and rebuild the country’s infrastructure, former president Donald Trump schmoozed with House and Senate Republicans during his first visit to Capitol Hill since the Jan. 6 insurrection, and the ACLU and immigrant rights groups sued the Biden administration over the president’s executive order severely limiting asylum claims at the southern border.
Show Notes:


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Tre’vell Anderson: It’s Friday, June 14th, I’m Tre’vell Anderson. 


Alyona Minkovski: And I’m Alyona Minkovski and this is What a Day. The show where we’re marveling at disgraced former President Trump’s choice to prepare for the RNC in Milwaukee, Wisconsin, by reportedly calling it a horrible city. That was while meeting with House leaders on Thursday. 


Tre’vell Anderson: You know, this is the kind of 4D chess he’s always playing. 


Alyona Minkovski: Like the man says, he has a very, very large brain. 


Tre’vell Anderson: Huge brain. [laughter] [music break] On today’s show, G7 leaders agree to loan Ukraine $50 billion to rebuild and for weapons in its fight against Russia. Plus, former president and convicted felon Donald Trump visits Congress to rile up Republicans. 


Alyona Minkovski: But first, we finally saw some action from the Supreme Court on Thursday. The justices issued opinions in three cases, and the big one was a unanimous decision to maintain access to the widely used abortion drug Mifepristone, at least for now. The other two decisions were more like docket deep cuts. In one case, the justices sided with Starbucks in a labor dispute. And that ruling could make it harder for the National Labor Relations Board to step in when a company is accused of retaliating against unionizing workers. The other decision was a ruling against a California lawyer who was trying to trademark the phrase, Trump too small. So maybe the Supreme Court just decided that the phrase insinuating Donald Trump has a small penis is not meant to be owned by just one person. It’s for all of us. At least that’s what I’m choosing to believe. 


Tre’vell Anderson: Yes, it’s for the general community. You know, we all get to have that one. 


Alyona Minkovski: Leave it for the people. 


Tre’vell Anderson: But like you mentioned, the big decision Thursday was the one about access to one of the drugs used in medication abortions called mifepristone. What did the justices say? 


Alyona Minkovski: Well, the justices just dismissed the case. They said that the anti-abortion groups and doctors who brought it didn’t have a legal right to sue. Justice Brett Kavanaugh wrote the opinion for the majority, and he said that the groups’, quote, “desire to make a drug less available for others does not establish standing.” But it’s not a solid win for abortion access, either, because the justices didn’t weigh in on the actual claims that these anti-abortion zealots were making in their case. You see, they were challenging two recent decisions by the Food and Drug Administration that expanded access to Mifepristone, including making it available by mail. But because the justices didn’t touch the substance of the case, it could actually end up back in front of this court. And already three Republican led states are trying to make that happen. Now for more on Thursday’s decision and what happens next, I spoke with Julia Kaye. She is senior staff attorney with the ACLU’s Reproductive Freedom Project. And I started by getting her reaction to the ruling and asking whether or not she saw this as a positive development for reproductive rights advocates. 


Julia Kaye: Absolutely. We were relieved not to see the Supreme Court impose nationwide restrictions on Mifepristone, which is a safe, effective medication used in most U.S. abortions and is part of the gold standard treatment regimen for miscarriage care. But the technical legal question that was before the court, which was whether these anti-abortion groups and individuals who brought the case, but have no actual connection to the FDA’s regulation of Mifepristone. The question of whether they had legal standing in the first place should have been an easy one. So while we were certainly pleased and relieved to see the Supreme Court do the right thing, it’s hard to feel excited about an outcome of a case that never should have been up at the High Court in the first place. 


Alyona Minkovski: I think that’s an incredibly important point here. Can you tell us a little bit more about the doctors and the group who brought this case, and what they had been arguing in the challenge against the FDA?


