The Fall of Roe. Mailbag & Interview with Michigan Attorney General Dana Nessel | Crooked Media
LISTEN TO THE TRAILER FOR DARE WE SAY LISTEN TO THE TRAILER FOR DARE WE SAY
June 28, 2022
America Dissected
The Fall of Roe. Mailbag & Interview with Michigan Attorney General Dana Nessel

In This Episode

Roe v. Wade — the Supreme Court Decision protecting reproductive rights in America for half a century — was dashed last week. Abdul sits down with Prof. Kate Shaw, co-host of Strict Scrutiny to answer your questions about the ruling and its implications for reproductive health. Then he interviews Attorney General Dana Nessel of Michigan — a state with a draconian abortion ban on the books — about how she and her colleagues are working to protect reproductive rights in that state.   

 

 

Transcript

 

 [sponsor note]

 

Dr. Abdul El-Sayed: In a 6-3 decision, the Supreme Court has overturned Roe v. Wade. This is America Dissected. I’m your host, Doctor Abdul El-Sayed. Americans no longer have the right to a safe and legal abortion, according to a 6-3 Supreme Court decision. As a result, abortion is now illegal in nine states, with another 12 states likely to follow suit in the near future. 26.6 million women of reproductive age will lose their right to choose. In another nine states, the right to abortion hinges on the outcomes of the 2022 election. Make no mistake, this is an earthquake for reproductive rights, but also for the sanctity of our democracy itself. I know there’s been a lot written and said about the impact of this decision on reproductive rights, and I know many of you probably have questions about the legal decision itself and its health implications. So today we’re going to do things a bit differently. For the first half of the show, I’ll be joined by Kate Shaw, professor of law at Cardozo Law School, and co-host of Strict Scrutiny. Together, we’ll answer questions submitted by listeners like you about the future of reproductive rights and health. Then I’m joined by Dana Nessel, Attorney General of the state of Michigan, where a 1932’s abortion ban is still on the books. We’ll be talking about the ways that Democratic state officials like her are fighting to protect the right to an abortion, and why this 2022 election is crucial to protecting that right in states across the country. There’s a lot to cover, so let’s get to it. Here’s my Q&A with Professor Kate Shaw.

 

Dr. Abdul El-Sayed: I always love interviewing podcast host because they’re like, all ready to go, right?

 

Prof. Kate Shaw: Usually, but I just got a weird sound. Sorry, oh, yeah there we go. All right. Weird little pauses. Okay. Yes. Now I’m ready to go.

 

Dr. Abdul El-Sayed: All right. Professor Shaw, thank you so much for taking the time to join us. I know how busy this moment must make you. I, of course, I’m a huge fan of your podcast, and I knew that if with our powers combined, we might be able to actually answer the myriad questions that the disastrous overturning of Roe v. Wade that took place on Friday open up and pose. And so thank you so much for taking the time to join.

 

Prof. Kate Shaw: The fandom is mutual. Thank you so much for having me. Really excited to be here.

 

Dr. Abdul El-Sayed: I want to just jump right in. There are a lot of questions that we got from Instagram and on Twitter. And I want us to start with this one: when people talk about codifying Roe through legislation, couldn’t the Supreme Court just overturn that legislation? And this comes from Elsa on Twitter.

 

Prof. Kate Shaw: Yeah. Well, in a word, yes, it could. Right? So, I mean, when people talk about codifying Roe, they’re just talking about passing a federal law that protects, as a federal statutory matter, the right to access abortion. But of course, any such federal statute would be immediately challenged and ultimately its constitutionality would be decided by the same Supreme Court that just overturned Roe. So, you know, there are questions about whenever Congress acts, it has to have constitutional authority to do it, and the most likely source of the constitutional authority to, you know, codify Roe to protect abortion access nationwide would probably be the Commerce Clause. Right? You know, accessing any kind of medical procedure involves commercial activity. Often, you know, patients, providers, suppliers, cross state lines. So I don’t actually think there’s any real question that regulating access to a medical procedure like abortion is a form of regulation of interstate commerce that Congress does have the clear constitutional authority to regulate. And I think the court’s existing cases do make that clearer. And yet I think the Supreme Court has sufficiently broadcast its hostility to abortion that there’s every reason to worry and indeed to predict that if faced with a constitutional challenge to a federal law that protects abortion nationwide, the Supreme Court would find a way to strike it down. We don’t know that for sure, but I think it is extremely well-founded to be concerned about that, so that even if somehow Congress did manage to secure the votes to pass, you know, a bill codifying Roe, there’s a very good chance that it would meet its demise at the hands of the Supreme Court.

 

Dr. Abdul El-Sayed: And toward that end, I’m no attorney, but it seemed to me that so much of the Supreme Court’s operations, their beings and doings, are a matter of norms, and stare decisis seems to me to be one of these norms. And that’s the idea that you follow established precedent, if the court has ruled you, you generally offer wide deference to the previous rulings of the court. And obviously, this is a gigantic smack in the face to that idea, but there is sort of this interesting overall question about the court taking this gigantic dagger to stare decisis, but then this ruling also itself then sets precedent should future iterations of the court want to follow it? And I guess the question that has come up a couple of times is, is how do we think about this with respect to precedent? Is this a function of a 6-3 ideologically hell-bent court, or do we see the court regulating back to a set of norms and mores in the future? How should we think about what implications this has for the opportunity to overturn–we talked a little bit about through codification in the law–but then also in cases in the future.

 

Prof. Kate Shaw: So it’s, of course, right that stare decisis has been an important kind of central feature of our law. And it’s also, of course, true that the court has not invariably adhered to its prior cases. The court has on important occasions overturned prior precedents. Obviously, the kind of most famous is Brown versus Board of Education, overturning Plessy versus Ferguson, which approved of a regime of separate but equal. So nobody, no one argues that the court should never overrule its prior cases, but the bar should be high, has been the broad consensus that the court should not cavalierly overturn its prior precedents, and that when it is deciding to overturn a case, right, to break with stare decisis, it should adhere to some kind of principle guidelines for when and why. And I think that is what is so troubling about what the court has done in Dobbs–not that it’s just an overturning, but the thinness of the justifications offered for overturning Roe, together with the fact that Roe is not just a precedent, but a precedent that has been affirmed and reaffirmed by multiple courts composed of appointees from multiple generations, appointed by presidents of both parties, actually primarily Republican appointees, both in the majority in Roe and in the majority in Casey, and also a half century of society-wide reliance on this important constitutional principle. And that has always been kind of at the heart of the store decisis analysis, right, has a legal rule announced by the Supreme Court, given rise to widespread reliance that would be disrupted if the court reversed course. And it’s hard to think of a better example of widespread reliance than reliance on abortion as a backstop should contraception fail, should sexual assault result in a pregnancy, should a severe fetal anomaly lead an individual to wish to terminate a pregnancy, right? So it has been there in the backdrop as generations of Americans have structured their lives, pursued love and careers and everything else, and that’s pretty unmistakable, very strong reliance. And yet the court, in its opinion in Dobbs, basically kind of brushes away reliance interest in a paragraph or two. It say, eh, emotional reliance is not really real reliance. And also with the advent of pregnancy discrimination laws and so-called safe haven laws that mean, okay, you may have to carry a pregnancy to term, but you’re not going to be saddled with the burdens of parenthood if you do give birth and do not wish to raise the child. So it’s a, it’s a pretty shocking dismissal of those kinds of reliance interests, and it really seems to boil down to, did the justices in the majority think Roe is egregiously wrong? This is a formulation they use, they say it was egregiously wrong, and that seems to be the only thing that matters. And if that’s the new test, like basically it seems as though anything will go so long as a majority of the justices believe the court’s prior case was wrong or egregiously wrong. I mean, I think that’s one of the many reasons a lot of people reading the Dobbs opinion are deeply concerned about what it might bode for other kinds of foundational constitutional rights, including ones closely related to the right at issue in Roe, like the right to contraception, but also, you know, sexual intimacy, same-sex marriage–these are all cases that the current majority was very, has been very critical of. Some of them, you know, dissenting in those cases themselves, like Obergefell, the same sex marriage case. And if, you know, thinking on an earlier case was egregiously wrong is all that’s required to overturn it, and we sort of see how kind of emboldened with respect to precedent this conservative supermajority is, I think there’s every reason to really worry about the fate of those other cases as well.

