The Coming Battle Over Reproductive Rights

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, the hosts are talking about reproductive rights and how the Supreme Court could rule on related cases under another Trump presidency.

Two years after the court overturned Roe v.

Wade, states have enacted laws around access to abortion and reproductive rights that have caused chaos and fear for people seeking those services.

When the Dobbs decision came out, it was going to be chaotic.

It has completely disrupted the landscape for reproductive care in the United States, and it's made almost every woman in the country a reproductive refugee to some degree.

Former President Trump has said that he opposes a national abortion ban, but the Supreme Court might be prepared to support an existing law that would essentially achieve the same thing.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5 to 4, where we dissect and analyze the Supreme Court cases that have brought our nation's progress to a halt, like Donald Trump bringing a town hall to a halt so we can listen to music.

I'm Peter.

I'm here with Rhiannon.

Hey, he's vibing.

He's got a vibe.

This is going to be old news by the time this comes out.

Yeah.

It's not even new news now, but...

That was one of the weirder things I've seen in the past few months.

Yeah, cut the questions.

No more questions.

We are just going going to, you know, captured audience.

You're all going to listen to this music and you're all just going to watch me dance to it.

He's like,

who wants to hear questions anyway?

Right here.

He said that to people gathered for a town hall.

Yeah.

And then he just started requesting music.

But he's such a little queen that it was all weird ass music.

So he was like, he requested Ave Maria.

Did you see that?

And then they played one version and he was like, no, the Avarati.

I will say this also, not to turn this into something serious, but the media like didn't do a great job of expressing and conveying how bizarre that was and how fucked his brain appears to be.

And so, I think if Trump wins, there's going to be two surprises.

One is everyone's going to be like, oh, he's an authoritarian fascist, because like the New York Times has been portraying him as like center-right for the last several months.

And two, they're going to be like,

they're going to see shit like that.

Yeah.

They're going to see shit like him just dancing on a stage in front of the White House press corps for 20 minutes and be like, well, this doesn't seem right.

This doesn't seem like a normal man.

Doesn't seem like a president, but that is who we have.

Weird.

Yeah.

Michael, as you can tell, not with us this week.

He was like, hey, can't record.

And we were like, yeah, no problem, dude.

And then last night at 9:30 p.m., he posted that he was going to try to 100% Super Mario World.

Words that I barely understand.

And you know what?

I support it.

Whatever.

I mean,

we give PTO, and you can do with it what you want.

All right.

Today we are talking about the state of reproductive rights.

This is the latest in our Decision 2024 series

leading up to the election.

For this episode, we are talking about reproductive rights from what's happening at the state level to what's happening at the Supreme Court and what the plans for a Trump second term might be.

We are well over two years past Dobbs now, and we're starting to get a feel for the landscape of reproductive rights, both on the ground and in the courts.

And so we want to sort of relay that, but also talk about what seems to be coming up the pipes.

Yeah, yeah, totally.

And I think with reproductive rights and reproductive justice cases coming up the appellate court system to the Supreme Court and how the Supreme Court has been handling these cases and related issues over the past several months, I think you kind of see two things, two

themes really make themselves clear.

One is this is the mess that Dobbs made.

Overturning Roe created an absolute shitstorm, cluster cluster fuck, burning pile of garbage across the federal court system.

And so you have all of these new issues around abortion, abortion care, reproductive rights, contraception, what have you, right?

IVF that because Dobbs overturned Roe, now you have this legal mess that the Supreme Court created.

The other thing I think that we should be highlighting throughout this episode is how the Supreme Court is posturing around these cases and these issues, issues, knowing that, you know, at the time of this recording, we're three weeks away from the election.

Yeah.

And how the Supreme Court is really running PR for the Trump campaign and very clearly aware of its image to the public and how its image relates to what is going to happen on Election Day.

Yeah, I think one of the takeaways from the aftermath of Dobbs is just how much stability a federal rule can put into place.

Because now you have sort of the chaos of every state acting on their own.

And not only does that create 50 different rules, it creates uncertainty and confusion across the country.

People don't always know what the law is, right?

It's always, not only does it vary state by state, but the rules within states are less clear.

This is sort of the dark underbelly of federalism, I suppose.

It's not all like, ooh, we're competing in the marketplace of ideas and which state will win.

It's more just like a bunch of dipshits creating confusion for everyone.

Exactly.

So I want to talk about the people on the ground organizing for abortion rights and what they're doing a little bit.

Shortly after Dobbs, we saw a wave of organizers acting to protect abortion rights, especially at the state level.

