In what has become a depressing tradition, it’s time for our annual look at the hell that SCOTUS unleashed with Dobbs v. Jackson Women’s Health Organization. To look at the landscape for reproductive rights and justice, the team is joined by Julia Kaye, senior staff attorney at the ACLU and Fatima Goss Graves, president and CEO of the National Women’s Law Center Action Fund.

TRANSCRIPT

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw, and the episode we are bringing you today has become something of an annual tradition, but not the happy sort. And that is that over the last two years, we have done an annual summer retrospective on Dobbs versus Jackson Women’s Health Organization and what Dobbs has unleashed. We started doing this the very first summer after the court overruled Roe versus Wade, because we thought and still think it is important to stay on this topic and to communicate everything that the overruling of Rowe has set in motion. You know, Supreme Court cases often get a ton of attention when they are first handed down, and then they can kind of fade from memory. But it is hugely important to remember what and who is responsible for everything we are seeing happen in the wake of Dobbs.

Melissa Murray So the very first summer after Dobbs, we talked about the stories that had already emerged about pregnant people being denied care, often in the wake of trigger bans that suddenly went into effect after Rowe fell. And then in the second summer, we did dramatic readings and reenactments of some of the opinions in Dobbs to assess how the different claims in those various opinions held up over time. And if you haven’t listened to John Lovett playing the part of Justice Samuel Alito and Ellie Mae Stahl playing the role of Justice Clarence Thomas, all I can say is you must, must do so immediately. So go find that it is definitely worth your time.

Leah Litman This year we decided to name the retrospective something a little bit different. We are calling it the state of the uterus, and we are doing that because we think it should be an annual event to bring people up to speed on what Dobbs has wrought, and to help us with our first annual state of the uterus. That is really our third annual Dobbs retrospective. We’re delighted to be joined by two fantastic guests. First is Julia Kaye, senior staff attorney with the ACLU’s Reproductive Freedom Project. And second is Fatima Goss Grace, the president of the National Women’s Law Center Action Fund. Thanks for joining the show, Julia and Fatima.

Julia Kaye Delighted to be here.

Fatima Goss Graves Hey, guys.

Kate Shaw All right, so we are going to cover a few different issues today. First, the landscape for reproductive rights broadly defined after Dobbs eliminated the firewall between government regulation and American uteri and reproductive health care. Second, the continued stream which Leah alluded to of tragic stories that have unfolded in the post Dobbs landscape. And third possible next frontier is for reproductive rights and justice. Again, because Dobbs eliminated one important safeguard, Roe versus Wade, that stood between reproductive health care and government intervention.

Melissa Murray But listeners, if you came to hear a little bit more about project 2025, again, Disaster Peace Theater, do not worry. We are going to be covering project 2025. In this episode. And more generally, as we talk about the state of reproductive freedom right now. But before we start with the state of the uterus, maybe we could get our guests take on what it means to have a state of the uterus. So, Julia, Fatima, what do you think about the prospect of an annual discussion about the state of reproductive freedom at which the Supreme Court is present, but utterly silent?

Julia Kaye I think it’s urgent that folks be.

Leah Litman Sam Alito is mouthing not true right now.

Melissa Murray Not true. Not true.

Julia Kaye There is so much to be said on this topic. We could devote so much more than a single episode to it, but I’m certainly grateful that you all are elevating this topic, which continues to haunt our nation since the Dobbs decision. And of course, there were severe issues around reproductive health care access long before Dobbs as well.

Fatima Goss Graves I actually think you need the Supreme Court to be a little silent, to have an accurate conversation around the last two years of Dobbs, because otherwise it’s really hard to see that gaslighting and and like wise that we’re in that decision. They knew it would be chaotic. They knew it would be cruel. But when you go back and read Dobbs, you see how casual they treated all of the practical effects. And so having an opportunity with you brilliant folks to actually name it without anyone trying to convince me I don’t see what I see with my eyes, is actually very lovely.

Melissa Murray That’s a great place to start. The cruelty, the chaos. Because in the wake of Dobbs, it has been truly a bleak, dystopian patchwork. So we’re going to quickly sketch that landscape, and then we’ll ask Julia and Fatima for their insights about it. But let me start with one of the big developments. And that’s not necessarily in access to abortion, but rather in the domain of assisted reproductive technology and specifically in vitro fertilization. IVF IVF is the process of harvesting and fertilizing over eggs for intrauterine implantation, and it’s a major conduit for family formation for those who have trouble conceiving and for those in same sex relationships.

Kate Shaw Regular listeners will recall that the Alabama Supreme Court issued a decision earlier this year that jeopardized the future of IVF, while the Alabama state legislature subsequently passed a law purporting to kind of clarify that IVF may still be used in the state, the hospital that was actually involved in that case, that ended up before the Alabama Supreme Court chose to stop offering IVF services after this year, notwithstanding the legislation, citing, quote, pending litigation and the lack of clarity of the recently passed IVF legislation in the state of Alabama. Now, just to give a little bit of insight into what the objections to IVF are all about, it turns out that despite ostensibly pro-life positions, many conservative groups oppose IVF, and the reason is that it requires the implantation, often of multiple fertilized embryos and, if necessary, the selective reduction and elimination of some of those embryos in order to maintain a viable pregnancy. And although people use IVF for any number of reasons, we wanted to note one specific case, which is the case of a man who is one of the patients who challenged Texas’s standards for the use of abortion exceptions, and who then started using IVF after she suffered long term damage to her fertility when she was forced to wait to have an emergency abortion after suffering a miscarriage.

Leah Litman There are also challenges to reproductive health care more generally, so on infant mortality. One study found that infant mortality increased by almost 13% the year after Texass six week abortion ban went into effect, and infant deaths because of maternal pregnancy complications increased by 18% on maternity care. A Senate report found that for Idaho, maternity wards closed or paused operations since Dobbs overruled Roe versus Wade, and The New York Times reported that the state has lost nearly a quarter of its OB GYNs and more than half its maternal fetal medicine specialists.