Julia Kaye: A few months after the Supreme Court overturned Roe v Wade, a couple of anti-abortion associations and doctors got together and formed a new shell organization in Amarillo, Texas. And the reason they established this organization in Amarillo appears to be to ensure that they could bring this very lawsuit and guarantee that it would be heard by a Trump appointed judge with a record of hostility to abortion. And they asked the court to take Mifepristone off the shelves everywhere in the country. They challenged every single regulatory decision the FDA has made relating to Mifepristone, going all the way back to the FDA’s original approval of this medication nearly a quarter century ago. The plaintiffs here travel the country peddling misinformation about abortion safety. Their goal is to see all abortion banned. We see these folks all the time and time and again when other courts have heard these witnesses testify, they have kicked out their testimony about abortion for being inaccurate, exaggerated, distorted, not grounded in the medical evidence. Doctor Ingrid Skop, who was cited 17 times by the Fifth Circuit Court of Appeals, Doctor Skop has admitted in a prior deposition that she is not a really good researcher. So this is the kind of junk science we’re dealing with. And this is what these plaintiffs were trying to use to attack access to Mifepristone everywhere in the country. 


Alyona Minkovski: Let’s get back then, to that fundamental point that you made. Which is the Supreme Court said that the people bringing this case did not have standing. So where does the future of Mifepristone really stand? Is it still in jeopardy? Could other people bring new cases? 


Julia Kaye: Yes. We are certainly concerned about what comes next. The district judge in Amarillo, who plaintiffs here hand-selected to hear their case. The district judge has already allowed three states, Idaho, Missouri, and Kansas to intervene in the proceedings on the same side as the anti-abortion groups. And these states filed a brief in the Supreme Court earlier this year alleging that even if the court were to find that the original plaintiffs did not have standing, these states said, we’re going to continue the case. We’re either going to try to keep litigating it in Texas, or we’ll file copycat suits in other jurisdictions. So this fight is far from over. 


Alyona Minkovski: First of all, incredibly depressing, that unfortunate truth that you mentioned and just shows people that you still have to remain diligent here in trying to protect abortion access, reproductive rights access nationwide. The thing is, we’re also expecting another ruling on abortion from the Supreme Court any day now. And that’s regarding emergency abortion care. Can you tell us a little bit about that case and its potential implications, especially since it seemed like when the Supreme Court overturned Roe v Wade, they were saying they don’t want to rule on this issue anymore?


Julia Kaye: The second abortion case before the Supreme Court was brought by the Department of Justice shortly after the Dobbs decision. And this case relates to Idaho’s abortion ban, which makes it a crime for anyone to perform or assist in performing an abortion in virtually all circumstances. Idaho’s abortion ban does not contain any health exception at all, even for emergencies. Only for when a doctor can prove that an abortion is, quote, “necessary to avert death.” So the Department of Justice took Idaho to court because by prohibiting certain emergency abortions, the state’s criminal abortion ban conflicts with a longstanding federal statute known as EMTALA, the Emergency Medical Treatment and Labor Act. EMTALA has required hospitals to provide stabilizing treatment to anyone who comes to a hospital experiencing an emergency medical condition. Unlike Idaho’s ban, EMTALA recognizes that medical emergencies can and must be treated before the patient is on the precipice of death. And crucially, Congress included explicit language in EMTALA, saying that if any state law conflicts with this federal law’s requirements, EMTALA must win out. And that’s what the district court in Idaho said when it issued an injunction preventing Idaho prosecutors from throwing physicians in jail for providing emergency abortions under EMTALA. And in an extraordinary and extraordinarily depressing order earlier this year, the Supreme Court lifted the district court’s injunction in Idaho pending a final decision from the court. 


Alyona Minkovski: So we have covered emergency abortion care. We have covered Mifepristone, which can be used for abortions, which can be used, as you mentioned too, in cases of miscarriage. That’s something I personally went through and had a doctor prescribe it at that point. It seems to not be ending. Right. The assault and the affront on women’s reproductive rights in this country. So there is another battle happening now over IVF or in vitro fertilization. And so this happened in the Senate. Democrats put forth a bill on Thursday that would protect access to IVF nationwide. Republicans blocked the bill. In your view, are we going to start seeing more litigation over just IVF in this country? Is that going to become a new battleground? 