The first high-profile fight was in Kansas in 2022, 2022, where voters overwhelmingly opposed a state constitutional amendment to prohibit abortion,

which, considering how conservative Kansas is, sent a message to organizers across the country that this was potentially a winning issue, even in red states.

We saw similar wins in Kentucky and Montana.

There were also successful referendums to create state rights to an abortion in California, Michigan, Vermont, Ohio.

And now in 2024, a bunch of states have abortion on the ballot.

Nevada, Arizona, Colorado, Montana, Nebraska, South Dakota, Missouri, New York, Maryland, and Florida all have proposals on the ballot that would enshrine a right to abortion in the law.

Yeah, the idea being that, like, okay, give it to the voters then.

If we, the Supreme Court hands down this position, overturning Roe, the Supreme Court says, oh, this issue should be left up to the states.

So, states organizers in these states are putting this issue on the ballot, saying, Okay, voters can decide: do we want to enshrine abortion protection into state law?

Yeah, this is what Dobbs ostensibly did, return the choice to the states.

Yeah.

And people are like, cool, let's vote on it.

Yeah.

And Republicans are like, absolutely not.

Yeah, yeah.

No, no, no, no.

That's not what we meant.

We are seeing Republicans in many of those states scheme to make sure that this doesn't happen.

Ron DeSantis in Florida appears to be targeting the group that initiated the petition to get abortion access on the ballot with investigations.

It's possible that they're targeting those individuals to make an example.

It's possible they are laying the groundwork to challenge the outcome of the initiative altogether.

We will see, I suppose.

In Missouri, the Secretary of State, Jay Ashcroft, who previously certified the ballot measure, claimed in a public letter in September that he had decertified it.

Causing the state Supreme Court to step in and say, like, no, you can't do that.

Right.

Like, to be clear, there's like a formal process for certification of a ballot measure.

So, like, he officially certified it, and then he just like published a letter being, like, I have decertified it.

And the state Supreme Court had to be like, No, no, you didn't.

You can't do that.

There's like forms and

real things for that, Jay.

Yeah.

Plus, you have states like Arkansas, where there was an effort to put abortion on the ballot, but the state attorney general rejected all of the collected signatures.

And the state Supreme Court sided with him in what I believe was a four to three decision so yeah this laboratories of democracy folks uh are beautiful are beautiful states what an idea

just it's just non-stop bullshit at the state level

i don't think anyone believed the argument that republicans sincerely wanted to return this issue to the states, but it's still annoying to watch it play out and be like, ugh, you fucking pieces of shit, dude.

Like they spent so long being like, this is all about state power, state rights, government overreach, et cetera.

As soon as it returns to the states, they're like, you can't vote on this.

No.

No.

And you know, another way the Supreme Court and the federal court system kind of washes its hands of

these issues when it says like, oh, we just return it to the states is that then, you know, these become really matters arguments about state law, where a lot of times the federal courts aren't going to have a say.

So it's going to be state courts interpreting state laws about

how does an issue get on the ballot?

And then if the votes are counted in this way, is that the correct way to count the votes?

Like the federal court system and the Supreme Court has an easy out to be like, oh,

this isn't actually a case where we have jurisdiction or we have review power because this is state law being interpreted by the states and that's it.

So, yeah, real cheeky.

Turning to federal courts, though, and conservative legal strategies in the different cases that we mentioned are percolating up and down the appellate court system.

You know, we've talked previously about the evolution of religious freedom arguments, arguments posed by the conservative legal movement on a plethora of issues, whether that is LGBTQ discrimination or in reproductive rights contexts.

These are arguments that conservatives are posing

in federal courts that say that, wait a second, we have freedom of religion and we cannot be forced to do something that would go against our, you know, sincerely held religious beliefs and our religious values.

And so that's why we can't be a cool and fair and just society.

One such case, just an example, there are many such cases in lower courts right now, and it remains to be seen what the Supreme Court will do about them.

One such case is Catholic Benefits Association v.

Burroughs.

This is a case that started in North Dakota, in federal court there.

It has to do with a 2022 law called the Pregnant Workers Fairness Act.

This is a law passed by Congress that provides for accommodations, reasonable accommodations in the workplace for pregnant people.

You know, in a general sense, saying like, you can't get fired because you have to go to the bathroom a lot when you're pregnant.

Or if you're pregnant and you work at a job where you have to lift heavy objects while you're pregnant, you get the reasonable accommodation that maybe you have a maximum weight that you, you know, pass that you're not expected to lift on the job.

Things like that.