Melissa Murray And that’s not all listeners. In addition to all of those consequences, there have been efforts to harass, terrorize, scare, or otherwise deter individuals from accessing abortion care. And some of this came in the form of lawsuits. So last year, Jonathan Mitchell, listeners, you will remember his name. Not only is he the architect of SB eight, the Texas bounty hunter law, he also represented Donald Trump in the Colorado disqualification case. And he’s probably a major frontrunner for the position of attorney general in a Trump administration. In any event, he’s a busy bee because Jonathan Mitchell has also represented a Texas man in a lawsuit filed against the women who helped that man’s estranged wife get access to the abortion pill. And more recently, Jonathan Mitchell represented another Texas man who disclosed his former partner’s abortion to a state district court in Texas as part of a request to the court for the authority to investigate potentially illegal activity. What was that potentially illegal activity? Helping someone obtain an abortion, which would violate Texas SB eight, the law that Jonathan Mitchell orchestrated and wrote.

Kate Shaw And one more thing to flag in Louisiana, a law was passed reclassifying abortion pills. So the pills used in medication abortion as controlled substances. That is just a sampling. Okay, so threats to IVF, loss of ordinary ObGyn, care, harassing litigation, reclassification of medication, abortion.

Leah Litman Rising infant mortality. Losses of maternity care.

Kate Shaw So again just a sampling. So maybe Julia, do you have any other thoughts to share about the incredibly grim landscape that we have just sketched?

Julia Kaye Yeah, there are indeed a few more bleak lowlights that I would want to lift up. So access to abortion care was severely restricted in even more states over the last year, and that was largely due to state supreme courts reversing their own well-established precedent on abortion. Based on little more than a change in judicial personnel. Iowa, Florida and South Carolina are three examples of this. All three of those states now have six week abortion bans in effect, in other words, banned that begin just two weeks after a person’s first missed period. And that is because of the state Supreme Court’s overruling their own precedent. In South Carolina, the state Supreme court reversed a decision issued just last year after the only female justice on the court retired, and the legislature replaced her, to create the only all male high court of any state in the country. The legislature then enacted a nearly identical six week abortion ban, and the newly composed court upheld that. So that has been, of course, devastating to see additional swaths of the country losing access. We’ve also seen, as your listeners will know well, heightened attacks on mifepristone through the courts. Mifepristone, of course, is a medication used in nearly two thirds of all U.S. abortions and is part of the gold standard treatment regimen for miscarriage, and leading medical authorities describe it as not just safe, but one of the safest medications being used in medical practice today. So, of course, the private plaintiffs who brought the Alliance for Hippocratic Medicine suit were knocked out on standing. But we know that extremist state AGS have already been allowed to intervene in that case, and that they have vowed to continue trying to strip away access nationwide. And then the last thing I would just highlight at this point is that we’re increasingly seeing state attorneys general and state legislatures who are not just content to ban abortion within their own borders. They are now trying to prevent their residents from being able to access legal abortion care out of state. So in Alabama, after the state’s total abortion ban took effect, Attorney General Steve Marshall stated publicly his intent to use preexisting non abortion specific criminal laws, like conspiracy to prosecute people who help abortion patients get out of state. And similarly, in Idaho, Attorney General Labrador has taken the position that doctors violate Idaho’s total abortion ban if they support their patients in accessing legal care out of state. Of course, legislatures want to get in on the action, too, and as we so often see politicians do when they’re trying to build momentum for sweeping attacks on rights, they are throwing minors under the bus first. So this year, both the Idaho and Tennessee legislatures passed laws criminalizing folks who support minors in accessing legal abortion care out of state. I want to just emphasize that the consequences of this kind of attack are particularly devastating for those young people for whom, tragically, it is not safe to involve their parents in their abortion decision, as the overwhelming majority of young people otherwise choose to do so. The good news is that both of these threats and the two new statutes have been challenged in court, principally under the First Amendment and the fundamental right to interstate travel. And our side has been winning so far. We should continue to win on this, because obviously, the First Amendment protects speech about legal conduct in another state, and because there is extensive Supreme Court precedent over more than a century upholding a right to interstate travel for any reason as fundamental to our Constitution and to our union. And the case law is clear that this includes the right to be helped by someone else in making that cross-state travel for the law nerds in the audience, I see you, I am you, and Edwards of California from 1941 is a good one for that proposition. But the bottom line is that these politicians are continuing to try to stress test the precedent and, more importantly, in some ways, intimidate and isolate. Abortion patients and those who help them. And the reality is that their actions have had a serious chilling effect.

Melissa Murray Fatima, do you want to add anything?

Fatima Goss Graves Yeah. I mean, I know that was already a pretty grim, recitation, but I, I think I want to pick up on the point you made around the intimidation and what that looks like, because some of it is the use of criminal law. And I think that’s gotten a little bit more attention. But they’re being creative more broadly to isolate and harass and intimidate people who are seeking abortions, but also anyone who is inclined to help them. And and using a range of tools, using state administrative proceedings, using licensing rules. You know, we’ve run at the Abortion Access Legal Defense Fund, and we launched it a year ago thinking that we would need some support for patients and, and helpers. But I have to say, the wide range of types of, things that have come in has been what is striking me, teachers who are just trying to be supportive of their students, organizations that provide practical support and what that looks like. So there’s a range of intimidation that’s actually effective in its isolation. And then the second thing I want to name is just around refusals. Even before Dobbs, we had a problem with people refusing care. And I think the change after Dobbs is both this push on our existing laws to make it so people’s personal beliefs should get in the way of accessing care. You know, states are trying to move the laws so that the receptionist is allowed to refuse the scheduling of appointments. But there’s also confusion. People believe even when abortion care is legal, that it is not. They are confused about it. They are turning patients away when they actually should be treating them. This has happened to our clients again and again. And so I think the chaos of Dobbs in part is fine by the on purpose confusion. That remains where even when abortion care should be accessible and available and is perfectly legal, both providers and the people seeking care are not clear about that.

Leah Litman [AD]

Kate Shaw So to pivot, maybe from these kind of high level legal currents to more on the ground specific events and developments. You know, when we did our first Dobbs retrospective, the great journalist Rebecca Traister, who was one of our guests, basically issued a warning that stories about the tragic consequences of Dobbs would at some point, perhaps stop being reported in that they would start to be written off as just more of the same and not really newsworthy. The country like would just acclimate to abortion bans and the denial of much needed care and suffering by pregnant patients. But we’re not willing to let that happen, right? To become routine. So we are going to keep talking about specific stories, because we think it’s just as urgent today as it was the moment Dobbs was issued.

Melissa Murray So I just also want to come back to some of the themes that both Julia and Fatima have hit on it. And it’s basically like, you know, this is ostensibly a landscape created by a quote unquote culture of life, but yet it is punctuated by profound moments of death and harm. And, you know, take, for example, something we discussed when it came out in April 2020 for an AP story that documented some of the human toll that the Dobbs decision has taken. So the AP story talked about one case where front desk staff at a hospital refused to check in a woman after her husband asked for help delivering their baby. The woman later miscarried in a restroom toilet in the emergency room lobby, while her husband called 911 for help. And then there was another anecdote, where the hospital staff told a pregnant woman who was complaining of stomach pain that they wouldn’t be able to provide her with an ultrasound. And so while she traveled to another hospital 45 minutes away, she actually went into labor and gave birth to a baby in a car. And the child did not actually survive. I mean, so I don’t understand how this is consistent with a culture of life. And I guess we’re just supposed to leave this up to the States, but it seems like it’s a pretty bad scenario.

Leah Litman And speaking of who is responsible for what has happened, I think some of the stories we learned about came out of Idaho after the Supreme Court effectively suspended the operation of the federal protections of Am Tala, the Emergency Medical Treatment and Active Labor Act, for several months when they stayed. The lower court decision requiring Idaho hospitals to provide stabilizing emergency care. Senate Democrats put together a report titled Two Years Post Dobbs, and it quoted a doctor saying, quote, we’ve been flying out about a patient a week describing the situation on the ground in Idaho. It also reported that some OB GYNs in Idaho now recommend to pregnant patients that they buy medical evacuation insurance, since a helicopter ride can cost over $70,000. And The New York Times profiled one of the women, Nicole Miller, who had to be airlifted to another state to receive care after she went to a hospital at 20 weeks pregnant with substantial bleeding. And nurses reported that she said, quote, I just need to stay alive so I can be around for my two other kids. When she arrived at the hospital in Salt Lake City, 14 hours after she had arrived in the E.R..

Melissa Murray Do you think you can use your HSA account for the helicopter ride? Does anyone have $70,000 in their HSA?

Leah Litman I mean, maybe if Harlan Crow is willing to transfer or Venmo some money.

Melissa Murray That’s how it all comes together to survive in this culture of life, right? You need an emotional support billionaire. You do.

Leah Litman With a PJ.

Melissa Murray You need a PJ. You need an emotional support billionaire just to survive in this post Dobbs landscape. And again, this is all because of the United States Supreme Court and its 2022 decision in Dobbs. Once you remove the firewall between government interventions and reproductive health care, there aren’t any guardrails that can stop the government from dictating what kinds of reproductive health interventions are available. And that’s just the unfortunate consequence of overruling Rose. So we just wanted to take a moment to acknowledge all of this. And to be very clear, there are some people who are actually really happy with Dobbs and the landscape that it has cultivated. And specifically, there is this one guy, the former guy who appointed the justices who gave us Dobbs, and he’s super ecstatic about the current state of affairs.

Clip For 54 years, they were trying to get Roe v Wade terminated, and I did it, and I’m proud to have done it. If it weren’t for me with Roe v Wade, you wouldn’t even be talking about this up. You wouldn’t be asking that question. Many people have asked me what my position is on abortion and abortion rights, especially since I was proudly the person responsible for the ending of something that all legal scholars both sides wanted and in fact demanded be ended. Row v Wade.

Kate Shaw And not to be outdone, vice presidential hopeful JD Vance got himself off the couch to suggest a federal response to the prospect of women fleeing to blue states for reproductive care.

Clip Let’s say Roe versus Wade is overruled. Ohio. Ohio bans abortion. You know, in 2020 to 20, let’s say 2024. And then, you know, every day George Soros sends a 747 to Columbus. That’s a load of disproportionately black women to get them to go have abortions in California. Of course, the left will celebrate this as a victory for diversity. That’s kind of health justice health. Justice is only. Exterminate. That’s right could cost black people. Yeah. Something. Really? Yeah. Something like that could. I mean, that would be a really weird turn of events that could happen. Yes. And it’s like, if that happens, do you need some federal response to prevent it from happening? Because it’s really creepy. And, you know, I’m pretty sympathetic to that, actually. Yeah. I mean, I certainly would like abortion to be illegal nationally.

Leah Litman So President Biden supported reproductive freedom, but his advocacy, I think, sometimes struck people as quite tentative. Julie, Fatima, how do you think Vice President Harris has done or will be on this issue? Is reproductive freedom going to play a bigger role in this campaign? And do you have a sense about her running mate, Governor Tim Walz, on these issues?

Fatima Goss Graves Well, it was Vice President Harris who launched an entire reproductive freedom tour just this last year, where she has been on the ground in community. It was her. She’s the first vice president or president to actually go to an abortion clinic.

Leah Litman And at that abortion clinic was Governor Tim Walz, who met her there.

Fatima Goss Graves Well, that’s I mean, this is the other thing with, Governor Tim Walz. He it is not just his work around reproductive freedom. It’s not just that Minnesota passed the first abortion expansion law in the in the wake of Dobbs. If you listen to the way he talks about it, he gets it. He also gets that it’s not just a problem for some poor women to figure out. He talks about reproductive freedom broadly. It’s it’s exciting.

Melissa Murray Well, can I maybe make the observation that this is not necessarily a reproductive rights ticket? And I see that with the recognition that reproductive rights has largely been focused on access to abortion and contraception and avoiding pregnancy and avoiding parenthood, whereas I think a bigger frame is reproductive justice, which talks about avoiding parenthood, but also embracing it on your own terms. I think Vice President Harris, even when she was the AG in California, had a much more capacious frame. You know, she was suing crisis pregnancy centers for defrauding pregnant patients. She was talking about maternal mortality and morbidity. And Governor Walz has talked about a range of issues. I think that’s sound in the register of reproductive justice. So access to IVF. He’s talked about his family’s own journey using IVF to start their family. He’s talked about the need for sensible gun control laws, which is a reproductive justice issue, how you parent your children. He started universal school lunches in Minnesota like that. Kind of economic security is also a reproductive justice issue. So is this the first reproductive justice ticket we’ve ever had in the United States?

Fatima Goss Graves Can I also add that he’s a care champion that Minnesota passed paid leave under him? Yes. I mean giant investment in child care and is making the connection. So maybe I mean, maybe we need to move from this narrow idea and actually make the language match the ticket that is there.

Leah Litman And I think Vice President Harris has also kind of been on the forefront of championing, like the caregiving agenda and support for caregiving, right?

Fatima Goss Graves No question. She talks about it from a personal perspective. But when she was in the Senate, she was the lead sponsor of the Domestic Worker Bill of rights. She was the lead on maternal health care. She these weren’t she’s not new to this, right. She started this long record.

Julia Kaye Yeah. And even in the context of abortion, VP Harris has committed to ending the discriminatory ban on insurance coverage for abortion, known as the Hyde Amendment. And that is so critical. If we do find ourselves in a scenario where we have both Congress, both chambers of Congress, and the white House held by politicians who support reproductive freedom, I don’t think we can assume that federal protections for abortion access will just, you know, we’ll just snap our fingers and they’ll be passed. We certainly cannot take for granted that any federal protections that are enacted will ensure that abortion care is really accessible for all the communities for whom abortion has historically been pushed out of reach. Our, you know, low income communities, people of color, folks with disabilities, young people, immigrants. And I think we need to be planning on holding these folks feet to the fire that holding the politicians feet to the fire to make sure that any protections that are passed are really meaningful for everyone.

Leah Litman And I think that’s part of the. Goal in this upcoming election is to actually have an administration who you can pressure, right to mobilize, right to organize against and forward, to get them to do the right thing versus like having someone who is just going to do whatever the FDA want, right? And ignore all of the, like, shrill women.

Fatima Goss Graves Right? This is our job, right? We start off with the idea that our job is to push for more.

Kate Shaw Coal agrees, by the way like very strongly hard agree. So that was sort of an unusually uplifting couple of minutes in terms of what, you know, if we dream big and imagine big, like what government actually could look like. But it’s also really important to remember that things could always get much, much worse. And I think that helps underscore the stakes of this, you know, upcoming election and more broadly. So let’s talk a bit about what the next frontier for reproductive rights and justice could look like. Like what? I guess in addition to the things that we’ve already canvased, what are you most worried about, sort of being on the horizon?

Kate Shaw I think we need to start with the grave concern that a Trump administration would try to misuse the Comstock Act of 1873 as a backdoor nationwide ban on all abortion care. So, as your listeners may remember, this is an anti obscenity law from the Victorian era that purports to make it a crime to mail anything that’s indecent, filthy or vile or intended for producing abortion. And anti-abortion extremists claim this can be used to prosecute anyone who sent or received any item used for an abortion, even for a lawful abortion. Now, if that were legally correct, which it is not, I want to be clear that that would threaten not just the use of telemedicine for medication abortion, not only medication abortion generally, but all abortion, because all medical equipment and supplies used in health care, as a general rule, are transported and distributed through the mail, like your speculum that your OB uses that is going to be most likely transported or distributed through the mail.

Melissa Murray Let me offer a silver lining, though, Julia. If they start enforcing the Comstock Act, is J.D. Vance going to be able to buy a couch on the internet? That might be the only thing that saves us online furniture sales. Just going to put it out there and.

Leah Litman Fine to say no on it. Totally fine to say no comment.

Julia Kaye I’ll take a pass. I’ll take a pass on that one. But, you know, I think that whenever we talk about Comstock, I’m trying to emphasize that. The antiabortion people. They do not want the public to know about this before the election. Jonathan Mitchell, he of the cottage industry of snooping on and intimidating people who have abortions through vigilante and ex-boyfriend lawsuits. He was caught on record by The New York Times saying, first of all, we don’t need Congress to pass a national abortion ban when we have Comstock. And second of all, that he hopes that Donald Trump and anti-abortion advocacy groups stay quiet about this until after the election. They want to keep people in the dark about their very mistaken legal interpretation, but how they plan to try to get anti-abortion judges to agree with their wrong.

Leah Litman Take two quick things about Comstock. And then for Tim, I will turn it over to you for the kind of stakes and next frontier. So, you know, we in our last segment on project 2025 disaster, Peace Theater noted that project 2025 specifically calls for the enforcement of the Comstock Act. And if you think that this Supreme Court, in the interest of democracy, will save you from a law that was enacted at a time when women couldn’t even vote. Think again. You know, as we saw in the if a presto an oral argument, certain elements of the court are very Comstock curious. So here is one, Samuel Alito insisting that the issue of abortion would be returned to the people trying to be sneaky by referring to the Comstock Act, by its number in the U.S. code, rather than by its name.

Clip Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461?

Melissa Murray He thinks women can’t read and can’t look this up.

Leah Litman It’s numbers. Melissa. It’s way above our lady brains. And here is Justice Thomas also invoking it.

Clip The government, the Solicitor General, points out, would not be susceptible to a Comstock Act, problem. But yea, in your case, you would be. So, how do you respond, to an argument that, mailing your product and advertising it would violate the Comstock Act.

Melissa Murray So the Comstock Act is definitely one of the things that is likely on the horizon. That could be a real problem going forward for reproductive freedom. In addition to Comstock, Fatima, are there other threats that you are looking at that you’re worried about?

Fatima Goss Graves Well, we all have to remember that both the EMTALA case in the present case, they’re not done. They basically said you didn’t file it exactly right. Come back and see us later, conveniently after the election so that that is not done. So there’s that area. But we have to talk about the courts broadly. Right. So Biden-Harris administration, 200 judges have been confirmed. So I don’t know why. Maybe Thomas Alito decide it’s finally time to take a break if there is here is presidency, but they’re definitely leaving if it’s Trump. So the courts are on the table.

Melissa Murray Well, that was grim.

Leah Litman Yeah.

Melissa Murray That makes it a real strict scrutiny. Episode was when Kate was getting all hopeful. It was like, this, isn’t it?

Julia Kaye I thought you were trying to evoke less of a banging, head on wall energy. Good summer vibes. How’s that going with this state of the uterus episode?

Melissa Murray I mean, would it be strict scrutiny if we weren’t literally like, drinking after this episode, just like in a stupor? Like, no.

Leah Litman I have some commentary on one vice presidential candidate. When we get to that next frontier, that may live in things up a little. So I’ll just sat, for a second. But speaking of, you know, the courts and, you know, the next frontier of reproductive justice, I think the Comstock Act is not the only tool that Republicans have on the table for potentially using the courts and evading the democratic process in order to restrict abortion.

Kate Shaw Right. So Comstock is in some ways not the whole ballgame. It’s like a, you know, waystation on the road to, I think, actually the real long term plan, which is the idea of fetal personhood, that would be the idea that the US Constitution recognizes fetuses as rights bearing entities, which would basically require the prohibition of abortion via a judicial as opposed to an executive branch enforcement route. And this is not just speculation. The Republican Party platform actually nods to the idea of fetal personhood. In the section on the issue of life, it says, quote, we believe that the 14th amendment to the Constitution of the United States guarantees that no person can be denied life or liberty without due process. No person to their mind, I think, clearly includes a fetus. So I think that all this to say that the roots are many. So an actual piece of legislation. Banning abortion nationwide. The enforcement of the Comstock Act to render inaccessible access to abortion everywhere, or the use of the courts to enshrine the idea of fetal personhood within the Constitution. You know, those are in some ways that last one, as I just alluded to, is the most maximalist. Right up. Fetal personhood as a constitutional imperative renders, you know, the rest of this rather immaterial.

Melissa Murray They have a mechanism for every branch of government.

Kate Shaw They just need to control, you know, at least one. And in many ways, they do control the federal courts. They certainly control the Supreme Court, whether there is a majority for fetal personhood. Right now, I do not know, but I’m sure there are a couple of votes, and I certainly wouldn’t rule it out.

Fatima Goss Graves I actually think it’s not as far away as we are describing. I think they have been planting the seeds, and we’re going to see it come up again and again, not just in the States. We’re going to see it come up in the tax fight. We’re going to see it come up in conversations around child care. They are going to continue to plant these seeds.

Julia Kaye Yeah, 100%. Personhood feels sort of like we are the frogs in the pot and they are boiling us. You know, many states already enshrine fetal personhood language into law in some capacity. We talked earlier about the Alabama Supreme Court’s decision on IVF. Back in 2013, the Alabama Supreme Court held the state’s chemical endangerment law, which was created to prevent children from being brought into meth labs. That that statue could be used to arrest and prosecute pregnant people who are struggling with addiction or who, say, take a prescription medication prescribed to them by their doctor. And prosecutors in the state have built on that ruling to arrest pregnant people for a huge range of activities that would not be criminal, but for the fact of their pregnancy. So we are already living in this world. And when the Alabama Supreme Court extended this philosophy from intrauterine pregnancies to frozen embryos, I just want to note that they did that based on a constitutional amendment that Alabama enacted in 2018, endorsing the sanctity of unborn life and the rights of unborn children. So we’re already seeing the consequences of this language.

Melissa Murray [AD]

Leah Litman And still there is more that a second Trump administration could do to the landscape for reproductive rights and justice. Fatma, you already alluded to I’m taller. So it’s not just that the M taller case is going to proceed after the election. It is possible that a Trump administration could attempt to rescind protections of I’m taller and say I’m taller doesn’t actually apply to guarantee life health saving care in emergency rooms when that life in health saving care is Impala. And that’s something that project 2025 also calls for.

Fatima Goss Graves Yeah, they’ve been very clear. I know there’s this effort right now to try to be like, I’ve never met these project 2025 people who who aren’t.

Leah Litman Part of 2025 don’t know where to who.

Fatima Goss Graves But they’ve been really clear there in terms of that roadmap. And so I think both in Tala and Mister Stone, in the decisions that were initially agency level decisions are on the table and they’re also on the table. I actually think we’re going to continue this fight no matter who is president. Right? That is a thing that that I think is in front of us. Do you want Jonathan Mitchell leading the Department of Justice and deciding not to defend these rules? Or do you want whoever the Harris A.G. doing that work?

Julia Kaye I just want to make a quick side note on the court’s non-decision on EMTALA while we’re talking about it, and this was about avoiding a ruling on abortion during an election year against the backdrop of a public that overwhelmingly opposes throwing doctors in prison for protecting their patients health, lives and fertility. I want to rewind to 2020, when my colleagues and I at the ACLU sued the Trump administration on behalf of the nation’s leading medical association for Ob-Gyn and other leading health care groups and sisters, Young Women of Color, reproductive justice collective. And in that case, Acog, the FDA, we challenged the Trump administration’s decision to expose mifepristone patients to entirely needless Covid 19 risks by requiring them to pick up their pill in person at a hospital, clinic or medical office. Even as the federal government was taking unprecedented measures to reduce the need for in-person health care visits for every other medication, including fentanyl. And we want API, including fentanyl. We want API in the summer of 2020. Trump’s DOJ went up to score this on a state petition, and the court sat on it. And then in October of 2020. So Mark that date punted on it, sent the state petition back down for further factual development over whether relevant circumstances relating to the pandemic had changed. So we go back down, and during the winter of 2020, the nation’s leading epidemiologists and public health experts explained that the relevant circumstances had indeed changed dramatically for the worse, with Covid deaths up triple or quadruple what they were in the summer when we’d won that pie. We go back up to the Supreme Court with this enhanced factual record that they’d asked for, which shows an even greater basis for the district court’s conclusion. Yet in January of 2021, the court ruled against us. And clearly in that case, that was what they always intended to do. So the only plausible explanation for the court’s punt in this abortion case in October of 2020 was that Amy Coney Barrett’s confirmation hearings were underway and the presidential election was around the corner, and it would appear that the court did not want bad headlines about how it was greenlighting the Trump administration’s latest attacks on abortion patients. So I think that the cynicism is well-founded.

Kate Shaw It’s such an important reminder, and I think it’s just it’s true. In both of these cases, the court dodged in both EMTALA and the mifepristone case this fall. And yet the back story of both cases involves the Supreme Court both manipulating the calendar and exposing women to unnecessary health risks at earlier stages of the litigation. And on the shadow docket, when the court did not think it was going to be subject to public scrutiny. But that is just as important as the non decisions the court just handed down this past spring. So thank you for that really important reminder.

Leah Litman And Fatima, I want to go back to something you said, which is about what a Trump administration might do to if a stone and medication abortion, because Donald Trump gave an interview to Time back in April of 2024. And this interview should have made more news and should still be talked about, because in that interview, he was asked whether he would veto a federal abortion bill. He refused to say yes. He was asked, do you think women should be able to get the abortion pill mifepristone? To which he said, quote, well, I have an opinion on that, but I’m not going to explain. I’m not going to say it yet, but I have pretty strong views on that, and I’ll be releasing it probably over the next week. End quote.

Melissa Murray Narrator voice. That was in April.

Leah Litman Yeah. And he took the same approach when asked directly about the enforcement of the Comstock Act. He described that as a, quote, very important issue that he feels very strongly about. And Trump recently gave a presser in which he confirmed he’s interested in having the FDA revoke the agency’s approval of the Stone and take it off the market.

Clip Would you direct your FDA, for example, to block access to him in the press? Sure. You could. You could do things that will be, would, would supplement. Absolutely. And those things are pretty, open and humane.

Leah Litman And, you know, I think it was in another interview when he said he was looking at contraception bans. And if you think that’s unlikely, it is important to remember that Senate Republicans blocked a bill protecting access to contraception. And so these are just some of the things that, again, they floated there out there that could change dramatically.

Fatima Goss Graves You know, it’s hard because abortion access is popular. And over and over again, when voters have a chance to show up directly on it, it’s popular. So they are stuck with this unpopular agenda and they’re expecting us to actually move forward. But I actually think he’s sort of like, don’t worry, I’m going to be up enough. Dictator. Just trust me on it. You’ll be okay. I don’t feel okay.

Leah Litman No. I don’t either.

Melissa Murray So speaking of unpopular agendas that they’re just going to force through by either judicial fiat or executive order. Let’s move from the top of the ticket and look to the second in command. Kate has already mentioned JD Vance, and yes, JD Vance is very, very definitely not in favor of women exercising bodily autonomy. But let’s, for the sake of argument, kick the couch cushions and get a better sense of JD Vance’s views on abortion. So in 2021, JD Vance compared abortion to wait for it slavery. Awesome. He also announced that he opposed exceptions in abortion bans for rape and incest, saying it’s not whether a woman should be forced to bring a child to term, it’s whether a child should be allowed to live, even though the circumstances of that child’s birth are somehow inconvenient or a problem to society. Here’s some audio of him referring to rape and incest as inconveniences.

Clip Should a woman be forced to carry a child to term after she has been the victim of incest? All right, look, my view on this has been very clear, and I think the question betrays a certain presumption that’s wrong. It’s not whether women should be forced to bring a child to term, it’s whether a child should be allowed to live, even though the circumstances of the child’s birth are somehow inconvenient or a problem to the society.

Melissa Murray He’s also said he would be totally fine with federal restrictions on abortion, and he’s also called for enforcing the Comstock Act as a federal abortion ban. He’s voted against a federal bill to protect IVF. And very famously, he has criticized the quote unquote, childless left.

Leah Litman Narrator voice it me like he said, you know, quote, we are effectively run in this country via the Democrats, via our corporate oligarchs, by a bunch of childless cat ladies who are miserable at their own lives and the choices they’ve made. And so they want to make the rest of the country miserable, too, unquote. And then called out Vice President Harris, Representative Alexandria Ocasio-Cortez, Paul Krugman, and then later he said he had nothing against cats. So helpful, so helpful.

Julia Kaye The clarification we were all desperate for.

Leah Litman Exactly, exactly. He has called for taking voting power away from people who do not have kids.

Clip When you go to the polls in this country, as a parent, you should have more power. You should have more of an ability to speak your voice in our democratic republic than people who don’t have kids. Let’s face the consequences and the reality. If you don’t have as much of an investment in the future of this country, maybe you shouldn’t get nearly the same voice. Now people will say, and I’m sure The Atlantic in the Washington Post and all the usual suspects will criticize me about this in the coming days. Well, doesn’t this mean that non-parents don’t have as much of a voice as parents? Doesn’t this mean that parents get a bigger say in how our democracy functions? Yes, absolutely.

Leah Litman And he generally seems to have a problem with women having jobs. So like he just has these weird as fuck tweets. I want to know one from 2020 where he said, quote, as a parent of young children and a nationalist who worries about America’s low fertility, I can say with confidence that daylight savings time reduces fertility by at least 10%.

Melissa Murray And he’s telling on himself, that’s a different story. Just a narrator voice intervention. JD Vance met his wife, Usha, at Yale Law School, where she was his much more successful classmate who went on to clerk for three federal judges, two of whom are on the Supreme Court right now. So I’m not sure why he’s so in favor of this sort of antiquated model of the traditional family, and why he doesn’t like the whole idea of women being in positions of authority. But this is the guy. This is the guy that Donald Trump has selected as his second in command, one heartbeat away from the presidency.

Leah Litman I just need to voice like the shivers and creeps and heebie jeebies that JD Vance gives me. Like the fact that he is talking about Daylight Savings time in terms of baby protection and fertility is bizarre. It is creepy. I don’t want him thinking about all of the people in the country in those terms, and like the picture and video of him following Vice President Harris around the tarmac, saying he’s going to have her plane like he is every fucking guy who won’t leave. Leave you alone at the gym. The grocery store. The bar. And now he wants to commandeer, like, all of our rooms. Like it is. It’s creepy. It’s weird, I just. It gives me the yuck it.

Fatima Goss Graves I mean, the stalking on the tarmac for me, it actually brought me back to Donald Trump stalking Hillary Clinton at the debate. It just it does give me a little bit of the shivers and weirdness of you’re like, you’re in my space, dude. And nobody wants to hear that. And like, don’t, don’t, don’t tweet that about daylight savings, because I don’t want to I don’t want to wake up and think about that. And I actually don’t want you waking up and thinking about it for me. Like, I don’t want JD Vance being the one to determine when and how I have children, when and how anyone else has children. Can I just say one thing about the work thing? It’s it is like work for XI, but not for the. So I think that’s my challenge here that it is either he deeply believes all of these things and they’re strange and weird and we should be worried and scary, or he thinks he needs to change with the wind because he thinks the wind is telling him, women want our lives to be trad wives.

Leah Litman Or he thinks he’s exempt, right? Right. From like, the rules that he sets for everyone else.

Kate Shaw Also possible. Yeah.

Leah Litman Like he is the living embodiment of the ladies always choose the bear.

Melissa Murray Always choose the bear. A.lways JD Vance or the bear? The bear.

Leah Litman Even if it’s a fucking skinned carcass bear that RFK Jr like put in Central Park. Choose the fucking bear.

Kate Shaw He didn’t skin it. He intended to skin it, but dumped it before actually executing.

Leah Litman He just hasn’t confessed to that part yet. Kate.

Kate Shaw Also, possible.

Fatima Goss Graves No one has time for skinning the bear.

Melissa Murray Not when they’re churning butter and milling their own flour because they’re trad wives.

Kate Shaw That’s true.

Leah Litman And yet, like the Republicans are the ones calling Tim Walt creepy because he wanted to provide sanitary pads and tampons for kids. And JD Vance literally wants like and like his friends want, like, genitalia checks on children and like, menstruation checks on 12 and 13 year olds to see whether they’re pregnant or had an abortion. Like, I just sorry, I’m getting increasingly agitated.

Kate Shaw No. The Tampon Tim moniker is the most perfect distillation of the profound, violent misogyny at the core of the GOP right now, to suggest it is somehow problematic to facilitate free tampons for kids in schools who need them is like, what is wrong with these people?

Melissa Murray Because it’s part of the transphobia? Like, I mean, again, the whole idea here is that it’s not that he provided sanitary napkins and tampons, it’s that he put them in boys restrooms as well as girls restroom. Like, here was the thing, it was about menstrual equity. And guess what? Sometimes boys have mothers who can’t afford sanitary napkins, and maybe making them available in a school allows those women to have access to it. Maybe you have young women who are transitioning and they’re using the boys bathroom because they identify as male, but they’re still menstruating. I mean, like this. All of these things could be true. And why the fuck do you care? Yeah. Like, seriously, two weeks ago, you were taping sanitary napkins to your fucking years because Dear Leader survived an assassination attempt like this is insane. So I really hope that the Harris Walz campaign make tampon Tim shirts and then put on the back, stopping the red wave since 2024.

Fatima Goss Graves I need that shirt.

Leah Litman If he is tampon Tim, like, JD is like, just die fucking ladies advance, right? Like there are worse things. There are worse things to be than Tampon Tim.

Melissa Murray I mean, Tampon Tim. He’s adorable. FYI, I like just I.

Leah Litman I love him.

Melissa Murray  He’s so cute. He’s like, Santa Claus.

Julia Kaye So joyful.

Melissa Murray He’s so joyful.

Kate Shaw Just like the stories that just keep a pig all over social media. The images, the pictures, the piglets. Excellent. I saw someone referred to in his avuncular fanfic which like, even if it is fanfic, I don’t care. I love it. And you know, I don’t think actually most of it is. It all seems to be like he’s a genuine mensch and we need that.

Melissa Murray Coach Wells.

Kate Shaw Yes.

Melissa Murray Clear eyes. full hearts can’t lose.

Leah Litman Minnesota forever.

Kate Shaw If, like if Connie Britton has not cut a campaign ad yet she really needs to.

Melissa Murray Hot dish in every pot. We need her making a hot dish that indeed.