 

Dr. Abdul El-Sayed: You know, there’s a disgusting irony in all of this is that these folks call themselves conservative, and at core, conservative implies a certain, you know, that you’re conserving something, that you are allowing wide deference to what has happened in the past, and, you know, this is nothing close to the idea of being conservative. And it really is this sort of, you know, tenacious ideological assault that comes from this empowered, re-empowered minoritarian perspective on what government ought to be in what we’ve all sort of taken to be a democratic and a pluralistic secular society. But the consequences here, you can imagine going far further. In fact, rather than having to imagine it, one of the justices took it on his own, Justice Thomas, to write a companion opinion arguing that if the logic underlying this decision stands, then one should rethink decisions like Griswold, which protects the right to contraception, decisions like Obergefell, which protects the right to same-sex marriage–rather conveniently left out Loving, which protects Clarence Thomas own marriage, which is a marriage, an interracial marriage. And of course, there was a time where Supreme Court case had to decide that that, in fact, was fully within the rights of any American. But the contraception question is a really important one, because the world in which an abortion is made illegal and contraception is made illegal too, right, in what you would imagine many states to do after the fall of Roe and after the fall of Griswold is far more egregious. These two things have the ability to operate along one another such that the sum is greater than either of the parts alone. How should we be thinking about where the court is going? What would be the set of things that would happen such that that world could could forward?

 

Prof. Kate Shaw: Yeah. So a handful of responses. One, I mean, even before getting to the question of whether the court might kind of frontally revisit Griswold, I think that you’re beginning to see, and you have actually already seen arguments made, that certain forms of contraception, because they’re abortifacients, right, should already be kind of considered, you know, under the umbrella of abortion as opposed to even contraception as a distinct both legal and medical kind of concept. And so I think that there may be targeting of methods of contraception as really being abortion, even before getting to kind of directly targeting contraception. But in terms of how the court could be faced, you know, directly with the question of whether the Constitution actually should be understood to protect a right to access contraception, you know, look, a state could try to pass a law criminalizing or prohibiting access to contraception. That would, of course, give the court an opportunity to revisit Griswold, which in 1965 held that first married couples–and then this was extended to unmarried individuals–had a constitutional right as a component of the liberty protected by the 14th Amendment to access contraception, right, to decide whether to become pregnant even before the court right confronted the abortion question. So that would be one way. Another way that these questions could end up before the court is just in the guise of, you know, conscience objections to participating in or facilitating access to contraception. And so a set of arguments, not just that individuals are themselves based on religious or conscience objections to providing contraception exempt from participating in that, but that at the same time raise the question of whether the Constitution, in fact, should properly be understood to guarantee a right to access contraception. And that just could, without requiring a state to try to outright prohibit the practice, to serve the court up a case that has embedded within it a set of questions about whether the core of that constitutional right should be revisited. And I have to say, you know, the majority, the Alito majority opinion says a couple of times “This case is just about abortion. Abortion is different.” And I just don’t think there’s any reason to take the majority at its word there when the things that it criticized about the Roe decision, that the right to abortion is not deeply rooted in our history and traditions, are equally applicable to contraception, right? The relevant historical sources to which the majority points, you know, whether we’re talking about 1789-era materials or 1868, when the 14th Amendment was added to the Constitution-era materials, these are not historical periods in which you’re going to find a robust support for kind of broad acceptance of and legal facilitation of access to things like contraception and abortion. And if that’s the way you decide what the Constitution means, I think it’s you know, it’s extremely concerning from the perspective of the durability of the contraception right as well.

 

Dr. Abdul El-Sayed: You know, this was a time when someone needed surgery, they would get them extremely drunk and then have a barber come.

 

Prof. Kate Shaw: Right.

 

Dr. Abdul El-Sayed: And so I just I want to, I want folks to appreciate just how implicitly anti-science, reading our current moment in the context of the late 1700s or early 1800s, actually is. Because you’re basically erasing two centuries worth of science that has delivered us a very different world than the one that we had in the past. And I, that is above and beyond the differences in access to rights for people like either you or me. And you cannot read this approach outside of the context of a attempt very clearly, boldfaced attempt, to read a very particular set of religious interpretations into the law of the land governing everyone else. There’s no other way to see it. You can’t call yourself pro-life and then want to ban contraception access and abortion. Like there is no world where you can say, Yeah, it’s just the abortion issue, but we’re also going to take away your right to contraceptive too, because if we’re serious about preventing abortion, the single best thing you can do is prevent an unwanted pregnancy from happening in the first place. We have a lot of questions about IVF, and I’m going to take a stab at one of them. What about IVF? Why do pro-life folks have an issue with IVF? Well, as Professor Shaw talked through, she also talked about some of the forms of contraception that are considered abortive, and that is usually Plan B, and the issue here is whether or not a single sperm has penetrated the wall of an ovum to create what is now, in effect, a zygote. And once you have a zygote, if you believe that conception starts at fertilization, and you interpret that to be a living human being with all the rights of born human beings, then anything that would result in the destruction of that fetus or the failure even to implant of that fetus, then you would call that, you would call that abortion. So IVF does exactly this. What tends to happen in IVF, there’s a lot of different ways to do it, but you’re usually creating multiple different zygote, embryos, that will be stored, and the physician team is selecting the most viable ones to implant. And so if you have extra embryos being stored in a freezer, what they would say is that you are aborting those extra embryos, which is the reason why pro-life folks, quote unquote “pro-life folks”, would have an issue with this. Similar to Plan B, which which basically prevents a fertilized egg from implanting and it just flushes. So for either of those reasons, you could see, right, a state taking on a legal position, because of the fall of Roe, under their anti-abortion statutes that would then make this illegal. Professor Shaw, I know there’s a lot to add to that. So . . .