Now, the EEOC promulgated a rule to enforce this law, promulgated a rule that it handed down to employers that says, you know what, accommodations related to abortion and IVF are also included in these protections.

That should also be included in this law.

So, for example, if you need to take a day off of work for IVF treatment or there's a workplace accommodation you need because you recently got an abortion.

This rule handed down by the EEOC would say like, you can't be fired for that.

Your employer in the workplace, you should be given a reasonable accommodation for these things also.

Now, note, this doesn't have anything to do with insurance.

This rule is not requiring the workplace, the employer, to provide insurance that covers any of these things.

It's literally just about like your job is protected and you should get reasonable accommodations at work for these issues, pregnancy-related medical issues.

By the way, this is where I would usually chime in with some employment law insight, but this is the first major federal employment law passed after I was fired.

So I stopped paying attention.

I don't know what this law is about.

Yeah, he hasn't read up on this one, guys.

So, religious freedom, religious freedom coming in here.

The Catholic Benefits Association and the Bismarck Diocese in North Dakota brought a lawsuit.

They sued saying they don't want to do this.

They do not want to provide these accommodations as employers to their employees.

And they asked the federal court for an injunction on the implementation of this rule.

Federal judge Trump appointee Daniel Traynor in North Dakota gave it to them, issued that injunction.

So this rule, again, handed down by the EEOC, is currently not in effect for members of this association, the Catholic Benefits Association and the Bismarck Diocese.

This includes about 8,000 employers, includes thousands of churches.

The rule to provide these reasonable accommodations related to IVF treatment, related to abortion in the workplace, does not apply to these employers right now.

And in that district court decision, Judge Daniel Traynor wrote: quote: It is a precarious time for people of religious faith in America.

And he criticizes, quote, the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.

Look, it's not new, people, right?

We have seen this time and time again.

These are the arguments that are being made across the country in federal courts about all kinds of issues the conservative religious freedom argument sort of searching for religious carve outs for the requirements yeah the the kim davis method right yeah yeah exactly as soon as gay marriage became legal they found their avenue with kim davis you know do we does any individual like sure you have a right yeah to X, Y, and Z perhaps under federal law, but does any individual actually have to accommodate you?

Not exactly.

Not if they don't want to.

Exactly.

At which point, you wonder what the purpose of the right is.

If every asshole can say that they don't actually owe you anything under the law.

Yeah.

What's the purpose of the law then?

Just want to point out without getting into any of the other cases, this is also an argument, the religious freedom kind of religious carve-out thing.

This is also an argument being made around doctors having a right of refusal to give certain treatment, certain care.

We've heard that before.

I just want to highlight that those are cases happening right now too.

Not just doctors.

A lot of these end up manifesting as like

administrative assistants who work for doctors and don't want to process paperwork, for example, for someone seeking an abortion.

Yeah.

That's really close to the Kim Davis example.

Kim Davis, just like a clerk at a county who would be issuing marriage certificates for gay couples, just saying like, no, I don't want to fill out the paperwork.

Right.

Creating a situation where you basically can't do the job, and yet conservatives in this country are like, not only can you not fire her, but we are going to put her on a stage, and everyone will clap.

Yeah.

Yeah.

So one of the big lingering legal issues is about the right to travel across state lines seeking an abortion.

Yeah.

Alabama, for example, can ban abortion in the state, but a person seeking an abortion could still travel to another state where it's legal in order to get one.

Republicans have been trying to crack down on that.

The Alabama AG, turns out Alabama was not just an example, said he would apply conspiracy charges to people who assist others in getting abortions out of state.

The Idaho and Tennessee state legislatures passed laws.

cracking down on people who assist minors in going out of state for abortions.

These are just a few.

There are other laws.

The bottom line with these is that they've almost all been challenged in court and either struck down or at least put on hold because even though there's no longer a constitutional right to an abortion, there is a constitutional right to travel.

This is something Kavanaugh mentioned in his Dobbs concurrence.

And what that right to travel means is that you can go to other states to do things.

that are legal in those states without being punished in your states, right?

That is part of the right to travel.

So conservatives in these states are doing two things.

One, stress testing these protections to see how far they can get.

And two, creating a culture of uncertainty and fear around abortion, right?

So, people don't quite know what's legal and what isn't and don't want to chance it.

Yeah, this is like chilling in the First Amendment context, right?

Chilling speech.

Like, you just create so much uncertainty, or vagueness, or fear that you will be punished for speaking, for using freedom of speech and freedom of expression, that you just don't.

Right.