Kate Shaw Maybe. Let’s pivot just for a minute, because we’ve obviously been talking about the top of the ticket, the presidential election and its stakes. But before we leave this conversation, can we ask both of you for Tim and Julia to weigh in a little bit on where things stand in terms of abortion being directly on the ballot in. A number of states. Obviously, abortion and reproductive rights and justice broadly are on the ballot in terms of the politicians that we are going to be asked to choose between. But at the time of our recording, up to almost a dozen states might have abortion on the ballot. I think that’s definitely going to be the case in six states. And there are efforts underway that might result in abortion being on the ballot in a number of other states. Fatima, you mentioned earlier that, yes, like abortion access is popular. Every time voters have gone to the polls post Dobbs, they have voted to protect end rejected efforts to restrict access to abortion. So do you think how important a dynamic do you think that is going to be in this upcoming election in the states where it’s on the ballot, recognizing that that’s a limited number? And for a lot of people, there just isn’t going to be the, you know, state mechanism in place to actually vote directly on abortion.

Fatima Goss Graves So it’s on the ballot in those states in at least six states. And I think it is a thing that people are clear about and will turn out for. But I actually think people understand it is on the ballot everywhere. And that that is what is important, because the truth is, Harris as being clear that she knows that she will have to pass a bill that is an abortion rights and access bill if they have the power to do so. So that is what is on the ballot. And I actually think for all of us in this period, we are joyfully reminding everyone that our expectation is that if they have the power to do so, they are going to pass the biggest, baddest bill possible.

Julia Kaye Yeah, I’ll just add that. I think that the dirty tricks we are seeing from abortion opponents in the states where abortion is either already confirmed to be on the ballot or there’s an effort underway to get it on the ballot. I think that shows how scared they are. They do not want this question put to the people because they know what the outcome will be. I mean, talking about a bright spot in an otherwise pretty dark, you know, retrospective year, Ohio enshrined state constitutional protections for abortion this year. Ohio. That is phenomenal. And, you know, of course, the litigator groups, we are at work now using that amendment to full effect to eliminate bans and other medically unjustified and harmful restrictions on access. You know, likewise in Michigan. So when we’re seeing these kind of tricks, like in Florida, where they’re trying to manipulate the financial impact statement to make also, you know, use all sorts of anti-abortion talking points. They are doing this because they are running scared. And because even though, of course, Dobbs said, we’re just going to leave this question to the people, they don’t want that to be the case.

Melissa Murray Well, they meant the people are fetuses. That’s the problem. Like leave it to the fetus, right?

Leah Litman My people. They just meant men, and specifically Republican men and the Republican men on the Supreme Court. So, like, why.

Fatima Goss Graves Why are women voting?

Leah Litman Right?

Melissa Murray And if they are voting, why aren’t they telling their husbands about how they’re voting and seeking his guidance and casting a vote?

Leah Litman Well, we managed to take that, ballot initiative, and turn it for the worse. Fatima and Julia, I would love to put it to you for any kind of closing or overarching thoughts you have on the first annual state of the uterus slash third annual Dobbs retrospective.

Julia Kaye I just cannot resist emphasizing one point about misinformation, because I think that is what is underlying so much of the bad policy and the bad law that we have, spent the last hour discussing. This in some ways is nothing new. Of course, for decades, restrictions on reproductive health care have been justified based on demonstrably false lies. And we’ve seen courts uphold those kinds of things. But it feels to me like it’s reached a fever pitch in the last year. And, you know, of course, that line for Hippocratic medicine suit is a prime example of this. So I’ve been thinking a lot about the fact that Doctor Ingrid Scop, who was the star of the Fifth Circuit’s decision there, cited 17 times by the Fifth Circuit, even though this is someone whose testimony on abortion was thrown out by Florida court two years ago for being inaccurate, even though her research has been retracted. Even though this is someone who admitted in a deposition four years ago that she relied on the website abort 73.com for a so-called expert opinion because she is, in her words, not a really good researcher. So this is who Doctor Scott is. And yet Texas just appointed Scop to the state’s Maternal Mortality Review Committee, which holds the essential public health role of investigating causes of death during pregnancy and postpartum, and writing recommendations to prevent deaths in the future. They want to elevate her very dangerous opinion. So with apologies for ending on a kind of a bleak note, hopefully someone can spin it after this. I just think we need to stay very vigilant against these efforts to institutionalize junk science, misinformation, absolute bullshit, and then use it as the foundation for harmful policies that are going to cost people their lives. And that’s no exaggeration.

Melissa Murray Hopefully, this election cycle will allow the United States populace to be better readers, or just the Fifth Circuit would be good in the state of Texas. But for TMI, maybe we could go to you, and perhaps you could offer up a hopeful note to end this state of the uterus. Don’t tax yourself. But if you could.

Fatima Goss Graves Well, we started out really grim. I and I sort of felt like I almost needed, you know, a cocktail by my side to get through it, but I, I will say I am excited about what is possible going forward. I hope next year’s retrospective is one, changes at the federal level of courts that look different and something that gives us some promise and possibility. So that’s what I’m holding on to. That’s what I’m leaving this conversation with.

Melissa Murray We very much appreciate you, Julia Kaye and Fatima Goss Graves. Thank you so much for making this first annual state of the uterus third annual Dobbs retrospective. Such a smashing success. I’m going to do like Nancy Pelosi right now and rip up the state of the uterus in the hope that we can have something better going forward.

Julia Kaye Thanks so much for having me on today.

Fatima Goss Graves Thanks for having me, guys.

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollock. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donahue. We get audio support from Kyle Seglin and Charlotte Landes with music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and we are very grateful to our digital team, Phoebe Bradford and Joe McCuskey. You can subscribe to Strict Scrutiny on YouTube to catch full visual episodes, and you can also find those episodes at youtube.com. Forward slash strict scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny on your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

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