 

Prof. Kate Shaw: Yeah, no, I agree with everything you just said. I mean, I think that IVF doesn’t come up in the majority opinion, but basically the logic that states have basically carte blanche to implement policies that enact essentially an absolutist kind of pro-life agenda, would seem to give states license if they wanted to, to severely regulate and maybe even to prohibit IVF. Right? Because kind of by its very nature, IVF procedures result in more embryos than end up getting implanted, and, you know, often they are destroyed after, you know, people build the families they want to build. And so whether we’re talking about a state doing something to try to reduce or eliminate the destruction of embryos, and whether that would make it so difficult to actually kind of run an IVF clinic that it would have the effect of completely prohibiting the practice, or whether they would just sort of at the front end try to prohibit it outright because of an argument that it’s inextricably entangled with, you know, a practice or culture of less than full reverence for a potential life. I’m not sure how it would proceed, but I absolutely think that it’s quite vulnerable on the logic of the majority opinion that, you know, states can take whatever steps they want and the kind of collateral damage, you know, again, including too couples who desperately want to get pregnant and have babies, is kind of absent from the majority opinions consideration, right? Like the fetus seems to be kind of the sole–and we should say that the court does not say that a fetus is a constitutional person so that a state cannot permit abortion, right? That would be going much further than saying a state may prohibit rather than must prohibit abortion. So what the court says here, court states may prohibit abortion does not say they must prohibit it. But there certainly are kind of parts of the anti-abortion movement that see this as an interim step to that kind of destination of and, you know, a nationwide ban through constitutional interpretation. But even, you know, well before getting there, if in fact, that is the path we are on, I do think that it’s right that IVF is vulnerable.

 

Dr. Abdul El-Sayed: Yeah, and it just, it just draws again another one of these brutal ironies, which is that these are people who want to have kids and have had trouble having them. They want to bring actual life into the world. And in the effort to read a very particular religious opinion into the laws, this would then prevent people who truly do want to have children from having children in the name of being pro-life, which is all kinds of a mind fuck. But I want to move to questions about privacy. There were a lot of questions. Akeela T Lady T from Twitter had a question about it and then Jen B had a question, and it had to do with how safe one’s medical records are, but then also things like period tracking apps and pregnant tests bought with credit cards–folks wanted to ask, is it fear mongering that you should delete your period tracking apps or not buy a pregnancy test with a credit card, or is there some reality to it? And you know, if you were having a conversation with a physician that was kept in the medical record, how vulnerable is that to exposure to legal entities?

 

Prof. Kate Shaw: You know, so start maybe with the period tracking apps. I think that these kind of warnings that we have seen circulating on social media in the last few days that people should delete those apps are probably right actually. So I think that even if you’re not, even if we’re not, you know, actually worried about some kind of panopticon-style surveillance state actually beginning immediately in the wake of the fall of Roe to track the kind of fertility and activities of all, you know, women and childbearing capable people in the United States, I still think that having this kind of, you know, personal medical information in the hands of a third party and also stored, you know, on your own device, potentially, you know, vulnerable to say a subpoena request from a DA who is investigating an allegation of an abortion in violation of state law.

 

Dr. Abdul El-Sayed: Wow.

 

Prof. Kate Shaw: I would be concerned about those records being available to potential subpoenas, and so I think they’re probably, I think that those those warnings are probably well-founded. And I mean, I think that I had the initial reaction that these seemed kind of alarmist, but as I mulled it over, look, we don’t know in a post Roe world what the kind of enforcement of these new laws that have, you know, gone into effect and are going into effect as we speak right now will look like. So, you know, you could imagine a world in which DA’s basically say, Well, you know, the clinics are shut down and we’re not going to aggressively pursue the kinds of things that people are pursuing, you know, themselves to access abortion pills and things like that. And that could be how things play out in some places, but it could be that there are aggressive DAs who actually do pursue individuals who either obtain or assist women in obtaining abortion pills. And so, yeah, I think that actually those warnings are probably wise.

 

Dr. Abdul El-Sayed: Wow. That is dire. There was another question about, about travel for folks who now live in a state where abortion has been rendered illegal because of the combination of the fall of Roe and state law, if those folks travel to obtain the procedure, do they potentially face legal liability back home?

 

Prof. Kate Shaw: It’s an important question, and several states have already, including some even before Roe was overturned, moved to attempt to prevent their citizens from traveling elsewhere to secure abortions. You know, there’s a real question about whether a state law that tried to do that, right, to keep people from leaving to get abortions elsewhere, would be constitutional. There is a pretty broadly understood right to travel interstate. And in an important concurring opinion to Dobbs, Justice Brett Kavanaugh, who was the critical fifth vote to actually overturn Roe, said pretty explicitly that he would vote to strike down such a law, that he would not agree that a state could prohibit its citizens from obtaining abortion care elsewhere. So that at least is really helpful if the question is would the Supreme Court ultimately sustaining such a law. So I think there is here, there is, right–I’ll strike a slightly more hopeful note here, right–here there is reason to believe that a state could try, but I don’t think that it would succeed. And so, at least for now, the legal landscape is such that individuals, you know, should be comfortable in their ability to leave the state, secure abortion care, and return home. Of course, that’s going to be a sliver of the population, right, that has the resources to do it, that detects abortion early enough, that can take time off work, secure childcare–because as we know, most people who seek and receive abortions in this country are already parents seeking to, you know, make sure they can financially and emotionally and otherwise care for their existing children, right? That’s a key reason that people seek and obtain abortion. So if everything lines up, then I don’t think that the Constitution is going to permit your state to punish you. But that’s going to be small comfort to most people who won’t be able to, or to many people who won’t be able to travel.

 

Dr. Abdul El-Sayed: Yeah. To your point, the important thing to appreciate here is that a lot of people who are ostensibly in support of this will travel, they will get abortions, and they will come home and they’ll say, I didn’t break any law. And they’ll call that choice. And what they will have ignored is that it is because of their personal financial and/or positional situation in the world where they’re going to be able to do that. And for so many people, the vast majority of whom are choosing to have an abortion because of far more dire circumstances than even these people will have chosen, will not be allowed to do that. And the inequities that this opens up, the kinds of differences in life opportunities and circumstances that this will create, are profound. And again, it falls along all of the same seams of existing differences in access by race, by socioeconomic position, by immigration status, that have shaped so many of the inequities we talk about on this podcast all the time. I want to hit one last question, and–

 

Prof. Kate Shaw: Can I respond quickly, Abdul, for just once second on that? Because I think you’re obviously right that this new regime is going to just exacerbate terribly existing inequalities, but I also think everyone will be impacted, right? I don’t think that even people with means who live in states that are going to continue to allow abortions and could even travel to get one if they needed to, they’re not going to be untouched by this, right? So people who are if they’re traveling for a conference and end up in a state that has severely restricted or prohibited abortion, and they start to have a miscarriage and they’re not able to actually get the care they need because miscarriage management and abortion care are really hard to distinguish, and medical–you’ll note this obviously much better than I do–but there may be a chilling effect on medical practitioners in the states they’re traveling to for conferences for, you know, kids sports games. You know, I mean, I think people with means are going to be affected too, not in any way to the extent that people with fewer means will be, but I actually think this new legal landscape is going to touch everyone. And there is like some solid heuristic value in acknowledging that actually literally everyone has skin in this game.