And this is a big part of the anti-choice strategy across the country.

They are relying on ambiguity and confusion and intimidation to dissuade people from seeking reproductive care.

So in many states, for example, there are rape and incest carve outs, right?

You can seek an abortion in cases of rape and incest, but

the boundaries of that are pretty difficult to establish, right?

A woman seeks an abortion claiming she was raped.

If you are a district attorney somewhere, you could claim that she wasn't, right?

You could claim that the burden is on her to some degree to establish it.

Even if those sorts of cases aren't brought, even if that doesn't really happen, no one seeking an abortion quite knows what's going to happen when they go to seek it in one of these states.

That gray area, that ambiguity, has a chilling effect.

We've seen this work in other contexts.

Alabama has been trying to limit IVF access.

And even though they haven't been entirely successful, a hospital that provides IVF services in the state has decided to stop because of the risk of litigation, meaning essentially that they know that they will be targeted by the state with litigation.

And even if they win, they can't really afford that, right?

Yeah.

Yeah.

There's a financial cost.

It's stressful.

You could lose.

You never quite know what's going to happen.

That is part of the attack here, right?

So So these states will say, well, technically, this is X, Y, and Z is legal.

Technically, you can seek an abortion if you were raped.

Technically, you can provide IVF access, but in practice, you don't know whether you will get prosecuted.

You don't know whether you will get sued.

And if you do,

the Constitution doesn't just show up to defend you.

You have to hire a lawyer.

You have to defend yourself.

There's a risk that you lose.

People don't want to risk that.

That sort of culture of fear is very important to the anti-choice movement.

Yeah, yeah.

You know, there's a term for this.

This is a sort of version of lawfare, a play on the word warfare.

Lawfare being like using the law and legal institutions to, you know, yes, delegitimize an opponent, but also to like suck an opponent's resources, to distract an opponent, to instill fear in an opponent, and ultimately to discourage, in this situation, people from exercising their rights.

You know that the right is using a lot of lawfare lately because they've started to accuse the left of doing it.

They've started to say that the left is using lawfare against Donald Trump.

And as soon as I heard them starting to use that term, I was like, man, what are they?

What's going on on the right that they are now projecting this?

Yeah.

And yeah, it's stuff like this.

Every conservative accusation is a confession.

Also still percolating, mifopristone, medication abortion issues in the courts.

The Supreme Court earlier this year decided not to enforce a ban on Mifopristone or anything like that,

and sent it back to lower courts.

Matthew Kazmerich, the evil, ghoulish judge in the Northern District of Texas that originally had that Mifipristone case that got sent up to the Supreme Court, has it again.

There are lots of new legal arguments being made now.

We're going to talk about the Comstock Act in just a little bit.

The Administrative Procedures Act is being brought in.

So, you know, just the intersection of federal law, the administrative state, what Congress can do, the powers of the FDA, standing for doctors who don't want to prescribe this because of religious carve outs, a ton of these issues sort of intersecting and layering on top of medication abortion right now.

And then want to note too that it seems like maybe a month or two ago, Donald Trump on the campaign trail was asked if he would support a ban on Mifopristone or, you know, kind of beef up the FDA for the FDA to come out with a Mifopristone ban.

And, you know, of course, it's fucking Donald Trump.

So Donald Trump's like, yeah, absolutely.

Would I consider it?

Sure.

I'll consider that.

Yeah, that's one of those Trump things where you don't, you don't quite know if it's on the agenda.

Surely it is on the agenda of the broader party, but you can ask Trump anything.

Would you be willing to do this?

And he'll say he'll consider it.

So

hard to know.

what is actually being considered and what's not.

Yeah.

I think the takeaway or the thing to walk away with is that if they see it as politically beneficial to them, then yeah, they'll do it.

Like there isn't a ceiling, there isn't a red line for them on reproductive rights.

I think a lot of the stuff, as we turn in a couple minutes to the Trump administration, the bottom line is that the right-wingers under Trump want to do all this stuff, right?

They would love to ban Markstown.

For them,

it's a matter of: can I either one convince Trump or two, do this without him noticing or caring, right?

Yeah.

Two is always the easier option.

He's not an ideologue, really, right?

He's just a reactionary.

And so a lot of the right-wing agenda, like all this Project 2025 stuff, he doesn't care about 99% of it, but he is willing to entertain it because these people are loyal to him.

And I think that's the real risk with stuff like Mifepristone.

If you just put it to Donald Trump, he'd probably say, no, I don't want to do this particularly.

Right.

This is not an issue he cares about.

But it doesn't really matter because he's not the one who is driving the issue in the Republican Party.

Yeah, exactly.

Exactly.

I want to talk really quickly about how some of these cases regarding reproductive rights are really bring out a tension between, you know, the power of the federal government over the power of states.

One case example right now has to do with Title 10.

This is Title X regulations that are promulgated by the Department of Health and Human Services.

These are basically rules and federal funding around family planning.

So the Biden administration had announced that it would withhold these Title 10 family planning dollars to state facilities and to states if states were not complying with delivering abortion counseling.

and abortion referrals to patients who were coming to these state facilities looking for family planning advice.

This is a very typical sort of relationship between the federal government and state governments regarding federal funding of programs.

The federal government says, we have this money for you states, but only if you comply with XYZ federal rules will we give you this funding.

Oklahoma, now joined by a few other states, asked for an injunction on this Biden administration.

ruling.

They want the federal family planning dollars.

They do not want to comply with the federal rules that say, okay, in your family planning facilities, you have to give advice on abortion counseling and abortion referrals.

So that case is still pending.

But another kind of bigger case where there has been a non-decision decision, but it is about, again, this relationship between the federal government and state governments is a case about Mtala.

So listeners will remember that there was an MTALA case that was decided by the Supreme Court this past summer.

Now, Mtala is a federal law that requires that in an emergency room, the emergency room has to give life-saving

medical treatment in emergencies.

And the Obiden administration had said life-saving medical treatment includes abortion care in emergency situations.

Idaho, the case that came to the Supreme Court over the summer, Idaho had an abortion ban.

They passed an abortion ban.

It had steep criminal penalties, penalties that included that doctors could lose their medical licenses by giving abortion care.

And so Idaho wanted not to have to abide by the federal law of Imtala by giving abortion care in emergency situations.

Now, a lot of people were scared that the Supreme Court was going to rule that, yeah, Idaho doesn't have to follow federal law, but they didn't do that.

They actually dismissed the case as improvidently granted, even though the Supreme Court had granted the case themselves, then said, oh, never mind, that wasn't granted properly.

So

Mtala was left intact and Idaho couldn't ban abortion care, even in emergency situations.

But

there wasn't this like final decision.

There wasn't a ruling on the merits.

Can a state basically not pay attention to a federal law, which typically legally supersedes state law?

And this is also a good example, again,

of

how these gray areas benefit the right.

Federal law has basically a safe harbor for

life and limb saving procedures, so to speak, right?

And that means that even if you're in an anti-abortion state, you can and are compelled to provide emergency care, including abortions.

But there's a gray area here, right?

What exactly are the circumstances where someone's life and limb is in danger, right?

These things are not entirely clear.

And because of that, any doctor who provides care is going to be risking prosecution or liability.

That uncertainty, again, just has this overarching, chilling effect.

And you see it all around the country, like all through these issues.

Yeah, exactly.

You know, I want to point something out that Alito Thomas and Gorsuch said in that Idaho case over the summer.

They said, well, Mtala could actually be read as a fetal personhood statute, right?

That if Mtala is...

Because what about the life of the fetus?

You ever think about that?

Exactly.

Exactly.

If this is an emergency situation in which the federal government is requiring that medical treatment be given to save a life, well, the fetus's life is in danger.

Yeah.

And we talked about why this is stupid and when we covered this, but

again,

this is, I think, it's very important to realize that like

if a state actor wants to prosecute you, you are in danger.

Right.

And so if you're a doctor providing reproductive care, if you're a woman seeking reproductive care, these states will want to prosecute you.

And

that creates this precarity no matter what federal law says.

Exactly.

That's what's so dangerous here.

Yeah.

Now, the update on this case is sort of a non-update, but it's important to discuss anyway.

A couple of weeks ago, the Supreme Court denied CERT, said they would not take a case about a very, very similar issue, this time out of Texas and the Fifth Circuit.

The question in that case is whether Texas's abortion ban can supersede MTALA, the same federal law.

And the Supreme Court denied CERT, which, in terms of the procedural posture of this case, that actually lets Texas's abortion ban stay in effect.

I talked to Professor Elizabeth Sepper.

She is a law professor at the University of Texas.

She teaches on reproductive rights, discrimination, and also religious freedom.

And she was pointing out how significant it is that the Supreme Court denied cert on this case, and no one's really talking about it from that perspective.

You know, back over the summer when the Supreme Court, you know, dismissed the Idaho case as improvidently granted, a lot of people in the media, a lot of law professors, a lot of people in general were saying that, oh, this actually shows the Supreme Court moderating a little bit on abortion.

Like maybe Brett Kavanaugh and John Roberts and yeah, and Amy Coney Barrett in particular, maybe they heard during oral argument how dire, how scary this would be for pregnant people, for Mtala not not to apply.

And, you know, they were somehow sort of like moved morally or something and decided to kick the case back to lower courts.

Liz Zepper pointed out in our conversation how, you know, the Supreme Court, actually, this is a PR move.

The Supreme Court gets to look moderate then with this case.

And in the denial of CERT on this new case from the Fifth Circuit, they get to look moderate again.

They get to not make a ruling that they want to make that will be wildly unpopular.

And what no one is talking about right now is that this is because of the timing of these cases coming up to court and that we have an election coming up.

So the Supreme Court is doing PR for itself, just kicking the can, not deciding cases that we know how the conservative supermajority wants to rule on these cases, but they're not doing it right now because they want to look a little bit moderate.

They don't want to shake things up for the election.

They're therefore helping the Trump campaign.

And after the election,

we will likely get a terrible Supreme Court ruling about abortion and abortion rights.

Yeah, I think the way to think about this is like the Supreme Court is mirroring the Trump campaign, right?

Yes.

The Trump campaign right now is doing their best to downplay their actual position on abortion, right?

J.D.

Vance is like on podcasts the last few years being like, yeah, you know, we should be banning abortion and just being mean to women.

That's my policy.

He gets up on stage and is like, women are beautiful.

You know, my mother's a woman and I would never want to see

any of them get hurt.

I think that,

and, you know, Trump is sort of purposefully avoiding the issue.

They don't, they, of course, don't run ads or anything.

The issue is a winning issue for the Democrats.

Everyone fucking knows this.

So what's the Supreme Court doing?

Running the same strategy.

Yeah.

Downplay abortion.

Yeah.

And I think that's what's so obnoxious about the media coverage of it, because

if the question is like, is the Supreme Court being political?

Well, what would they do if they were?

They would be running the same fucking PR strategy that the Trump campaign is, and they are.

Exactly.

Exactly.

Exactly.

And I think another point to make, too, is how media, and again, the discourse around what the Supreme Court is doing is missing something really important.

So, you know, there were stories after the Idaho decision that were like, wow, Amy Coney Barrett was so moved, you know, you know,

Brett Kavanaugh really saw the possible plight of women in Idaho, you know, and that's why they ruled this way.

But actually, you know, the headlines could have been quite different.

In this case, where they denied cert.

The headlines are, you know, like Supreme Court declines to take case, you know, leaving leaving the law where it is or like not disturbing the status quo, kind of laundering that supposed moderation when the headline could have been Supreme Court decides by denying cert that Texas doesn't have to follow federal law, right?

Like, cause that's actually what happened.

And then, you know, moving into a possible Trump administration and how that administration might be moving on reproductive rights and repro issues, you know, even in this case, even about Mtala, just like Alito Gorsuch and Thomas said in Moyle, the Idaho Mtala case, that, well, what if Mtala also includes fetal personhood?

Maybe that's a rule.

Maybe that's a policy that a Trump Department of Health and Human Services implements in 2025, right?

Could interpret that Mtala also includes a fetal personhood provision and that emergency services have to be given to a fetus.

Yeah, maybe that's a good jumping off point for like, what are the Project 2025 freaks thinking in the case of a Trump win?

Yeah.

Honestly, I couldn't possibly give you an exhaustive list of what Project 2025 actually includes with respect to limiting reproductive rights.

Just sticking to abortion,

they want to end medication abortion.

They want to end emergency abortions.

They want to heighten the harassment of abortion clinic staff and patients, basically removing some of the boundaries that have been put in place in different states.

They want to establish what's basically a surveillance system that mandates state reporting on abortion care patients.

On top of that, you have the big talk of the town, I suppose, which is the possibility of a national abortion ban.

We know that, you know, like I mentioned, J.D.

Vance has been advocating for this on various pervert podcasts, but has toned it down recently.

It's something that was part of the Republican Party platform for four decades until this year.

Probably because it's a huge political loser that they're closer to than ever.

You don't need to put it in the platform anymore.

You just do it.

Trump himself doesn't have any real ideological opposition to abortion exactly.

He also doesn't care if access is restricted.

He recently said that a national ban was off the table.

And then he said, but we'll see what happens.

So

it seems very obvious that the GOP wants to restrict access to abortion across the country.

It's slightly less obvious whether they want to pass federal legislation at this point in time.

And if they do, there's also a question of whether Congress actually has the authority to pass such a law.

In the past, abortion legislation has been passed under the Commerce power, largely, but conservatives have always argued that the commerce power is very narrow.

So, for example, when Congress passed a partial birth abortion ban that went up to the Supreme Court, Clarence Thomas said he wasn't sure that Congress had the authority to regulate abortion like this at all.

Yeah.

But that was like 2007.

This is a new era.

Law is faker than ever.

So who knows?

Maybe the most disconcerting possibility is that Republicans don't need to pass a national abortion ban because there's a law already in place that they can claim is an abortion ban.

The Comstock Act, a 1873 law that bans the interstate mailing and receiving of mail that is obscene, lewd, or lascivious, as well as any article or thing designed or intended for the prevention of conception or procuring an abortion.

1873, folks.

Again, 1873.

It is a law that we have that's still on the books, and they want to revive it.

They want to breathe massive life into this.

Historically, this was understood as only applying to illegal abortions.

But if you do a strict textual analysis, you can very easily argue that it applies to all abortions, and therefore it is illegal for medical equipment used in abortions to cross state lines.

Or medication abortion, mifopristone in the mail.

Right.

Yeah.

That would, at the very least, be devastating for abortion providers across the country, if not function as a de facto ban.

It's something that the Project 2025 freaks openly talk about.

It's something that Alito and Thomas have both poked around in oral arguments in recent cases about abortion.

So there's a real chance that Republicans don't have to pass a law, which would involve a bunch of

really politically dangerous headlines for them, right?

No one wants a national abortion ban.

They don't want to be the party that does it.

Yeah.

But they do want it.

So maybe they just mobilize the federal government to interpret the Comstock Act as an abortion ban and enforce it as such.

I think everyone agrees that that's the big risk, that it's probably a bigger risk than legislation because they don't really need to do much.

They just need to hand down a rule saying this is how we're interpreting the Comstock Act.

It'll get challenged, brought up to the Supreme Court.

Alito and Thomas are on board, right?

The question is, did they have three more?

Yeah.

Yeah.

So

I guess before we wrap, I want to point out one big picture thing, which is all the polls have shown

in this election, especially, but it's a trend that's been going on for 20 years, maybe

that party affiliation in this country is increasingly gendered, right?

The Democratic base

is now basically just women.

Or seen as such, yeah.

Yeah.

And the

Republican base is increasingly just men.

Race, for example, is still very salient in predicting party affiliation, but a little less than it used to be.

So you're having, for example, black men defect to Trump to some degree, not in the massive numbers that you've probably heard about, but in some capacity.

Yeah, Hispanic and Latino men as well.

Right.

But you are also seeing white women defect from the Republican Party to the Democratic Party.

As this shift continues, and I'm not saying that it necessarily will at this rate, but what ends up happening is that the Republican war against women's rights becomes an increasingly partisan issue.

It's not just about this sort of ideological viewpoint.

where the woman is subjugated to her husband, for example, in the home.

It is a broader struggle where women become a symbol of progressivism and men become symbols of reactionary thought.

And so the political subjugation of women is not merely this sort of like ideological output that stems from religious thinking and whatever else.

It's also a political strategy in and of itself.

It's something that becomes necessary to the success of the Republican Party and the reactionary movement within it.

I think that's very frightening to me because I don't think any of our listeners need to be convinced that the Republican Party is like anti-woman.

Sure.

But you need to understand that like the political independence of women is

the number one obstacle to the Republican Party.

And what that means is that the primary goal of the Republican Party longer term is going to become the political, cultural, and social subjugation of women.

So reproductive rights are like a foothold, right?

A way to strip away the independence of women in a way that bleeds over into the household, but also into the body politic.

Yeah, I think we've talked for the last two, three episodes about how fascism and certainly to talk specifically, the Trump campaign has been working hard to create in and out groups, in groups where you agree with us and you will be protected and you will be at the top of the social order, out groups that should be alienated, ostracized, attacked, they're not one of us and made an enemy of and made a sort of like a, and their ostracization and their isolation is actually a political goal of ours.

If you're in the in-group, this is an extension of that.

This is another version of that, you know, for in that sort of fascist framework and fascist thinking, in that fascist myth making about how society works and how history has worked.

It's not just one-to-one.

There is one cohesive in-group, but it's not just one out-group.

It's not just immigrants, right?

It's not just trans people.

It also includes, for example, gay people.

It also includes here in this case, women and pregnant people.