Julia Kaye: Yes. I think what we are seeing is that these extremists are coming for all of our cherished reproductive freedoms. They’re not just trying to ban abortion nationwide, they’re also coming for contraception. They’re also coming for IVF. The list goes on and on. And when these politicians, when these anti-abortion extremists, when they show us that they are coming for it all, we need to believe them. We need to stop being surprised at the lengths to which they’ll go to control our bodies and our futures. 


Alyona Minkovski: Now we know that abortion is top of mind for voters as we get closer to the election in November and Donald Trump, GOP front runner presumptive nominee um has flip flopped on this issue of what he will do in the past. And at the same time, he, of course, has taken credit for appointing the justices who overturned uh Roe v Wade. Now, recently, he is saying that he will leave further decisions up to the states. But of course, he’s facing pressure from activists in his party to take a tougher stance. Is there any other way that Donald Trump as a president, could restrict abortion further? 


Julia Kaye: Yes, certainly. Donald Trump’s allies have a plan for Trump, if elected, to try to use a law from the 1800s that was designed as an anti obscenity statute to ban all abortion nationwide with the stroke of a pen, without even needing any congressional involvement at all. So the statute that they are focused on is something called the Comstock Act of 1873. And this is a law that purports to make it a crime to mail any medication or equipment, or any other item to be used for an abortion. Now, the way that Trump’s allies are misinterpreting this antiquated law is that they claim it can be used to prosecute anyone who mails anything, even for a lawful abortion. That is not what every federal appellate court who looked at this question has concluded. That is not what the US Postal Service or Congress or the Department of Justice has concluded. They’re wrong, but they believe that they can persuade anti-abortion judges to agree with their interpretation. And they believe that Donald Trump can use this law to ban all abortion, because, of course, all medical equipment and supplies are transported or delivered through the mail. Someone named Jonathan Mitchell, who is also on the shortlist to be Trump’s A.G. if he is elected, he has been caught on record saying I hope that Trump stays quiet about this until after the election. They are going to try to use this to ban all abortion, and they do not want the voters to know. Even setting aside Comstock, certainly we could see Donald Trump come in and refuse to defend the FDA’s evidence based update to its own regulations when they’re challenged in the future by states like Idaho, Missouri, and Kansas. We could also see a Trump appointed FDA commissioner roll back the FDA’s changes and roll back the clock on science. Despite the mountain of medical evidence supporting the decisions that the FDA made in 2016 and 2021 to lift certain restrictions. 


Alyona Minkovski: That was my conversation with Julia Kaye. She’s senior staff attorney with the ACLU’s Reproductive Freedom Project. We’re still waiting for a lot of big decisions from the Supreme Court this term, including the emergency abortion case that we discussed. So we’ll keep an eye out for that and other decisions as the court wraps up its term later this month. 


Tre’vell Anderson: Thanks for that, Alyona. We will get to some headlines in a moment. But if you like our show, make sure to subscribe and share it with your friends. And in honor of Father’s Day, share it with your daddy too. Okay. We’ll be back after some ads. [music break]




Tre’vell Anderson: Let’s get to some headlines. 


[sung] Headlines. 


Tre’vell Anderson: President Joe Biden, along with his G7 counterparts, agreed to finance a $50 billion loan to Ukraine on Thursday to fight the war against Russia and rebuild the country’s infrastructure. The money will be repaid by interest accrued from Russian assets that were frozen by Western governments after Russia invaded Ukraine in 2022, including money, gold, and bonds. The details of how the loan will be financed have not been solidified, but the U.S. is willing to front the entire $50 billion loan, with officials saying they expect allies to contribute. In addition to the loan, Ukrainian President Volodymyr Zelensky and President Biden signed a ten year security agreement committing the U.S. to supply Kyiv with military assistance in a hope to obligate support for Ukraine even if Trump takes back the White House in November. Here’s Zelensky at a news conference following the signing ceremony. 


[clip of Ukrainian President Volodymyr Zelensky] This is an agreement on steps to guarantee sustainable peace, and therefore it benefits everyone in the world because the Russian war against Ukraine is a real, real global threat. 


Tre’vell Anderson: Spoiler alert, Trump will do whatever the hell he wants if he wins the election. So unfortunately, this ten year agreement doesn’t mean much if our leadership changes. 