 

Dr. Abdul El-Sayed: I really appreciate that point, Kate. And that’s a really, really important one. I want to pick up on a thread that you put down there, which is about the fact that, you know, when you’re someone whose job involves sitting in a robe in a sterile room, it’s tempting to believe that the decisions that you make are as sterile as the place in which you’re making them. And the truth is, is that medical reasoning, by definition, is probabilistic. We can’t say for sure what the outcome is going to be. We can just say, based on the evidence that we’ve collected, here are the probabilities of particular outcomes. Now, when on the back end of making the wrong decision, you either face a catastrophic outcome for your patient or you face a catastrophic legal outcome for you, it is really, really difficult to make that decision. And so you’re already seeing physicians starting to ask, Well, how do I know what it means to interpret the idea that the mother is facing some sort of harm? How bad of harm are we talking about? Because, frankly, almost no childbirths happen without harm. There is going to be some harm, whether it’s, you know, first or second degree tear or, it’s the fact that you’re, you know, you just delivered a child out of a very, very small hole. And so physicians are starting to ask, Well, how do we take this very black and white reasoning that we’ve been handed, that have been either written by, you know, a group of mostly male state legislators in state after state ,and trying and ask this question. And so this chilling effect is going to be very real, and you’re going to start seeing physicians who say, Look, I don’t want to put my career on the line to make the wrong decision, because some expert is going to be hired by some prosecutor to sit in some box in some courtroom somewhere to say that I was completely wrong based on the evidence that I saw, and of course, hindsight is 2020. And having done the right thing, you cannot then prove that that the counterfactual situation even ever existed. And so this chilling effect is going to be profound. And beyond that, right, asking the question about just a natural, unfortunate stillbirth or miscarriage, how then do you start asking questions about whether this was, quote unquote, “purposeful”? You can imagine situations where people are looking forward to to birthing a child, there is a miscarriage that happens, and now all of a sudden, they’re under legal scrutiny for one of the worst things that ever happened to them in their lives. And these are the kind of situations that I don’t know if in their small hearts or, you know, they thought about this potential circumstance, but I really wish they would have. Because I don’t think it’s as simple or it’s as easy as the justices made it out to be. I want to ask answer one last question here, which is about homeopathic methods for self-managed abortion. I’ve got a question about pennyroyal and black cohosh. So these are substances that have been used in ancient history to pursue abortions. And the fact that this question was even asked is an indication of the danger of this particular ruling, because these have been used in the past. They are, they have not been shown to be effective, and they certainly have not been shown to be safe. Right? And when we think about clinical reasoning, we think about safe and effective. That’s why you keep hearing us say that about the vaccines. They are safe and effective. You have to prove that it’s not going to cause harm, that was unintended, and you have to prove that it actually accomplishes the outcome for which is taken. And there are going to be many means that people pursue to abort fetuses that they do not want to birth, and they are going to be far less safe because they’re going to be illegal. And so, you know, I do not recommend that anyone pursue either of these, but at the same time, the circumstance that we find ourselves in is that the proper recommendation, which is to talk to your doctor, has now been made illegal in at least nine states, and it looks like several more states are going to follow suit. So it is the fact of this question that itself demonstrates just how dangerous this ruling is. And for millions of people, they’re going to be forced into very, very, very difficult circumstances and situations. And this is the point that that so many of us in the public health community have been making, which is that making abortions illegal does not prevent abortions should people want to have them, it just makes them far less safe. And then that doesn’t even include the conversation that we need to have about the fact that there are 400,000 children in the foster care system, 117,000 waiting to be adopted, that, you know, any argument that says that there’s going to be, you know, folks waiting to give all these children a great household, that just undercuts any of that argument. And so we are not ready as a system to deal with this, whether it is to provide safe avenues. We’re not ready as a system to deal with the forced pregnancy and birth of unwanted children, largely in circumstances where parents were making decisions not to have them because they did not believe that they could safely and and within bounds ,raise them. And so what kills me is that the quote unquote, “pro-life” folks not only want to lock off the best means of preventing an abortion, but they also don’t want to invest in life after it’s born. The only way you can call this pro-life is if you think life ends at childbirth, because I’d love to see them pursuing policies like Medicare for All, pursuing paid family leave, pursuing universal pre-K and child care. I’m not seeing any of that. And here we are.

 

Prof. Kate Shaw: As we’re talking. I was just thinking, I have been so kind of immersed in thinking about constitutional doctrine in the last three days, like it is really useful for us Lawyers to hear the public health and medical experts sort of talk about what exactly this is going to mean for practitioners. And, anyway, I just think sort of legal, medical, and public health dialog is super important right now. This is an issue that has got so many dimensions and so many facets and we are really, truly living in a transformed, you know, legal and public health landscape from just 72 hours ago. And I think, as you know, that was just really, really useful to hear you talk about from such an important and different perspective. [dog barking] I’m sorry, my dog agrees..

 

Dr. Abdul El-Sayed: I mean, it is a moral abomination. You don’t even have to be human to appreciate that. Professor Shaw, I really appreciate you taking the time to answer some of our listeners’ questions. If you haven’t heard Strict Scrutiny, you really have to. Their emergency episode is out now that really breaks down this ruling. But we wanted to offer a perspective that that brings together both a legal perspective and a medical and public health perspective. I hope that, you know, the next time we can come together, we’re talking about something that’s a bit more uplifting than this. Although as I look at the rest of the docket, I’m less certain that that will be the case.

 

Prof. Kate Shaw: We might be waiting a while.

 

Dr. Abdul El-Sayed: Yeah, yeah, but but we can hope. And I really appreciate you having on the show. Thank you so much.

 

Prof. Kate Shaw: The Abdul, thank you so much for having me. It was great to talk to you.

 

[ad break]

 

Dr. Abdul El-Sayed, narrating: Now, I want to bring you a perspective from the very front lines of protecting abortion rights. As you heard from Professor Shaw, this decision has made abortion illegal in states across the country. 13 states, like Missouri and Texas, have instituted trigger laws banning abortion 30 days after the decision first occurred. Other states, like mine in Michigan, still have abortion bans on the books from long before the original decision in Roe v. Wade. In Michigan, that law dates back to 1931. To put that in perspective, penicillin hadn’t been discovered yet when this law was written. Let me read you an excerpt from the law, “administering drugs, etc. with intent to procure miscarriage. Any person who shall willfully administer to any pregnant woman, any medicine, drug, substance or thing, whatever, or shall employ any instrument or any means whatever with intent, thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony. And in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.” Guilty of a felony?! These are the draconian laws we are now up against. In addition in Michigan, pre-Roe abortion bans are also on the books in Arizona and Wisconsin. Standing between those laws and the reproductive rights for millions are strong elected Democrats refusing to enforce these laws or actively fighting to overturn them. Our second guest today, she’s one of them. After the fall of Roe on Friday, here’s what she had to say. “This opinion is an unraveling of our country as we know it. The overturning of Roe is not just the loss of a right, it’s the erosion of the inalienable rights that all Americans are supposed to be entitled to. It claws back the hard-won agency women have over their bodies and lives, and it eliminates settled law relied upon by generations of Americans. It’s time to vote like your life depends on it because it does.” I wanted to talk to Dana about how she’s fighting now to protect reproductive rights, what hangs in the balance in the 2022 election, and where we can possibly go from here? Here’s my conversation with Michigan’s Attorney General, Dana Nessel.

 

Dr. Abdul El-Sayed: Thank you so much for joining us. Can you introduce yourself with the tape?

 

Dana Nessel: Hi, this is Dana Nessel. Michigan Attorney General.