And so here you see what Peter's talking about, that the in-group is in this situation defined as

men who are the head of families, who want to maintain control over their families and by extension, maintain control of our society, that our society should be built around this idea of the nuclear family where the head is the straight white male.

And the out-group then is women and in their representation of sort of immorality or amorality, what they represent to the Republican Party as being uncontrollable, should they exercise their rights?

Should they have bodily autonomy that's recognized in law?

And so you see this in-group, out-group thing being also about sort of consolidating all that power of control over everything else, over everybody else in society, consolidating that in a small minority group.

Right now, the Republican Party, right now, mostly men, mostly white cis straight men.

Yeah.

And, you know, just to give this a little more color, I always think about this in terms of what Bell Hooks wrote about financial independence for women.

There is a line of argument that's sort of like, well, if you want to be a homemaker, you make that choice.

Sure.

And maybe you want your husband to handle the finances.

It's your choice.

And those choices are inherently feminist because it's your choice as a woman.

I don't have any like particular personal opposition to those choices.

But what Bell Hooks wrote is

That's not feminism.

Feminism is the liberation of women.

And in order for women to be liberated, they need control of finances.

They need the ability to exit from the situation that they are in if it becomes necessary.

And so what appear to be perfectly reasonable choices in a certain world can, in another world, become very dangerous.

And we are increasingly in that other world, right?

A world where reproductive rights are stripped away,

leaving many people functionally under the thumb of their partners.

That has downstream political effects.

It's anti-liberatory, right?

This stuff is bigger than even the reproductive rights of any given person.

Yeah.

You're setting up a system of control.

Yeah.

Right.

It builds a society where women, trans people are subjugated and men, cis men, are dominant.

It becomes the necessary output of that society.

The control within the household extends to broader society.

It extends to politics, culture, et cetera.

That's the world that they're after, right?

It's not just about punishing women, for example, although it is.

There are broader aims here.

I hate doing like handmaid's tale shit.

Yeah, like Armageddon for women.

Yeah, yeah.

I don't want to get into a caricature of what that might look like.

But I think if you read a lot of conservative writing, and God help me, I do,

you'd be surprised.

Yeah.

You'd be surprised how close it comes.

Yeah.

Yeah.

I want to make one final point too, which is about how these long-term efforts at subjugation of the quote-unquote out-groups is also about a transformation of the government itself and the government's role in our lives.

We could have a different world.

We could have a different country in which which the government of the United States was concerned with actual good governance, was concerned with FEMA being fully funded, for example, was concerned with making sure that people have access to health care, was concerned with people going to college, getting good jobs, a government that was concerned with climate change and a government that was concerned.

with genocide, right?

But instead, what you have with fascism through fascist ideology and through these long-term subjugation projects is the transformation of government into

a

system that controls people, that controls those out-groups, you know, reifies very, very strong class stratification in all different senses of class, whether that be economic class or, you know, racial hierarchy or otherwise.

And then the government on all of those other issues that it should be concerned with can ignore and or can do whatever it wants or you know align itself with corporations that have no concern for our society's well-being.

All of these issues, they're so important.

They're so important.

I'm not saying they're not important, but we also have to recognize how it is a massive distraction from what the government.

should be doing and how we should be able to hold government accountable to good governance, to actually governing and building a just and sort of like good positive society.

But instead, what we have is this.

Every headline, every political fight, every court case right now.

I mean, we talk about it all the time.

My God, like what could the Supreme Court be actually like contending with and deciding for us?

But instead, you know, this is what the federal courts are dealing with.

And yeah, laundering all that hate as legal.

Yeah.

I was going to do a bit where I just consistently try to get the last word in on the reproductive rights exercise.

You did it.

You did it.

Good job.

We'll end there.

No, this is is why we couldn't have Michael on today's episode.

Just the girlies, Peter and Rhianna.

We are sort of the girlies in the group chat.

I would say

in the group text.

No, you know what?

Sometimes Michael's a girly.

It's a girls' group chat.

I'm calling it.

Maybe it's just a girls' chat.

Yeah, it's a girls' chat.

All right, next week, the last episode, I believe, in our Decision 2024 coverage, at least until the,

I guess, probably inevitable attempted election steal.

Yeah, TBD, if it's the last one.

Yeah.

We'll see how it goes.

A case has hit the shadow docket of the Supreme Court

involving the constitutionality of the National Labor Relations Board.

Yeah.

Conservative freaks, Elon Musk and company, have been trying to get it declared unconstitutional.

Yeah.

And the Supreme Court's going to weigh in.

So we're going to talk about labor in a second Trump administration.

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