Alyona Minkovski: While G7 leaders deliberated in southern Italy, Russian prosecutors announced on Thursday that they approved an indictment of Wall Street Journal reporter Evan Gershkovich, he will now have to stand trial on charges of espionage, which is a huge setback for Gershkovich, who was arrested in March of last year and has been held in prison in pretrial detention since. The Russian government claims that he was gathering information on behalf of the CIA. Though they have presented no evidence to back up that claim. The U.S. government, The Wall Street Journal, and Gershkovich all vehemently deny that he was working as a spy and say he was just doing his job as a reporter. In a joint statement, the paper’s publisher and editor said, quote, “Evan Gershkovich is facing a false and baseless charge. Russia’s latest move toward a sham trial is, while expected, deeply disappointing and still no less outrageous.” So just some depressing and devastating news there for Gershkovich’s family and other journalists around the world. 


Tre’vell Anderson: Absolutely. The American Civil Liberties Union and immigrant rights groups sued the Biden administration over the president’s executive order, severely limiting asylum claims at the southern border. The suit, filed Wednesday, argues that Biden’s immigration order is similar to a 2018 order issued by former President Donald Trump that the courts ultimately blocked. The suit was expected. The ACLU said it would file it in the hours after Biden issued the order last week. Lee Gelernt is deputy director of the ACLU’s Immigrants Rights Project. He told NBC at the time that the civil rights group had no choice but to sue. 


[clip of Lee Gelernt] We are all in favor of streamlining the process, but we don’t want to see President Biden go to the other end that Trump did and say, we’re going to ban asylum completely. 


Tre’vell Anderson: Biden’s order effectively closes the border to asylum seekers, once encounters reach an average of 2500 a day over the span of a week. It went into effect immediately. The partial closure remains in place until daily encounters drop to an average of 1500 a day, something that hasn’t happened since summer 2020. 


Alyona Minkovski: Former President Donald Trump schmoozed with House and Senate Republicans on Thursday during his first visit to Capitol Hill since the January 6th insurrection. He was there to lay out his agenda for a second term in office, but in true Trump fashion, offered very few specifics. The former president turned convicted criminal did spend time stressing party unity. He spoke to reporters after his meeting with Republican senators. 


[clip of Donald Trump] This is an outstanding group of people. I’m with them 1,000%. They’re with me 1,000%. We agree just about on everything. And if there isn’t, we work it out. 


Alyona Minkovski: The meeting with Republican senators was reportedly the first time that Trump and Senate Minority Leader Mitch McConnell had spoken since just before the insurrection. At the time, McConnell blamed Trump for the riot, but on Thursday, he was all smiles after their quote, “entirely positive meeting.” And even Utah Senator Mitt Romney, who voted to convict Trump in his second impeachment trial, reportedly attended the meeting with the former president. And going back to the horrible city comment that Trump made about Milwaukee. You know, no big deal. This is just the city hosting the Republican National Convention in July. It’s also the largest city in a key swing state. 


Tre’vell Anderson: I just love Milwaukee Mayor Cavalier Johnson’s response to all of this. He said, quote, “If Donald Trump wants to talk about things that he thinks are horrible. All of us lived through his presidency. So right back at you, buddy.” 


Alyona Minkovski: [laugh] I hope he takes that one to heart. 


Tre’vell Anderson: Absolutely. And those are the headlines. 




Tre’vell Anderson: That is all for today. If you like the show. Make sure you subscribe. Leave a review, say Trump too small with legal impunity and tell your friends to listen. 


Alyona Minkovski: And if you are into reading and not just the ACLU’s banging score card of standing up for your rights like me, What a Day is also a nightly newsletter. Check it out and subscribe at I’m Alyona Minkovski.


Tre’vell Anderson: I’m Tre’vell Andersen. 


[spoken together] And we still love you Milwaukee. 


Tre’vell Anderson: I don’t know what y’all do there. I heard beer is a big thing in Milwaukee, but shout out to y’all nonetheless. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our associate producers are Raven Yamamoto and Natalie Bettendorf. We have production help today from Michell Eloy, Greg Walters, and Julia Claire. Our showrunner is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka.