Texas v. Roe with Alexis McGill Johnson | Crooked Media
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September 28, 2021
America Dissected
Texas v. Roe with Alexis McGill Johnson

In This Episode

Abortion bans don’t stop abortions, they just make them less safe. Not only does Texas’s Draconian new abortion ban violate the reproductive rights of millions of people in Texas, it empowers abortion bounty hunters to do what government should not. Abdul talks about the dangerous precedent Texas’s law sets, and speaks with Alexis McGill Johnson, President and CEO of Planned Parenthood about what comes next.





 [sponsor break]


Abdul El-Sayed: The FDA and CDC authorized Pfizer vaccine boosters for people over the age of 65, immunocompromised people, and those with high-risk of exposure to COVID-19. In good news, new modeling suggests that COVID cases may steadily decline through March. A new battle is brewing over how the $3.5 budget reconciliation deal, if they can pass it, may change health care, with Democrats fighting over whether it should expand Medicare or shore up the Affordable Care Act. This is America Dissector. I’m your host, Doctor Abdul El-Sayed. Last week, Dr. Alan Braid performed a medical procedure for a woman who had requested it and given her consent. That, a doctor caring for a patient who requested it, shouldn’t be news. But here we are.


[news clip] First lawsuits have now been filed under Texas’s new Heartbeat Act. The suits filed against a San Antonio doctor who admittedly kept providing abortions past the sixth week of pregnancy, not allowed under the new law.


Abdul El-Sayed: Dr. Braid performed an abortion. A new Texas law bans abortions after six weeks, when most people don’t even know they’re pregnant. Dr. Braid now faces lawsuits for performing a constitutionally-protected procedure. In medical school, I got to spend a Saturday morning at a Planned Parenthood clinic. There, I spent the morning with a young woman who was making a choice about whether or not to abort an early pregnancy. What I came to understand is that it’s never an easy decision, and it should never be a decision made by anyone but a pregnant person and their doctor. The other thing I learned is that an abortion isn’t an abstract thing, something to be discussed in theory—it’s extremely personal. That’s because pregnancy and childbirth are anything but abstract things. Ask anyone who’s ever been pregnant. It’s a 40-week journey that fundamentally transform someone’s body and someone’s life. In fact, pregnancy is one of the most dangerous things a person can do. For most of human history, it was one of the leading causes of death, and the only reason it’s become safer is because of massive improvements in health care during pregnancy and childbirth. That includes abortion. Even now, maternal mortality is exceedingly high among Black women in this country, who die at four times the rate of their white counterparts. To argue that abortion isn’t health care is to do the absurd thing and argue that pregnancy and childbirth have nothing to do with health. And the only way you can do that is to dismiss the humanity of the people getting pregnant in the first place. Anti-abortion activists tell us they’re, quote unquote, “pro-life.” Well, what about the life of the person getting pregnant in the first place? Or has that human being become simply a vessel for the life you seek to protect? It’s not just that this abortion ban conveniently disposes with the humanity of millions of people, it also conveniently disposes with the rule of law. See, abortion is still protected under the US Constitution, at least in theory. But the Texas law is deviantly clever, bypassing traditional enforcement. The law leaves enforcement to bounty hunters, rather than the government, who can sue anyone who age or abets the procedure for up to $10,000 plus legal fees. Because the state doesn’t, in fact can’t, enforce the law, it’s nearly impossible to challenge in court. It’s because the law doesn’t ban abortion in theory, only in practice. In theory, you can still get an abortion in Texas. Nobody’s going to stop you. It’s just that the legal consequences functionally bankrupt abortion providers, rendering it nearly impossible to do. The consequences for reproductive rights in this country are staggering. Already, GOP-controlled states across the country are racing to pass similar laws. At the outset, I told you about a doctor who provided health care to which his patient consented, who is now being sued by bounty hunters, deputized by the state for the care he provided her. This is the new normal the law is creating. Make no mistake, this law is not going to stop people in Texas from getting abortions. The folks who can afford it will just go elsewhere, and those who can’t, well, they may still get abortions, they just won’t be safe abortions. And unsafe abortions, they can kill you. Today, I wanted to talk to one of the leaders of the fight for reproductive rights in this country. Alexis McGill Johnson is the president and CEO of Planned Parenthood and Planned Parenthood Action Fund. Not only is Planned Parenthood leading the fight for reproductive rights, but they’re one of the leading providers of family planning services in this country. She’ll talk to us about the consequences of the Texas ban, and how we fight back.


[ad break]


Abdul El-Sayed: Perfect. I am recording. I’m recording, let me just find my Zoom screen. OK, all right, let’s get started. If you can introduce yourself for the tape.


Alexis McGill Johnson: Alexis McGill Johnson, President and CEO of Planned Parenthood Federation of America.


Abdul El-Sayed, narrating: Planned Parenthood has been leading the fight for reproductive justice in this country for decades, operating more than 600 health centers around the country. They walk the walk on family planning services. Their president, Alexis McGill Johnson, is one of the fiercest advocates for reproductive rights in the country. I wanted to speak with her to understand what the consequences of the Texas abortion ban might be, and where we go from here on the fight for reproductive rights.


Abdul El-Sayed: Thank you so much. And I really appreciate you joining us in a moment like this one. We know that reproductive rights in this country are under attack and you’re leading the fight. And we really appreciate you taking the time to chat with us and inform us about the state of that fight, the history of that fight, and where we go from here. If you can just give us a brief history of reproductive rights in America and how we got to this moment.


Alexis McGill Johnson: Yeah, well, first of all, thank you so much for having me. It’s a pleasure to be here because it is so critical to communicate to as many people as possible the fight that we are in right now. I know that for someone who was born in 1972, you know, these are rights that I have always taken for granted because they have always existed for me in my lifetime. And I think a lot of the folks that I talked to who are my age, just a little older or younger, tend to think that this is a fight more of a 20th century issue, right! You know, when we think about the fact that back in the day there are people who are living right now who can remember a time when they couldn’t open a bank account in their own name without their husband’s permission, they couldn’t access birth control without their husband’s permission. There were landmark cases that actually allowed those rights to be conferred. In the same way, it’s important to remember that our history of forced labor and forced reproduction in this country—you can’t quite separate the fight for reproductive rights from the fight broadly for freedom. When I think about reproductive rights movement in the US, it really is just a long history of people wanting to have autonomy over their own bodies, control over their own futures. And I think that’s why in our current fight, the way in which the movement for reproductive freedom has intersected with movements for civil rights, movements for immigrant rights, for LGBTQ rights—because they are all or about how we fight for our body and our freedom.


Abdul El-Sayed: Hmm. And I really appreciate that context, right, because it’s easy, I think, for us to be thinking about these issues as abstract, as if reproductive rights and reproductive health care are abstract things that sort of exist in the ether. And instead, they are about a series of individual decisions of grave import to people who experience them. And when we treat them as abstract rather than as implicit in the bodies of real people, what we do is we forget the humanity of those people whose bodies are on the line. And you know, what a lot of the opponents of reproductive rights seem to think or seem to bias are the rights of an unborn fetus over the rights of a person who is pregnant in the moment. And as, I remember very clearly in medical school, all of the things that can go wrong and do go wrong during pregnancy, and the notion that that suffering and those experiences are something that we can toss aside, I think is something that we all should be stepping back and asking what the consequences are of doing that. And the last point is that we can’t forget the fact that Black and brown women, particularly Black women in this country, are still three to four times as likely to die in childbirth, a function of pregnancy. And to say that, you know, abortion is not health care is to dismiss the danger of that thing. So I really appreciate that context. What is Roe v. Wade? I think we all talk about Roe v. Wade as that thing that protects abortion rights but I think sometimes, again, we forget what this is and the nature of how it sits in the scheme of American public policy. What is it and how does it protect abortion rights?


Alexis McGill Johnson: Yeah, absolutely. You know, look, Roe v. Wade is the case that gave people who could become pregnant the constitutional right to access safe and legal abortion in 1973. As you know, abortion, like birth control, has its ancient roots in cultures all over the world but by 1900 in the U.S., abortion was legal in every—illegal, rather, in every state. And what Roe did in this landmark case really over the last 50 years when it became law of the land, it establishes the right essentially for us to make decisions about our own bodies, you know, and essentially ensures that lawmakers—ideally—lawmakers are not actually the ones who are determining our future, when we can become parents. You know, Roe, I would also say, is imperfect, even though it has been a critical, I would say, floor for our freedoms. But having the right hasn’t necessarily translated into having access across the country in an even and consistent way. But it is essentially the federal protection that allows us to ensure that we have the right to determine when and if we become parents.


Abdul El-Sayed: And what would be the consequences of Roe, of Roe falling? You know, just for folks who don’t pay attention to this day to day, we have this precedent and there’s almost a two-pronged attack against abortion rights. One is the Texas law—which we’ll get to—and one is a full frontal assault on Roe itself. So in all of this, in the context of a 6-3 Supreme Court that was packed by Republicans in a very directed way, withholding the constitutional right to appoint a Supreme Court justice from President Obama and then packing the courts under Trump—so how would Roe falling impact the health and well-being of millions of people in this country?


Alexis McGill Johnson: So, you’re correct. Roe has been under attack as long as it’s been around, but particularly in the last decade, we have seen just an increasing amount of restrictions that limit our access to actually exercise this right. And so it really has been long at risk. Today on 2021, there have been 600 restrictions against abortion that have been introduced in about 47 states, 90 of those have been enacted. And to your point, the Supreme Court has taken up a case to be heard and argued on December 1st, that is Dobbs versus Jackson Women’s Health Organization, which is the first direct challenge to Roe v. Wade that the court is going to hear since Amy Coney Barrett became a justice last October. And so, you know the consequences, because this is a 15-week ban that goes to the central holding of Roe of who gets to make a decision pre-viability, the consequences if the justices determine that Roe is, should no longer be the law of the land and they hereby overturn it, is that 25 million women in 26 states will no longer have access to an abortion provider in their state. It means that people who live in a state like where I am in New York City will be able to, you know, make decisions about their future. It’s mean, the people who live in a state like Texas will be forced into pregnancy if they don’t have the resources to get out of state, if they can’t afford to take the time off from work, the child care, finding child care, the resources for travel, they can’t get an appointment in time—all of these things that push them further along into their, into their pregnancy, those are the things that are going to impact people. And those are the decisions that choices that people are going to have to make.


Abdul El-Sayed: Hmm. That’s a, that is an awful future to think through. And, you know, there are, of course, huge equity dimensions to this because, you know, the people with means will be able to get a safe abortion and the people without them, who tend to more likely be Black and brown and poor, will not. And the consequences are grave over the long term for folks’ well-being.


Abdul El-Sayed, narrating: We’ll be back with more of my conversation with Alexis McGill Johnson after this break.


[ad break]


Abdul El-Sayed, narrating: And we’re back.


Abdul El-Sayed: There’s also this Texas law, right? And this is sort of a rather than a frontal assault on Roe and a direct challenge to the law itself, this law, which is in effect a fetal heartbeat law, has this procedural ability to bypass any sort of legal challenge. Can you speak to this Texas law, how it works, and the precedent that it sets for attacks on reproductive rights in this country?


Alexis McGill Johnson: Yes, absolutely. And I think just to piggyback on what you were saying in terms of the equity implications of both the Supreme Court hearing as well as the Texas law—which I’ll explain in a second—you know, is that the people who have always had resources pre Roe v. Wade were able to get out of the country, they were able to get to a state that that offered access to abortion. But these kinds of restrictions do disproportionately impact low income Black, Latina, indigenous populations because these are all also communities that face the biggest barriers to accessing health care generally. And so when you see people struggling already to make ends meet and then you have these layers of restrictions on it, it creates such a, such a profound disparate impact. And what it doesn’t do right, what none of these bans do, is actually stop people from seeking access to abortion. So, it is really just that the cruelty and the impact there that is so important. And Texas takes that cruelty to a whole new level, right? So Texas passed a law called a Senate Bill 8, SB8 is how we frame it. It is extremely challenging for patients to access abortion in Texas. It went into effect September 1 of 2021. Forr years Texas state politicians have been taking extreme measures to undermine access to abortion. So instituting barriers like 24-hour waiting period, state mandated biased counseling, forcing patients to have ultrasounds, and even banning medically recommended abortion procedures. But what SB8 does is it’s a six week ban, right, which is timed exactly when kind of electrical impulses that they are calling cardiac activity come into play. It’s two weeks after a missed period when most people, many people don’t know that they may already be pregnant. And it puts a ban. And instead of actually—normally when you have an unconstitutional ban, right, because this ban does violate the constitutional protection under Roe v. Wade, you would go to the state and you would sue in court and you would have it overturned as all pre-viability bans have been. What Texas did was they added this provision that empowers vigilante bounty hunters and incentivizes them to surveil and harass people, right? This bounty that anyone, except the patient, who is involved in the provision of abortion in Texas after six weeks will have to pay a fine that is enforced by private citizens of $10,000. And so I can tell you that we’ve already seen in our clinics, our health centers, in our parking lots, call centers—increased surveillance, suspicious calls, people taking down tags. It’s just, it’s barbaric. It’s literally like pitting neighbor against neighbor, community against community, all in the name to essentially evade the judicial review that would allow us to strike this ban down because it’s unconstitutional.


Abdul El-Sayed: And what do we see in terms of the the implications of this even beyond Texas? I would imagine that some of these more craven state legislatures are now rushing to pass similar laws. How has that impacted even folks outside of Texas?


Alexis McGill Johnson: Absolutely. I think all eyes are on Texas, as they typically are. Texas tends to be the state that pushes things to the extreme and allows the opposition to kind of figure out what’s working, what isn’t working. What the very chilling impact that has already happened in Texas because of this law and because of this bounty hunter provision is that it has stopped virtually all abortions after six weeks in Texas. And as I mentioned, like 85% of patients to Planned Parenthood come in after six weeks. Right? That is typical. Again, it’s two weeks after this period. You have all of these other restrictions and we’re also in a pandemic, right? So the impact of COVID on this can’t be understated. But these other states, there are about 25 other states that have hostile state legislatures, anti-abortion, anti-women’s health legislatures that are looking to Texas to see if they can essentially copycat this law in their own states. And so that’s the idea that the Supreme Court is actually hearing a case that goes to the, to the central holding of Roe, and yet this Texas ban could create a de facto Roe world if the, if the court lets it stand. And I think that’s the, that’s the really horrific experience that we’re having right now.


Abdul El-Sayed: And we have a test case. There was a physician, Dr. Alan Braid, who performed an abortion, wrote an Op-Ed about it, and there are currently two lawsuits. Can you speak about this particular case and what the implications are of this case?


Alexis McGill Johnson: Yeah. So, again, because of the way the law is constructed, because of this kind of bounty hunter provision, which essentially says that anybody who has provided an abortion after six weeks is liable to a civil right of action, a private citizen suing them, and it could be anyone in any state suing them and trying to get the $10,000 bounty for that. And there’s no limit on how many people can sue, right. So that’s the incentive structure, essentially the, what has created this chilling effect in Texas. But what Dr. Braid did was incredibly courageous, right? He took a risk where he provided a patient with an abortion after six weeks. He wrote about it to be public, in The Washington Post. And we are grateful. That his patient was able to receive an abortion when she needed it. He’s facing multiple lawsuits now from claimants who don’t even live in Texas. They have no connection to Dr. Braid, they have no connection to the patient. They are essentially trying to just also understand, take advantage of a structure and a system that is has really allowed this radical law to take effect. The fact that Dr. Braid had to violate a law to provide a constitutional protection, I think is something that we are incredibly concerned about. And the reality is there are thousands of Texans who are now forced to travel since September 1, hundreds of miles crossing state lines to get access to this right. And we are waiting to see kind of how these lawsuits play out to see whether or not they are struck down as a problematic way of evading essentially, having the state essentially evade enforcing constitutional protections.