 

Dr. Abdul El-Sayed: AG Nessel, thank you so much for taking the time to join us, particularly in this moment when it feels like crisis is mounting upon crisis, but none more urgent and more critical than what we saw on Friday with the fall of Roe and the concomitant change in policy around access to a safe, legal abortion. Can you tell us just first, personally, what the fall of Roe means to you?

 

Dana Nessel: Well, you know, it’s, I have to say, even though I had been predicting this, as you know, for many years, and then especially in the last month, we were certain that this was going to happen based on the leak from the court, but on Friday, I really can’t even describe the feeling that I had. The hollowness and feeling of sort of desperation, and knowing that this fundamental right that I’ve enjoyed, you know, my entire life, suddenly swept out from beneath us. And, you know, I don’t think it’s a secret that I am not a woman of reproductive age any longer, but I can’t imagine during the years that I was, knowing that, you know, abortion would be not just unavailable in Michigan, but a crime, a felony.

 

Dr. Abdul El-Sayed: When you ran, I mean, you saw this coming. You specifically cut an ad, which I remember, you know, a lot of folks in the sort of establishment across both parties scoffed at it. But you cut an ad in a back alley with a hanger to highlight the possibility that this might happen and that if you were elected, you’d be in a position to have to defend the right to choose. How does it feel that you’re now in that position where your, it’ll fall on your shoulders to have to protect abortion rights for Michiganders?

 

Dana Nessel: I mean, I don’t feel great about it. Obviously, I wish that this was a turn of events that never occurred, but it was so clear and obvious to me that it wasn’t a possibility, but it was a likelihood. And, you know, it was during that time, you’ll remember, that now-Justice Kavanaugh was going through his confirmation hearing. And, you know, those who were close with then-President Trump, you know, they’d made it very clear that there would be a strict vetting process for anyone who was going to make the shortlist for a nomination for the Supreme Court. And groups like the Heritage Foundation, they were going to ensure that there were no David Souter’s anymore, you know, a loose cannon and you didn’t know how they were going to rule when they got in the court. They knew that anybody who made the list, the Neil Gorsuches, the Brett Kavanaughs, the Amy Coney Barretts, they wouldn’t be on that list unless they were prepared to overturn Roe. That was very, very clear then. And so we knew at the time, you looked at the ages of the justices on the court, and I, I was positive that Trump would get at least two appointments. I didn’t know he’d be getting three. That’s a lot for any president. And I don’t remember the last time any single president actually got three appointments. So they had the votes back then. It’s almost shocking that it took, you know, a few more terms for them to actually overturn Roe. But as soon as they took the Mississippi case, and frankly, as soon as the Supreme Court refused to put a stay in place on the Texas case, the writing was on the wall. It was clear this was going to happen.

 

Dr. Abdul El-Sayed: So now now that the right to a safe, legal abortion up until the time of of fetal viability is gone, it falls to individual states. And can you walk our listeners through what the state law in Michigan is that’s currently on the books around abortion?

 

Dana Nessel: So there’s actually a number of them. There’s a 1931 law that’s been the subject of a lot of discussion lately, and that is a four-year felony offense, and it makes it an offense to provide an abortion. So for, you know, physicians, and not just physicians, for anybody who aids and abets in the provision of an abortion. So it really can be even, you know, not just assistant attendant medical staff, but also even even the receptionist who makes the appointment, if he or she knows what the appointment is for, you are just as guilty as the principal actor. So for all those people, it’s a four-year felony. There’s also a one-year misdemeanor that’s involved in terms of dispensing abortion medication. And what a lot of people don’t know, and hasn’t been discussed as much is there’s actually a manslaughter provision that is remains on the books for certain circumstances. So there’s actually a litany of abortion-related laws that prevent the availability of abortion, or at least legally so. And I should say this, there’s no exception for rape. There’s no exception for incest. And even further, the description is that the only instance in which an abortion would be legal is to, quote, “save the life of the woman” but we don’t have any case law and we don’t have anything in the statute that provides a definition of that. So it’s unclear if, you know, if you have an issue like high blood pressure, which, as you know, Doctor, that can lead to mortality while either during the course of a pregnancy or during childbirth–but if that’s like a 40% chance, is that enough to save her life? I would say it’s doubtful. I don’t know that that would be considered enough in a court of law. So there’s a lot of conditions where it’s not where, you know, previously a doctor would have recommended the termination of a pregnancy to a pregnant woman, and now it’s unclear if even in those circumstances, it would be available.

 

Dr. Abdul El-Sayed: Yeah, this is one of the points that I think is so profoundly misguided, is that when you start putting limitations like this in place, they presume that medical science is perfect and it’s a series of yes-no decisions, rather than what it actually is, which is a series of probabilities that are best left to a practitioner to make a decision. And when you start putting potential consequences, legal consequences on the end of making the, quote unquote, “wrong decision” that someone in a court of law could second guess, then you’re going to start to see a lot more conservative decision-making. And so it just freezes the capacity of doctors even in that circumstance which is in theory, carved out in the law, it just freezes doctors from making calls like that one. And not only will that mean that people will actually die above and beyond those who are obtaining unsafe and now potentially illegal abortions, but even in circumstances that are carved out by the law, doctors are going to be far more gun shy about being willing to say, yeah, this is actually a true risk to the mother for fear that someone is going to second guess them with hindsight in a court. And so the point that you’re making about the frosting effect is really a profound one. I want to ask you, now that Roe has fallen, what does that mean for access to a safe, legal abortion in the state of Michigan?

 

Dana Nessel: Well, for right now, there is a preliminary injunction in place. There are a couple cases that were filed prior to even the Dobbs leak. One is a case that the governor filed against a number of county prosecutors in jurisdictions where they have abortion clinics available. And one is a case where Planned Parenthood sued me. On the Planned Parenthood case, it was assigned to Court of Claims Judge Elizabeth Gleicher, and it was it is interesting case, because Planned Parenthood was essentially saying we want the Attorney General not to enforce this 1931 law, 750.15–er 14–and I said, Great, I’m not going to enforce the law, so no problem. But you know, what the judge ended up doing is she issued, back on May 17th, she issued a preliminary injunction that stopped the enforcement of this, you know, four-year felony–not just for me, but also as it applies to all 83 county prosecutors–and her reasoning was that she felt as though the plaintiffs, Planned Parenthood, was likely to, you know, to prevail on their claims, and so she put a stay on the the enforcement of this provision during the pendency of the litigation. So that’s a long way of saying for right now this stay is in place. However, the Republican legislature has intervened in the case as well as a couple of county prosecutors have intervened on my case, even though the suit was against me. And they, you know, they’re asking for the Court of Appeals to set aside that preliminary injunction. And if the Court of Appeals does that–and then the briefing schedule has gone out to the end of this month, so nothing will happen until probably August at the earliest–but if if they do that, if the Court of Appeals does exercise that authority and sets aside the preliminary injunction, then at that time, the 1931 law would become enforceable immediately.

 

Dr. Abdul El-Sayed: And what about the other laws? You said that there’s also a law that deems it a misdemeanor and another one that is even more extreme that that deems that manslaughter. What about those laws?

 

Dana Nessel: So those laws were not specifically named, interestingly enough, in the lawsuit. But given the the language that was used by Judge Gleicher in her opinion attached to the ruling on whether or not to grant a preliminary injunction, you know, she found that under a theory of bodily integrity, basically, a right to bodily integrity through abortion, that that law couldn’t be enforced. I don’t really see any plans–certainly not, no plans by the state, given that Governor Whitmer is, you know, in the governor’s office and all of the agencies like the Department of Health and Human Services to report to her–I don’t see any of those laws being enforced during the course of the time that the injunction remains in place. Now, a county prosecutor could theoretically say, well, I don’t think this applies to me, and try to exercise his or her prosecutorial ability to investigate or prosecute individuals. But I think they’d be held in contempt of court if they did that. So I think it’d be a very dangerous move for them. And they know it applies to them. Whenever you we are suing a particular law and an injunction goes in place, it’s not just as it pertains to that individual. It’s for all parties involved. So no one can prosecute under under that law, not just me.

 

Dr. Abdul El-Sayed: So should we get to August and this law, and presumably the others, become enforceable, what happens then?

 

Dana Nessel: Well, what I see happening at that time, you know, I mean, hopefully what will happen is the injunction will stay in place. But if it does not, for that period of time until or unless we have the law changed through the Reproductive Freedom for All ballot proposal, if it makes the ballot, and if it passes and is certified, for that period of time, abortion will be illegal in our state, except for in those limited circumstances involving to save the life of the mother. Now, in reality, what it means is, as you suggested, I think it will have a chilling effect, and I just think that for the most part, physicians are going to be much too afraid of things like, you know, losing their professional liability insurance, which no doctor wants to practice without. They might be afraid of licensing issues, which I have made it very clear I represent LARA, the licensing and regulatory agency, and I represent the Board of Medicine and I represent the Board of Nursing and all those, you know, medical boards–I am not going to move to strip any physician or nurse or anybody else who has a professional license under the state of Michigan. I’m not going to move to strip them of their license, so I don’t think they’ll have that consideration. But I think going to jail or prison will be enough incentive for most doctors not to perform any abortive procedures. And, even in cases that seem like emergency medical situations, if I’m that doctor, I don’t know. I mean, on one hand, I think they’re in a real bind, because on one hand, if they don’t perform the abortion and the patient dies, you could see a lawsuit ensuing and you could see potentially exposure in terms of their license. But if they do perform the procedure, well now, they could be prosecuted. So I think it’s a no-win situation for physicians in that situation. And I do think that there are going to be times where you have a patient that is in dire need of medical assistance and the doctor is too afraid to perform the procedure. And even if we can look at this from outside and say, Come on, what jury of 12 people are going to come together and unanimously find that doctor guilty beyond a reasonable doubt? That might be the case. But if I’m that doctor, I don’t want to go to jail, I don’t want to get a mug shot taken, I don’t want to go to court like 50 times before I get to my trial. And I don’t want to go, I don’t want my picture in the paper. I don’t want to go through any of that. So I don’t know how many doctors are really going to perform the procedure. And let’s be honest. I mean, in terms of other types of abortions that are not medical emergencies, you know, you’re going to have people all around the state that just are not going to have the wherewithal to get to a state where it’s legal. The closest state will be Illinois. And for a lot of folks in the state, as somebody who’s widely traveled the state and I know you have too Abdul, you know, takes his what, 14 hours to get from, you know, where we live to Gogebic? I was just up in Alpena and all the people who just told me, there’s no way to get anywhere. They can’t get employment because they don’t have a vehicle or in some cases they don’t have driver’s license–they can’t even get to the next county over, let alone to Chicago.

 

Dr. Abdul El-Sayed: It seems that even in the short term, should this law take effect, I know you won’t prosecute, and arguably you’ll have a number of county prosecutors who won’t prosecute, so will it be the kind of situation where you have, in effect, safe haven counties where abortion will still be, well, technically illegal but not enforced? So you can imagine someone coming to Ann Arbor where, you know, you have Washtenaw County prosecutor Eli Savit who won’t enforce, and then the state won’t enforces? Is that what we’re looking at?

 

Dana Nessel: So theoretically, that would be nice to think that that would happen. But here’s the problem: so for several of these provisions that we’ve talked about, there is a six-year statute of limitations. And what it means is this, I’m going to be term limited out. Llet’s say. I mean, I’m up for reelection in November, and maybe I win–now if I don’t win and people are performing abortions even in those areas, in those jurisdictions, my opponent has been very clear that he will prosecute in all instances. And he’s actually said he doesn’t believe there any circumstances where an abortion is required to save a woman’s life.

 

Dr. Abdul El-Sayed: Unconscionable.

 

Dana Nessel: But that being the case, even if I win in November–and you know I’m going to be there and you know that Governor Whitmer will still be in the governor’s office–well, we’re going to be term limited out after that. See, that still would leave, you know, theoretically another couple of years where an attorney general could come in and decide that they’re going to investigate something that happened four or five years ago, because they can. And so I think that’s the chilling effect, is the not knowing. It’s the fear of the unknown. And again, there will be some doctors, I think, that will stand up and say, No, I’m going to do this no matter what. But I don’t know that they’re, the hospitals that they work for or in, or the health care plans they’re allied with will be okay with that. And they might just get dropped. And you know a lot more about how this works than I do, but if you work, if you’re part of, say, the, you know, Henry Ford health care plan, right, if you I mean, I don’t know that they’ll be permitted to perform those procedures because it might be the group that they work with just says, No, we’re not going to, we’re not going to take that kind of exposure. And so it makes me feel as though it’s nice in theory to think that, okay, you know, Oakland County, you have Karen McDonnell, Wayne County, you have Kym Worthy, Washtenaw as you suggested, we have Eli Savid, in Ingham County, we have Carol Seaman–none of these prosecutors, none of them will investigate or prosecute abortions if they’re performed safely by medical experts. I mean, I’m sure if it’s a back alley abortion, somebody who’s not medically qualified, that’s a different set of circumstances, different story. But it would be nice to think, oh, great, those would be safe-haven counties, but the reality is, I just don’t think it’s going to work that way. I just think that abortion is going to be widely unavailable for people in the state, and people really will have to travel to another state. Or they’ll have to illegally smuggle abortion medication across the border.

 

Dr. Abdul El-Sayed, narrating: We’ll be back with more with Attorney General Dana Nessel after this break.

 

[ad break]

 

Dr. Abdul El-Sayed: To the point about the chilling effect here, we’ve already seen one of the state’s biggest health care systems basically change its policies despite the fact that abortion remains legal in this state, as you explained, for now. They’ve already trimmed their sales and they’ve already announced, Spectrum Beaumont has announced, that they will not perform abortions unless they are in the instance where there is a question of the safety of the mother. And so that chilling effect is already taking place. It’s already happening in our state.

 

Dana Nessel: Well, so they walked that back just yesterday, and they did because they, you know, I think it’s a few reasons. One, they had so many calls from so many electeds who were very upset about that because that is not the state of the law right now. They don’t have, I mean, they can’t perform abortions right now without those hazards. But also, I think there were a number of patients who I knew who–and I’ll just give you an example–I spoke to–she’s fine with me saying this publicly–state representative Regina Weiss, who represents Huntington Woods and, you know, surrounding municipalities there, she is four months pregnant with twins and she goes to a Beaumont doctor, and she said, I’m really scared. What if something goes wrong with my pregnancy? I’m switching doctors. And so I think there were enough people that threatened to switch doctors that since it’s still legal here and theoretically, there are other health care systems that will provide abortive procedures if necessary, I think it was, I think it was a business decision, not really, because they had a misunderstanding of the law.

 

Dr. Abdul El-Sayed: It demonstrates, you know, the way that a ruling like this will filter through bureaucratic decision making and all of the other incentives that an institution faces to shape the decisions that folks make. I mean, it has turned the tide on thinking in a way that the consequences of which we’re not fully going to understand for a long time to come. When I saw it, I was like flabbergasted that this was the case, but you can come to appreciate where a institution might say, Well, this is where we think things are going, so we might as well get ahead of it now, or we can leverage the Supreme Court’s smokescreen here to appeal to a particular segment of the population and engage in the political overtures that this is already allowing us to make.

 

Dana Nessel: Let me just interject something that I know it’s not comfortable to talk about, but we have to have this conversation. There were 28,000 abortions in Michigan last year, roughly. So let’s, you know, theoretically, if those 28,000, you know, children are born, what is the state going to do with that many children who are, many of them will be children that that, you know, were aborted because they could not, their parents could not afford to raise them, so many of them will go into the foster care system. Many of them the reason that the for the abortion were because of some really significant, you know, physiological issues, you know, or, you know, the child was going to be born with some really profound challenges, and so the, you know, the mother may have decided or the parents may have decided to abort for that reason–what are we going to do to help all of these kids that face all these extreme challenges? We’re already failing with the foster care system as it is right now. The state is constantly facing significant lawsuits because not enough money is placed into the foster care system. And how are we going to manage that? Because I haven’t heard anything for the Republicans in the legislature who applied this ruling, I haven’t heard anything about appropriating additional money to help poor women who during the course of their pregnancy, I haven’t heard anything about what we’re going to do to assist. I mean, you know, that’s a lot of additional children that will be born that will require, I mean, an insane amount of resources. And again, are we just trying to ensure that these children are born and then we don’t care what happens to them afterwards? Or are we dedicated to helping them after the point in which they come out into the world?

 

Dr. Abdul El-Sayed: You’re raising this point where the only way you can plausibly call their agenda pro-life is if you think life ends at childbirth. Right? Like, there’s no investment in people who are alive today. No, you couldn’t conjure a world where the same folks who have taken away and worked so hard to take away the rights under Roe v. Wade would also support universal child care or paid family leave to be able to care for that infant born in the first three months of life, or universal pre-K for that kid when they turn three-years old, or health care expansions into their childhood or adolescent or adult life. I mean, so it is this notion that you just, you only care about that point to birth and then you let go. And it’s absurd to me. And your point is, is well taken. What are we doing, such that we are invested in people who are actually born? And without that kind of expansion, we’re going to be in a situation where we’re left with children whose parents do not have the means to be able to care for them, and where the state has fundamentally disinvested in the system as it stands to care for them. And you appreciate the incoherence, the hypocrisy of this position when you think about it that way.

 

Dana Nessel: Well, you know, that’s what really bothered me, of the many things that bothered me, about the majority opinion written by Justice Alito, is he goes to great lengths to talk about like, Oh, look at all the childless couples out there that would love to adopt these kids. And it’s so naive to say that. I’m sure there is quite a market for perfect little, you know, no health issues, little white babies with blond hair, blue eyes. I’m sure they would get snapped up in a second–but let me tell you this, the children that don’t get adopted, children, oftentimes children of color, but many, many times children with these extreme challenges mentally or physically, that is a lie. It is a lie that was told to us in this Dobbs decision by our Supreme Court justices who said it would be no problem to find homes for all of those kids. That is completely untrue. And I can tell you what the outcome is for kids that age out of the foster care system, and let me tell you, it is dire. The percentages of kids that age out of foster care, like many of these kids, again, you know, children of color, children with significant handicaps–you know, these are, when you talk about the stressors on the system, these are kids that are likely to grow up to have have drug addictions or, you know, commit criminal activity and end up being incarcerated or, you know, various other–you know, many, many people who age out of foster care end up homeless. So these are other externalities that nobody’s talking about. And I think it’s time to have a discussion about it because it is going to cost our state a lot more money. And are we prepared to spend that money? I know that I–and you’ll remember this very well, Abdul–the Right to Read case, the Gary Bee case, where, you know, emergency manager had taken over the Detroit Public School system and the state was basically doing nothing to provide an adequate education for these schoolchildren in the Detroit Public Schools and was not teaching them a minimum standard of education so that they could learn to read and write, and the argument being made by the plaintiffs and that I later made on their behalf was that there was a constitutional right for at least a minimum level of education. Because why create a right to a public education, but then say it can be the world’s worst education? You’re basically just warehousing kids for a certain period of time during the day, and that’s it. And, you know, this was fought tenaciously. It was fought tenaciously by Snyder when he was governor, and the Republicans in the legislature sure as hell did not want to pay for additional funding for the schools that could create an environment where all kids were entitled to be taught to learn to read or write. We didn’t even want to teach our kids to read or write, but they have to be born. But then whatever happens afterwards, as you suggested, you know, that’s nobody’s business. It’s certainly not the state’s concern.

 

Dr. Abdul El-Sayed: The other part of this, which is incredibly disingenuous, is that the same people who want to impose forced pregnancy want to make zero investment in preventing pregnancy that is unwanted to begin with. And that is another piece of this that I just cannot wrap my mind around, to say that, you know, we’re not going to invest at all in helping you prevent an unwanted pregnancy. And then if you should get pregnant, we are going to take away your right to a safe, legal abortion, and then we’re not going to invest in the child after they’re born. It is just absurd to me. And when you look at Planned Parenthood as an organization, they spend 97% of their dollars on pregnancy prevention. And so I just I can’t understand the world where you think that somehow the pregnancy that is forced is the best possible outcome, because that’s the world that they’re constructing.

 

Dana Nessel: Yeah. And it’s even worse than that because obviously, you know, not only did Justice Thomas in his concurring opinion talk about the thought, you know, he believes that Griswold  Connecticut was wrongly decided. And that, of course, was the seminal 1965 case that made abortion access legal to all in this country. But, you know, all of the Republicans who ran against me and the one who is still running against me, they believe that Griswold v. Connecticut was wrongly decided, and that would allow the state legislature here and in all states to, you know, create a new felony for those who want to sell and purchase and use birth control, they can literally make it a crime in this state to engage in safe sex.

 

Dr. Abdul El-Sayed: It’s obscene.

 

Dana Nessel: So now only, of course, is that a birth control issue, but it’s also for sexually transmitted diseases, it’s also a very, very bad idea to do that. But, you know, it’s, I feel like the religious right has completely taken over this country and they’re making decisions for all the rest of us, even though the vast, vast majority of Americans want birth control, of course, to remain legal. Including, you know, Catholics, where it’s part of, you know, their religious doctrine not to use it, most do. And yet we have this tiny fraction of the public, or I should say, those in positions of power who are making decisions for all the rest of us, and I think that our our allies overseas are just absolutely horrified by what’s happening in America right now.

 

Dr. Abdul El-Sayed: To your point, this wasn’t the only Supreme Court case that came down. Just last week, we saw a case that interpreted the Second Amendment in the most extreme way, which gets us to this world where anyone can have any gun anywhere at any time, in a case out of New York and Bruen. And we’ve also seen a case that they’re about to rule on around the administrative state and what agencies like the EPA or the FDA can do in terms of interpreting the law and being able to promulgate rules. We’re seeing a major takeover, almost, by a minoritarian piece of our society through the courts to rewrite the rules of American life. What do you make of this and how do we fight back?

 

Dana Nessel: You know, I don’t usually pitch, you know, books or anything while I’m doing interviews, but there’s this book I read that just sort of explained everything to me called Smart–sorry–“Dark Money” that came out a number of years ago. And it sort of explained this long-term plan by the Koch brothers, the DeVoses and many others, to how they were going to eliminate basically all environmental regulations and some of these other incredibly, you know, dicey topics like, you know, the Second Amendment issues and like abortion and all the rest of it. And their plan seemingly has really worked out well for them. They were really in it for the long game. But the only thing I can say, because it’s going to be hard with the United States Supreme Court, the makeup being what it is, the fact that the three Trump appointees are all very young–and when I say very young, I mean my age.

 

Dr. Abdul El-Sayed: It’s still very young.

 

Dana Nessel: Well for a Supreme Court justice, understanding that those justices from an actuarial standpoint, you know, will probably have another three decades on the bench. That’s a long time. So the only thing that we can really do is, I mean, honestly, just vote, vote, vote, and make sure that we keep both chambers federally, both the Senate and the House and the Presidency. And in terms of the Senate, we have to, we have to get additional Democrats in the Senate who will defy the filibuster, or so many Democrats that it won’t matter, but I think the more realistic approach would be to elect a few more Democrats. And in the state legislature and for the governor’s office, we have to do the same thing. And that way we can actually make progress. A lot of the interpretations of these federal laws, I mean, if we had specific federal laws in place, it would be a great assistance because we, for instance, when you look at something like, you know, marriage equality, right? We don’t have a federal law that says that marriage equality is the law of the land and that it has to be permitted and there has to be reciprocity for marriage’s in another state in every single state in the union. If we did, we really wouldn’t have to worry about Obergefell v. Hodges, the seminal ruling on this, because that’s only necessary for the states who wouldn’t don’t otherwise make it legal. And so if you had a federal law, you’d be okay. Likewise in Michigan, if we had laws in place–now, at this point, we’d have to repeal a constitutional amendment, but we could, we could do it. But if people are going to sit out an election and if they’re going to vote each and every time–and I mean, it matters for local school boards too we know now, because, you know, COVID taught us that–but at least every two years on the even years, I mean, people, you know, have to practice voting every single time. And it’s very easy to get information about candidates now with the Internet. I mean, maybe it wasn’t so easy 30 or 40 years ago, but it sure is now. All you got to do is just follow whoever that individual is on social media, and you’ll probably see what their viewpoints are in a number of subjects. But, you know, you can see, who does Planned Parenthood endorse and who don’t they? Who does the NRA endorse, and who don’t they? I mean, I have an F rating from the NRA and I’m very proud of that. So, you know, instead of taking, I understand that people want to ignore politics and it’s so overwhelming, and there are things happening every 3 minutes and you don’t know who to believe, but this has to be a regular function of people’s everyday lives or our democracy will cease to exist. And we’re on the cusp of that right now. We’re seeing what happens when people stop paying attention and the government can start doing whatever it wants because you haven’t investigated enough, and you haven’t invested enough to, you know, to vote and to vote wisely.

 

Dr. Abdul El-Sayed: Yeah, I want to make sure that folks understand that you are on the ballot and your work and your efforts are critical, as are the efforts of our governor, Gretchen Whitmer, and the opportunity that we have to finally, finally take back what had been a gerrymandered state legislature. And, of course, you know, if you care about democracy, to protect Jocelyn Benson, who was critical in protecting the vote in Michigan in 2020 and will be in in 2024 as well. And so I want to ask folks, where can they go to learn more about you and support you and your campaign?

 

Dana Nessel: Well, you can go to my website DanaNessel dot com, and that has a lot of information on that, or honestly I’ve kind of been in the news a lot lately. You could probably, you know, Google me and find out a lot of information. But, you know, I think it’s critically important to, you know–if you’re listening, if you’re listening to this podcast, you are very interested in these subjects. But, you know what? You might have friends or family members or people in your community that aren’t as tuned in. And I think it’s incumbent upon all of us to make sure that each and every person understands the consequences of sitting out this election. And I know that people are sick and tired of hearing like, Well, this is the most important election of our lifetimes. Okay, well, now it’s this one. Well, now it’s the next one. Oh, gosh, when is it ever going to end? Well, it is never going to end. That’s why you have to vote every time. Every election is important, but this one now is especially important because the people who are running against, for instance, myself and Jocelyn Benson, we won’t know who the final person is, you know, obviously, running against Governor Whitmer until the primary is over in the beginning of August, but we do know who the opponents will be for myself and for Secretary Benson, and these are the most far-right, fringy candidates that have ever appeared on the ballot for a major party in the history of our state. Now really, I’m not, that’s not hyperbole.

 

Dr. Abdul El-Sayed: It’s true.

 

Dana Nessel: Republicans will tell you that.

 

Dr. Abdul El-Sayed: The proud of it.

 

Dana Nessel: So. Yeah. And I mean you have individuals here when you talk about I mean, irrespective of your views on gun rights, on abortion, on, you know, LGBT equality-related issues, irrespective if you just believe that the person who receives the most votes should be the person who wins our elections, then this should matter to you. And there’s actually a lot of Republicans I think will support both myself and Jocelyn Benson, because we are committed to the fact that it’s our job to defend the will of the voters, whatever that may be. And all we want is to make sure that everyone who’s eligible to vote has an opportunity to vote and that their vote is properly counted. The end. And so if we remain in office, and in 2024 if Trump is on the ballot and if he legitimately wins the popular vote here in Michigan, then, you know, Secretary Bentsen and I will fight tooth and nail to ensure that he gets our 15 electoral votes. Now, I’ll likely leave the country the next day, but I will make sure that the winner of our elections gets certified, you know, irrespective of what race it is, because that’s how democracy works. But that’s not the opinion of the people who are running against us. They are there to install Donald Trump into his second term and for no other reason. And they have said as much, and he has said as much. So if you believe in the concept and the notion–an antiquated notion–of democracy, then you really have to support, you know, Jocelyn Benson and myself. I know we’re down-ballot. It’s not as sexy as being a United States senator or being a governor. But this time, especially, our offices are equally as important.

 

Dr. Abdul El-Sayed: Absolutely. Well, Attorney General Nessel, we really appreciate you taking the time to chat with us and share a perspective on what it will take to protect and defend reproductive rights in Michigan, and on what’s at stake in these next elections. You can learn more about Dana and support her at DanaNessel dot com. Dana, we really appreciate you.

 

Dana Nessel: Thanks for having me on. I appreciate it.

 

Dr. Abdul El-Sayed, narrating: A special thank you to AG Nessel for joining us today on short notice. If you’d like to learn more about her fight for reproductive rights and supporter, check out DanaNessel dot com. There is, of course, so much happening around the world of health and society this week, but I really wanted to focus our attention on this one today. We’ll be back with our usual format next week. That’s it for today.

 

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