Abdul El-Sayed: It is a truly harrowing set of circumstances. You all are leading the fight to uphold reproductive rights and dignity here. I want to hear a little bit about what you’re doing and also what listeners around the country can do to support the effort.


Alexis McGill Johnson: Well, so the law is in effect, right? We are playing this out in the court and fighting it every at every turn. There are multiple lawsuits in state court, federal district courts. The DOJ has been involved in trying to find a way to get this law struck down. Texas health centers are now essentially crisis hotlines. They have been not only unable to provide health care and the support that they’ve been trained to give, they’re also taking phone calls from patients who are scared, who need to put together the resources to travel out of state and that is really the most harrowing, not just logistical, but also emotional trauma and toll that is happening, I think, in Texas. And I think it would be really important for your listeners to understand that on the other side of this novel and devious laws are real people who are struggling to make the decision that’s best for them. Planned Parenthood is here with our partners. We are fighting. We are continuing to fight back. We know that the majority of bans on abortion are deeply unpopular. They are out of step with the American public. There is no state where there is not support for Roe v. Wade, where there’s not majority support for Roe v. Wade. But what we have a lot of states that are being held hostage by these state lawmakers, by a vocal minority of state lawmakers that have consolidated power over the last decade. And I don’t have a crystal ball for how the Supreme Court is going to decide Jackson Women’s Health Organization, but we’re preparing for, whatever the outcome is, and whatever will need to be rebuilt for patients who are seeking abortion and need to get the care that they need while we wait to see whether or not the court decides to overturn or decimate Roe. If it’s not this case, there are 15 other cases that have been winding their way through the court system. We now have a federal judiciary that has been appointed with a number of really extreme justices and so this fight is going to go on for quite some time. And we are going to have to think about what provision looks like and also what that fight back looks like as well.


Abdul El-Sayed: And what ways can can folks out there be supportive of the work of the effort?


Alexis McGill Johnson: You know, I think first, again, it’s really important to support abortion funds, abortionfunds dot org, which are literally funds that are set up to provide those immediate resources for patients who need to get out of state, the ones who face the biggest barriers. It’s really important to support health centers, both Planned Parenthood health centers, as well as, you know, which you could find at PlannedParenthood dot org and you can also find at saveourclinics dot org, which is a resource to support the independent providers in the ecosystem. And I think that the biggest thing that I think listeners can do is really understand what is happening in Texas as not just Texas, that it is actually at all of our doorsteps, it is going to impact all of our health care, and that they really need to understand who their lawmakers are making these decisions and get educated about what they’re seeing in their various bills.


Abdul El-Sayed: Yeah. Well, we really, really appreciate that work. And, you know, the final note that I want folks to appreciate about this is that the folks who are so focused on ending abortion rights, were serious about preventing abortions, they’d be serious about investing in the work that you all do, because everybody knows that Planned Parenthood isn’t simply about abortions, it’s family planning. And the best way to prevent an abortion is to prevent an unwanted pregnancy, which is to invest in family planning. And it’s not like any of these folks are interested in investing in that kind of work. They’re not interested even in investing in an America or a Texas that is supportive of families and children after they’re born. It is simply about this one piece of a broader foundation of reproductive rights and reproductive health care and it shows that it’s not about a serious effort around this issue. It is fundamentally about trying to read an ideological position into the law to take away rights from people around their choice around their own body. And so I really want to say, as someone who you know, during my training, I spent time in a Planned Parenthood clinic, who ran a health department where we were working right alongside Planned Parenthood to invest in family planning, that it is important to remember that this is a broad, highly-contexted issue. It’s not an abstract question. And the folks who go after abortion rights are not doing it in good faith. They’re doing it fundamentally around a vision of a world where some people have rights and some people don’t, and a vision of the world where they get to read their ideological ideals into our public policy and our laws around people who don’t share them. So I really appreciate you leading that fight. I appreciate the work that you all do in your clinics around the country in taking on those who would oppose fundamental rights for people. That was Alexis McGill Johnson. She is the the President and CEO of Planned Parenthood and Planned Parenthood Action Fund. And we really appreciate you taking the time today to walk us through this and to let us all know what we can do to help.


Alexis McGill Johnson: Thank you so much for having me and thank you for your voice on this issue. And we really appreciate all the coverage.


Abdul El-Sayed: Appreciate you.


Abdul El-Sayed, narrating: As usual, here’s what I’m watching right now. Last week, the FDA and CDC ruled on Pfizer’s application to extend its emergency use authorization to offer a third dose. There were three groups in the question: seniors over 65, people with immunodeficiencies, and those whose occupations put them at high risk for exposure. An FDA review panel authorized third doses of the Pfizer vaccine for all three groups, while the CDC review panel recommended them for everyone except those with higher occupational exposure. CDC director Rochelle Walensky overruled the panel and issued a recommendation for all three groups. This back and forth, I worry, has had dire consequences on the most important group to vaccinate, those who haven’t received a first dose at all, whether at home or abroad. As Director Walensky said, we’re not going to boost ourselves out of this pandemic, but we may just vaccinate ourselves. Which reminds us the most important issue here isn’t the booster. It’s about making sure that people trust that the vaccine is safe and effective and get that first and second dose. In good news, a new model that includes data from nine other COVID models suggests that cases could decline consistently through March. That would be great. But a model is only as good as its assumptions. The model assumes that pediatric vaccines will be approved sometime this fall and people will take them. And the big one, that there won’t be a new, more contagious variant. That said, it’s important to remember that every surge reduces the probability of the next one because of the acquired immunity it offers us. Every time somebody gets sick, they’re less likely to get sick in the next several months. Here’s to hoping. Finally on Capitol Hill, a new battle over what health care provisions to include in the $3.5 trillion budget reconciliation package is roiling Democrats. The battle is over whether or not to include expansion of Medicare to 60, as well as better packages of services for seniors, including vision, dental and hearing, or whether to make permanent ACA subsidies that were expanded during the pandemic, and expand Medicaid. Here’s the thing. Both of them are good. We should do both! You know, what would do that? Giving Medicare. To everyone. Medicare for all.


Abdul El-Sayed: Before I go, I want to let you know that we’ll be doing a live taping at the American Public Health Association annual meeting in Denver on October 24th. That’s right: a live America Dissected show. So if you’re going to be at APHA, make sure you plan to join us at six o’clock on Sunday. Oh, and happy birthday to us! We’re celebrating two years this week. As a birthday gift. I’d like you to go and rate and review our show—five stars only, Please, unless we didn’t earn it. Oh, and don’t forget to pick yourself up some two-year birthday America Dissected swag. Go to the Crooked Media store and pick up our new logo tees and mugs, our Safe and Effective shirts, and our Science Always Wins shirts and dad caps.


Abdul El-Sayed: America Dissected is a product of Crooked Media. Our producer is Austin Fisher, our associate producer is Olivia Martinez. Veronica Simonetti mixes and masters the show. Production support from Tara Terpstra, Lyra Smith, and Ari Schwartz. The theme song is by Taka Yasuzawa and Alex Sugiura. Our executive producers are Sarah Geismer, Sandy Girard, and me, Dr. Abdul El-Sayed, your host. Thanks for listening.